Fish and Wildlife Service considers permitting for unintentional bird kills 

The Fish and Wildlife Service is considering establishing a permitting system that would allow the legal, unintentional killing of the more than 1,000 bird species protected under the Migratory Bird Treaty Act, a move that could offer legal certainty under a law fraught with ambiguity.

Details of the plan are scant, but the effort is being closely watched by electric utilities, renewable energy developers and environmental groups, all of which have much at stake under the 1918 law.

Fish and Wildlife plans to issue a “notice of intent” to prepare an environmental impact statement for permitting the incidental “take” of migratory birds. The service Tuesday formally notified the White House Office of Management and Budget of its proposed move.

It is unclear when OMB will sign off on the plan and when the FWS notice will become public.

Fish and Wildlife said it wants to create legal assurances for companies that face liabilities under the migratory bird law. The statute makes it a crime to kill any of the more than 1,000 protected migratory birds, even if it is an accident, according to the 10th U.S. Circuit Court of Appeals.

FWS also wants tools to prosecute companies that fail to avoid or minimize harm to migratory birds.

The agency has said little about what sectors – power lines, communication towers or wind farms, for example – would be covered by such a permitting regime. Nor has it said how long such permits would last, how many species they would cover and whether they would apply to individual projects or be issued on a programmatic scale.

But the notice of intent will ask for public input and will include public meetings across the county, FWS said. A rulemaking, if one is proposed, could be many months away.

The effort follows Fish and Wildlife’s controversial move in late 2013 to allow wind farms and other industrial developments to apply for 30-year incidental take permits for eagles, which are protected under the Bald and Golden Eagle Protection Act. While welcomed by the wind industry, the eagle take rule is being challenged in federal court by the American Bird Conservancy, which claims it lacks safeguards for eagle populations. Other environmental groups have reserved judgment.

Environmentalists are cautiously supportive of incidental take permits for migratory birds.

“American Bird Conservancy applauds the USFWS for instituting a planning effort that could eventually result in an incidental take permit under the Migratory Bird Treaty Act,” said Michael Hutchins, who leads ABC’s wind energy campaign. “Enforcement of the MBTA is currently inconsistent at best, and this needs to change. Many of our ecologically important migratory bird species – even the most common – are in precipitous decline and require additional protections.”

ABC in late 2011 petitioned Fish and Wildlife to establish a permitting regime for migratory birds for wind farms, but it was denied.

Brian Rutledge, vice president and policy adviser for Audubon Rockies, said a national discussion over permitting for migratory bird deaths is long overdue.

“We need to realize these are birds that do everything from pollinating plants to eating vast numbers of nuisance insects,” he said. “It’s really time for a review.”

According to multiple sources, FWS Director Dan Ashe announced plans to develop incidental take permits for migratory birds in a keynote speech last June before the Avian Power Line Interaction Committee (APLIC), a coalition of electric utilities and FWS that develops guidance for minimizing avian electrocutions and collisions with power lines.

Utilities believe a permitting regime holds promise, particularly if it offers companies the ability to obtain programmatic permits covering their entire system.

APLIC and Fish and Wildlife in 2005 released national Avian Protection Plan guidelines, which, if followed, provide companies some protection from MBTA prosecution. Incidental take permits could offer an added layer of protection.

“We’re very interested in seeing what the service comes out with,” said Rick Loughery, who manages APLIC for the Edison Electric Institute.

The wind industry is reserving judgment on the FWS permitting plan but will try to meet with OMB to learn more details, an industry official said.

‘Fuzzy’ liability

Fish and Wildlife already permits hunting of migratory birds as long as harvest levels allow bird populations to sustain themselves. It also permits the killing of certain migratory species that prey on other wildlife, including blackbirds, cowbirds, grackles, crows and magpies.

But permits for industrial developments to unintentionally take migratory birds are new territory.

MBTA was passed primarily to stop the “indiscriminate slaughter” of migratory birds by market hunters and others, according to FWS.

But whether it bars the accidental taking of birds by otherwise legal oil and gas production facilities, wind turbines and telecommunications towers, logging operations, and airports varies by federal circuit court, according to a March 2014 legal review by attorneys for Crowell & Moring.

“The legal uncertainty is compounded by the lack of a clear regulatory mechanism to permit incidental take,” the review said. “One potential solution is to utilize FWS’s authority … to issue regulations and permits that would render lawful certain arguable MBTA ‘takes.'”

The analysis said many companies are wary of the “fuzzy potential MBTA liability” and prefer not to rely on FWS’s “prosecutorial discretion” for otherwise lawful activities.

The courts of appeal for the 8th and 9th U.S. circuits have found MBTA applies only to actions directed against migratory birds like hunting – not accidental take from commercial activities like wind projects, said Svend Brandt-Erichsen of Marten Law.

Under those courts’ rulings, a permitting regime for MBTS would be unnecessary. The 10th Circuit, in contrast, has upheld criminal liability for incidental take.

A bill introduced last month by House Republicans would exempt energy companies and others who unintentionally kill or harm migratory birds from criminal penalties under MBTA (E&ENews PM, Jan. 23).

Regardless, wind firms will be closely watching FWS’s efforts, particularly in light of the Justice Department’s decision in recent years to prosecute two utilities for MBTA violations committed by wind farms in Wyoming.