Governing Take of Migratory Birds

The U.S. Fish and Wildlife Service (Service) published a proposed rule to codify the Department of the Interior’s legal opinion  (M-37050) regarding the governing of “take” of birds under the Migratory Bird Treaty Act. This proposed rule clarifies that the scope of the Migratory Bird Treaty Act only reaches to conduct intentionally injuring birds. Conduct that results in the unintentional (incidental) injury or death of migratory birds is not prohibited under the Act.

Concurrently, the Service has determined that a combined Environmental Impact Statement under the National Environmental Policy Act is the most efficient and comprehensive approach for considering the impacts of this proposed rule on the environment. Therefore, we published a Notice of Intent for the Environmental Impact Statement that will commence a public scoping period, and request information and recommendations from the public on the scope of the issues to be included in the Environmental Impact Statement.

The  Proposed Rule and  Notice of Intent for the Environmental Impact Statement published on Monday, February 3, 2020. The Federal eRulemaking Portal can be found at  http://www.regulations.gov. Please follow the instructions for submitting comments to Docket No. FWS-HQ-MB-2018-0090.

The proposed rule will have a 45-day public comment period at the Federal eRulemaking Portal  http://www.regulations.gov, opening on February 3, 2020 and ending on March 19, 2020. We invite the public to provide information on the following topics: (1) the avoidance, minimization, and mitigation measures entities employed to address incidental take of migratory birds; (2) the direct costs associated with implementing these measures; (3) indirect costs entities have incurred related to the legal risk of prosecution for incidental take of migratory birds (e.g., legal fees, increased interest rates on financing, insurance, opportunity costs); (4) the extent that avoidance, minimization, and mitigation measures continue to be used; (5) the sources and scale of incidental bird mortality; and (6) any quantitative information regarding ecosystem services provided by migratory birds. This information will be used to better inform the cost and benefit analysis of this rulemaking.

The Notice of Intent for the Environmental Impact Statement that will commence a 45-day public scoping period, opening on February 3, 2020 and ending on March 19, 2020. We request information and recommendations from the public on the scope of the issues to be included in the Environmental Impact Statement. There will be five online public webinars scheduled for the public to participate in.

 Tuesday March 3 – 3pm ET
 Wednesday March 4 – 3pm ET
 Wednesday March 4 - 5pm ET
 Thursday March 5 – 5pm ET
 Monday March 16 – 3pm ET

Please visit our special website for more information about this process

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Last Updated: February 25, 2020