A Guide to the Migratory Bird Treaty Act Requirements, Process, and Compliance

The Migratory Bird Treaty Act (MBTA) is a crucial federal law that protects over 1,000 native North American bird species from harm. This comprehensive guide provides a deep dive into the MBTA, exploring its history, regulatory scope, compliance requirements, and enforcement mechanisms. Learn about the specific activities and industries regulated under the MBTA, understand the standards and limitations established by the law, and discover the monitoring, reporting, and recordkeeping obligations for regulated entities. The guide also covers the potential penalties for violations, as well as the compliance assistance and incentive programs available to help entities meet the MBTA's requirements. With a focus on the law's recent amendments and proposed changes, this resource equips readers with the knowledge and tools needed to navigate the complexities of the MBTA and ensure compliance with this essential environmental regulation.

GENERAL INFORMATION

Key Details of the Migratory Bird Treaty Act

Issuing Agency: United States Fish and Wildlife Service (USFWS), under the Department of the Interior

Year Established: 1918

Last Amended: 2020

Statutory Authority: Migratory Bird Treaty Act of 1918

Primary Legal Reference: Title 50, Part 10 and Title 50, Part 21 of the Code of Federal Regulations

What is the Migratory Bird Treaty Act?

The Migratory Bird Treaty Act (MBTA) is a federal law that implements the United States' international commitments to protect migratory birds. It operates within the broader framework of international treaties between the U.S. and Canada, Mexico, Japan, and Russia.¹ The MBTA's primary goal is to conserve migratory bird populations by prohibiting the take (including killing, capturing, selling, trading, and transporting) of protected migratory bird species without prior authorization by the Department of Interior's U.S. Fish and Wildlife Service (USFWS).²

The MBTA was first enacted in 1918 to implement the convention between the U.S. and Great Britain for the protection of migratory birds. It was later amended to implement similar treaties with Mexico, Japan, and Russia. The USFWS is responsible for administering and enforcing the MBTA, including issuing permits for otherwise prohibited activities and prosecuting violations.

The MBTA achieves its conservation goals by making it unlawful to pursue, hunt, take, capture, kill, possess, sell, purchase, barter, import, export, or transport any migratory bird, or any part, nest, or egg of such bird, unless authorized under a permit issued by the Secretary of the Interior.³ The MBTA applies to over 1,000 native migratory bird species across the United States and its territories.

What does the Migratory Bird Treaty Act protect?

The Migratory Bird Treaty Act protects over 1,000 native North American bird species from being pursued, hunted, taken, captured, killed, possessed, sold, purchased, bartered, imported, exported, or transported without prior authorization from the USFWS. This protection extends to the birds' parts, nests, and eggs. The MBTA aims to conserve these migratory bird populations by regulating human activities that could harm them directly (e.g., hunting, capturing) or indirectly (e.g., habitat destruction).

REGULATORY SCOPE & JURISDICTION

Regulated Activities, Entities & Prohibited Substances

The Migratory Bird Treaty Act (MBTA) is a federal law that protects migratory birds and their habitats across the United States. The MBTA regulates a wide range of activities and entities that may harm or interfere with migratory birds, their nests, or eggs. Industries and activities that are subject to the MBTA include, but are not limited to:

• Construction and development projects
• Energy production and transmission, including oil and gas, wind, and solar
• Agriculture and forestry practices
• Hunting and poaching
• Pesticide and herbicide application
• Waste management and pollution

Under the MBTA, it is unlawful to engage in the following activities without proper authorization or permits:⁴

1. Pursuing, hunting, taking, capturing, killing, or attempting to do so, any migratory bird, or any part, nest, or egg of any such bird.
2. Selling, offering for sale, bartering, or purchasing any migratory bird, or the parts, nests, or eggs of such a bird.
3. Shipping, transporting, or carrying by any means, any migratory bird, or the parts, nests, or eggs of such a bird.

These prohibitions are in place to protect migratory birds from harm, ensure their populations remain stable, and preserve the ecological balance of their habitats. Migratory birds play crucial roles in ecosystems, acting as pollinators, seed dispersers, and pest controllers. They also serve as indicators of environmental health, and their conservation is essential for maintaining biodiversity.⁵

Relationship to Other Regulations & Agencies

The Migratory Bird Treaty Act works in conjunction with other federal, state, and local regulations to protect migratory birds and their habitats. Some key relationships include:

1. Endangered Species Act (ESA): The ESA provides additional protections for migratory bird species that are listed as endangered or threatened. The U.S. Fish and Wildlife Service (USFWS) is responsible for implementing both the MBTA and the ESA.⁶

2. National Environmental Policy Act (NEPA): Federal agencies must consider the potential impacts of their actions on migratory birds and their habitats during the NEPA review process. This includes assessing the effects of proposed projects and identifying measures to avoid, minimize, or mitigate any adverse impacts.⁷

3. Bald and Golden Eagle Protection Act: This act provides additional protections for bald and golden eagles, which are also covered under the MBTA. The USFWS is responsible for enforcing both laws.⁸

4. State and local regulations: Many states and local governments have their own laws that protect migratory birds and their habitats. These laws often work in concert with the MBTA to provide comprehensive protection for migratory birds.

The primary agency responsible for implementing and enforcing the MBTA is the U.S. Fish and Wildlife Service, which is part of the Department of the Interior. The USFWS works closely with other federal agencies, such as the Environmental Protection Agency (EPA) and the U.S. Army Corps of Engineers, as well as state and local agencies, to ensure compliance with the MBTA and protect migratory bird populations.⁹

COMPLIANCE REQUIREMENTS & STANDARDS

Regulatory Standards & Limitations

The Migratory Bird Treaty Act (MBTA) and its implementing regulations establish various standards and limitations to protect migratory birds and their habitats. These standards include:

1. Prohibition on "take": The MBTA prohibits the "take" of migratory birds, which includes hunting, capturing, killing, or attempting to do so, without a valid permit [200]. This prohibition applies to both intentional and unintentional acts that result in the take of migratory birds [201].

2. Migratory bird hunting regulations: The U.S. Fish and Wildlife Service (USFWS) sets annual hunting regulations for migratory game birds, including bag limits, hunting seasons, and approved hunting methods [202]. These regulations are based on population surveys and other scientific data to ensure sustainable harvest levels.

3. Nest protection: The MBTA prohibits the collection, possession, or sale of migratory bird nests, eggs, and parts without a valid permit [204]. This standard helps protect migratory bird breeding habitats and ensures the survival of future generations.

The USFWS is responsible for enforcing these standards through various means, including inspections, investigations, and partnerships with state and local agencies. Violations of the MBTA can result in civil or criminal penalties, depending on the nature and severity of the offense [206].

Monitoring, Reporting & Recordkeeping Obligations

Under the MBTA, regulated entities have certain monitoring, reporting, and recordkeeping obligations to ensure compliance and transparency. These obligations include:

1. Permit reporting: Entities that hold permits for activities that may result in the take of migratory birds, such as scientific collecting or depredation control, must submit annual reports detailing the number and species of birds taken, the location and purpose of the take, and any other relevant information required by the permit [207].

2. Mortality monitoring: In some cases, entities engaged in activities that may result in the unintentional take of migratory birds, such as wind energy facilities or communication towers, may be required to implement mortality monitoring programs to assess the impact of their operations on migratory bird populations. These monitoring programs typically involve regular searches for dead or injured birds around the facility and the reporting of any casualties to the USFWS.

3. Recordkeeping: Entities that hold permits or engage in activities that may affect migratory birds must maintain accurate records of their actions, including the dates, locations, and methods of any takes, as well as any monitoring or mitigation measures implemented [210]. These records must be retained for a specified period, typically five years, and made available to the USFWS upon request [211].

These monitoring, reporting, and recordkeeping obligations are essential for ensuring compliance with the MBTA and providing the USFWS with the information needed to assess the impact of human activities on migratory bird populations. The data collected through these obligations can also inform the development of future conservation strategies and regulatory decisions.

Enforcement Actions & Penalties

The U.S. Fish and Wildlife Service (USFWS) is responsible for enforcing the Migratory Bird Treaty Act (MBTA) and ensuring compliance with its provisions. The agency employs several methods to monitor and enforce compliance, including:

1. Inspections: The USFWS conducts routine and targeted inspections of facilities and activities that may affect migratory birds, such as oil and gas operations, wind energy facilities, and communication towers [212]. These inspections may be conducted on a regular schedule or in response to complaints or other information suggesting potential violations [213].

2. Audits: The USFWS may also conduct audits of regulated entities' records and reports to verify the accuracy and completeness of the information provided and to identify any discrepancies or potential violations.

During inspections and audits, regulated entities are required to provide access to their facilities, records, and personnel, and to cooperate with USFWS officials. Entities have the right to be present during inspections and to receive copies of any inspection reports or other documents related to the inspection.

Violations of the MBTA can result in a range of enforcement actions and penalties, depending on the nature and severity of the offense. These penalties include:

The severity of the penalty is influenced by factors such as the number of birds affected, the conservation status of the species involved, the intent of the violator, and any history of previous violations [220].

Compliance Assistance & Regulatory Incentives

The U.S. Fish and Wildlife Service (USFWS) and other organizations offer various programs, resources, and incentives to help entities understand and comply with the Migratory Bird Treaty Act (MBTA). These include:

1. Technical assistance: The USFWS provides guidance documents, such as the "Land-Based Wind Energy Guidelines" which offer recommendations for minimizing the impact of these activities on migratory birds. The agency also maintains a website with information on MBTA compliance, including permit requirements, frequently asked questions, and links to relevant regulations [223].

2. Training and workshops: The USFWS and partner organizations, such as the Wildlife Services program of the U.S. Department of Agriculture, offer training and workshops on MBTA compliance and bird-friendly practices for various industries. These events provide opportunities for regulated entities to learn from experts, share experiences, and network with peers.

3. Voluntary partnership programs: The USFWS has established several voluntary partnership programs that encourage entities to adopt practices that benefit migratory birds. For example, the Urban Conservation Treaty for Migratory Birds program works with cities to develop and implement bird-friendly policies and practices, such as creating urban bird habitats and reducing building collisions. Participating cities receive technical assistance, funding, and other resources to support their conservation efforts.

4. Habitat conservation incentives: The USFWS and other agencies offer incentives for private landowners to conserve and restore migratory bird habitats on their property. For example, the Partners for Fish and Wildlife program provides technical and financial assistance to landowners who agree to implement conservation practices, such as wetland restoration or grassland management. Landowners who participate in these programs may be eligible for cost-share funding, tax benefits, or other incentives.

Entities interested in these assistance and incentive programs should visit the USFWS website [227] or contact their regional USFWS office for more information on eligibility, application processes, and potential benefits.

[200] 16 U.S.C. § 703(a) [201] 50 C.F.R. § 10.12 [202] 50 C.F.R. part 20 [204] 16 U.S.C. § 703(a) [206] 16 U.S.C. § 707 [207] 50 C.F.R. § 13.45 [210] 50 C.F.R. § 13.46 [211] U.S. Fish and Wildlife Service. (2002). Migratory Bird Permits; Recordkeeping and Reporting. Federal Register, 67(222), 71494-71496. https://www.federalregister.gov/documents/2002/11/19/02-29200/migratory-bird-permits-recordkeeping-and-reporting [212] U.S. Fish and Wildlife Service. (2021). Office of Law Enforcement. https://www.fws.gov/le/ [213] U.S. Fish and Wildlife Service. (2021). Migratory Bird Permits. https://www.fws.gov/birds/policies-and-regulations/permits.php [217] 16 U.S.C. § 707(a) [218] 16 U.S.C. § 707(b) [219] 16 U.S.C. § 707(b) [220] U.S. Fish and Wildlife Service. (2021). Migratory Bird Treaty Act. https://www.fws.gov/birds/policies-and-regulations/laws-leg [223] U.S. Fish and Wildlife Service. (2021). Migratory Bird Program: Policies and Regulations. https://www.fws.gov/birds/policies-and-regulations.php [227] U.S. Fish and Wildlife Service. (2021). Migratory Bird Program. https://www.fws.gov/birds/

ADDITIONAL RESOURCES

Regulatory History & Upcoming Changes

The Migratory Bird Treaty Act (MBTA) was first enacted in 1918 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada).¹⁰ The Act makes it unlawful to pursue, hunt, take, capture, kill, or sell migratory birds, their parts, nests, or eggs without a permit.¹¹

Key amendments to the MBTA include:

• The 1936 amendment implementing the convention between the U.S. and Mexico.¹²
• The 1960 amendment implementing the convention between the U.S. and Japan.¹³
• The 1978 amendment implementing the convention between the U.S. and the Soviet Union (now Russia).¹⁴

In December 2017, the U.S. Department of the Interior issued a legal opinion stating that the MBTA does not prohibit incidental take of migratory birds. However, in May 2021, the U.S. Fish and Wildlife Service proposed a rule to revoke this interpretation and restore protections for migratory birds.¹⁵ As of April 2023, the proposed rule is still under review.

Regulated entities should stay informed about the status of this proposed rule and any other regulatory changes by:

• Monitoring the Federal Register for updates.
• Engaging with industry associations and environmental organizations that track MBTA developments.
• Consulting with legal counsel or environmental consultants to understand the implications of any changes for their specific projects or operations.

Additional Resources

• Full text of the Migratory Bird Treaty Act: https://www.law.cornell.edu/uscode/text/16/chapter-7/subchapter-II ¹⁶
• U.S. Fish and Wildlife Service MBTA page: ¹⁷