The new rule is the latest in a back-and-forth effort to expand or contract the reach of the MBTA, chiefly depending on who is in the White House. Revocation of the prior rule will have different legal significance depending on where you are in the United States, as the federal courts of appeals have been split on whether the text of the MBTA prohibits incidental take.
If you are within the jurisdictions of the U.S. Courts of Appeal for the Fifth, Eighth or Ninth Circuits (i.e., much of the western and central United States), which have held that the MBTA does not prohibit non-intentional harm to migratory birds, revocation of the Trump rule may not change the legal landscape that much. If you are within the jurisdictions of the U.S. Courts of Appeal for the Second or Tenth Circuits (i.e., New York State and a big chunk of the Mountain West), which have affirmed prosecutions for incidental take under the MBTA, FWS will have legal support for potential enforcement action.
Along with the new rule, FWS issued a Director’s Order aimed at establishing criteria for the types of conduct that will be a priority for enforcement activities with respect to incidental takes. FWS will prioritize enforcement of activities that both foreseeably cause incidental take and fail to implement “beneficial practices” that are meant to limit incidental takes.
FWS also published an advanced notice of proposed rulemaking (“ANPR”), announcing its intention to develop a regulatory scheme to authorize the incidental take of migratory birds. FWS notes that it believes the voluntarily implemented beneficial practices are not sufficient to prevent population decline. Through this rulemaking process, FWS aims to formalize its interpretation of MBTA as prohibiting incidental take and hopes to provide certainty to industry and stakeholders while working to conserve migratory birds. FWS is currently considering authorizing incidental take by three primary mechanisms: 1) exceptions to the MBTA's prohibition on incidental take; 2) general permits for certain activity types, including wind and solar power generation projects; and 3) individual permits for activities deemed to pose the most risk to birds.
For greater detail about the actions taken by FWS regarding the MBTA, please click here.