How Changes to the MBTA May Affect Your Project

USFWS Reinterprets MBTA

Section 2 of the Migratory Bird Treaty Act (MBTA) makes it unlawful to “take” (hunt, pursue, capture, injure, kill, or attempt to do so) a wide variety of migratory birds, except as permitted by regulations (16 U.S.C. § 703). The U.S. Fish and Wildlife Service (USFWS) has consistently interpreted Section 2 as prohibiting incidental take (defined as take that is incidental to, but not the intended purpose of, an otherwise lawful activity) of migratory birds.

However, in December 2017, the Department of the Interior (DOI) issued a memorandum reversing this incidental take interpretation of the MBTA. Specifically, this memorandum concluded that “consistent with the text, history, and purpose of the MBTA”, the statute’s prohibitions on take apply “only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests, or their eggs [emphasis added].”

Read more on Dudek’s blog.