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

The Migratory Bird Treaty Act (MBTA) Permit is a crucial tool for ensuring the conservation of migratory birds while allowing for responsible development activities. This comprehensive guide delves into the intricacies of the MBTA permit process, providing a clear roadmap for navigating its requirements and achieving compliance. From understanding the regulatory context and permit types to leveraging innovative technology solutions like Transect, readers will gain the knowledge and strategies needed to effectively manage the MBTA permit process and minimize risks to migratory bird populations. With a focus on practical guidance, real-world examples, and best practices, this guide serves as an indispensable resource for streamlining permitting efforts, reducing project delays, and promoting sustainable development in harmony with the natural environment.

GENERAL INFORMATION

MBTA Permit Key Details

Issuing Agency: U.S. Fish and Wildlife Service (USFWS) and the U.S. Department of the Interior Year Established: 1918 Legal References: Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) Last Amended: December 2019 Permit Purpose: Regulates the taking, possession, transportation, sale, purchase, barter, exportation, and importation of migratory birds, their nests, eggs, parts, and products.

Migratory Bird Treaty Act (MBTA) Permit Overview

The Migratory Bird Treaty Act (MBTA) is a federal law that implements treaties and conventions between the United States, Canada, Mexico, Japan, and Russia for the protection of migratory birds.1 The U.S. Fish and Wildlife Service (USFWS), an agency within the Department of the Interior, administers the MBTA permit program. The MBTA was first enacted in 1918 and has been amended several times since then, with the most recent amendment occurring in December 2019.2

The MBTA provides a comprehensive framework for the protection of migratory birds, making it unlawful to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to Federal regulations.3 The MBTA permit program aims to balance the conservation of migratory bird populations with the various activities that may impact these birds, such as scientific research, hunting, and industrial or development projects.

Which Resources Are Regulated By MBTA Permit?

The Migratory Bird Treaty Act (MBTA) protects over 1,000 species of migratory birds, including songbirds, waterfowl, shorebirds, raptors, and many others.4 The MBTA safeguards these birds, their nests, eggs, parts, and products from unauthorized taking, possession, transportation, sale, purchase, barter, exportation, and importation. The permit system established under the MBTA allows for certain activities that would otherwise be prohibited, provided that these activities are carried out in a manner consistent with the conservation purposes of the Act.

PROJECT APPLICABILITY & REQUIREMENTS

When Migratory Bird Treaty Act Permits Are Required

The Migratory Bird Treaty Act (MBTA) prohibits the "take" of migratory birds, their nests, and eggs without prior authorization from the U.S. Fish and Wildlife Service (USFWS).5 "Take" is defined as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect."6 Therefore, any activity that could result in the take of migratory birds, whether intentional or unintentional, requires a permit under the MBTA.

The following table outlines the types of activities that may trigger the need for an MBTA permit and the associated environmental considerations:

Activity/ActionEnvironmental Considerations
Construction projects (e.g., buildings, roads)Potential disturbance or destruction of nesting sites, foraging areas, or other habitats used by migratory birds
Land clearing or vegetation removalDirect impacts on nesting sites and habitat loss for migratory birds
Energy development (e.g., wind, solar, oil/gas)Collisions with wind turbines, power lines, or other infrastructure; habitat fragmentation; disruption of migration routes
Agricultural practices (e.g., pesticide use)Exposure to toxic substances that can harm migratory birds directly or indirectly through the food chain
Coastal development or beach renourishmentDisturbance or destruction of nesting sites for shorebirds, terns, and other coastal species
Bridge or tower maintenance and demolitionPotential impacts on nesting sites for birds such as swallows, swifts, and peregrine falcons that use man-made structures
Forestry practices (e.g., logging, prescribed burns)Alteration of forest habitats used by migratory birds for nesting, foraging, or roosting
Aquaculture or fishing activitiesEntanglement in nets or other gear; disturbance of feeding or resting areas for seabirds and waterfowl

Migratory Bird Treaty Act Permit Exemptions

While the Migratory Bird Treaty Act (MBTA) has broad applicability, certain activities are exempt from the permit requirements. It is important for project proponents to understand these exemptions and determine whether their activities qualify.

The following activities are generally exempt from MBTA permit requirements:7

  1. Hunting: Migratory game birds may be hunted without an MBTA permit if the hunting is conducted in accordance with applicable state and federal regulations, including season dates, bag limits, and other restrictions.

  2. Possession of legally acquired birds: The possession, transport, or sale of migratory birds, their parts, nests, or eggs is allowed without a permit if the birds were legally acquired prior to the enactment of the MBTA in 1918 or through other lawful means (e.g., hunting with appropriate licenses).

  3. Certain agricultural activities: Normal agricultural practices that may result in the incidental take of migratory birds, such as plowing, seeding, or harvesting, are exempt from MBTA permit requirements. However, this exemption does not apply to intentional takes or activities that are not part of normal agricultural operations.

  4. Military readiness activities: Congress amended the MBTA in 2002 to provide a narrow exemption for military readiness activities, such as training exercises and operations, that may incidentally take migratory birds. The U.S. Department of Defense must still comply with certain monitoring and reporting requirements.8

To determine if a project qualifies for an exemption, proponents should carefully review the specific language of the MBTA and its implementing regulations, as well as any relevant guidance or policy documents issued by the U.S. Fish and Wildlife Service (USFWS). In cases where the applicability of an exemption is unclear, it is advisable to consult directly with the USFWS to confirm whether a permit is required.

Even if a project is exempt from MBTA permit requirements, it is still important to implement best management practices and consider potential impacts on migratory birds. Proponents should strive to avoid or minimize take whenever possible and consider voluntary conservation measures to support migrary bird populations.

Types of Migratory Bird Treaty Act Permits

The Migratory Bird Treaty Act (MBTA) provides for several types of permits that may be relevant to developers, environmental consultants, and other stakeholders involved in large-scale greenfield development projects. The following is an overview of the key permit types:

Depredation Permit

The Depredation Permit allows for the take of migratory birds that are causing serious damage to agricultural crops, livestock, or other interests, or posing a risk to human health and safety.9 This permit is relevant for projects where migratory birds may cause significant economic damage or create hazards, such as at airports or agricultural facilities.

Key requirements and considerations:

  • Applicants must demonstrate that non-lethal measures have been attempted and found ineffective.
  • The permit specifies the species, number of birds, and methods of take allowed.
  • Permit holders must submit annual reports detailing the number of birds taken and the effectiveness of the control measures.

Scientific Collecting Permit

The Scientific Collecting Permit authorizes the capture, handling, and collection of migratory birds, their parts, nests, or eggs for scientific research or educational purposes.10 This permit may be necessary for projects that involve surveys, monitoring, or other studies of migratory bird populations and habitats.

Key requirements and considerations:

  • Applicants must provide a detailed research proposal outlining the objectives, methods, and expected benefits of the study.
  • The permit specifies the species, number of specimens, and collection methods allowed.
  • Permit holders must maintain accurate records and submit annual reports summarizing their research activities and findings.

Falconry Permit

The Falconry Permit allows individuals to possess, train, and use raptors (e.g., hawks, falcons) for hunting or other falconry purposes.11 While not directly related to development projects, this permit may be relevant for environmental consultants or biologists who use falconry techniques for bird surveys or research.

Key requirements and considerations:

  • Applicants must demonstrate their experience and proficiency in handling and caring for raptors.
  • The permit specifies the species, number of birds, and facilities requirements for housing and training raptors.
  • Permit holders must follow strict guidelines for the capture, acquisition, and disposal of raptors used in falconry.

Raptor Propagation Permit

The Raptor Propagation Permit authorizes the captive breeding of raptors for conservation, education, or falconry purposes.12 This permit may be relevant for projects that involve the establishment of captive breeding programs to support the recovery of threatened or endangered raptor species.

Key requirements and considerations:

  • Applicants must provide a detailed propagation plan, including the species, number of breeding pairs, and facilities requirements.
  • The permit specifies the recordkeeping and reporting obligations for documenting the breeding, transfer, and disposition of captive-bred raptors.
  • Permit holders must comply with specific requirements for the care, housing, and management of the breeding stock and offspring.

Understanding these permit types and their associated requirements is crucial for ensuring compliance with the MBTA and effectively managing potential impacts on migratory birds throughout the project lifecycle.

PERMIT APPLICATION & PROCESS

Migratory Bird Treaty Act Permit Pre-Application Considerations & Planning

Diagram of Migratory Bird Treaty Act Permit Pre-Application Considerations & Planning
Diagram of Migratory Bird Treaty Act Permit Pre-Application Considerations & Planning

A typical Migratory Bird Treaty Act (MBTA) permit project follows these general phases:

  1. Project Conception: Identify project goals, location, and potential impacts on migratory birds.
  2. Applicability Determination: Assess whether the project requires an MBTA permit based on the proposed activities and their potential effects on migratory birds.
  3. Pre-Application Consultation: Engage with the U.S. Fish and Wildlife Service (USFWS) to discuss the project, identify information needs, and refine the application approach.
  4. Application Preparation & Submission: Compile required forms, documents, and supporting materials, then submit the permit application to the USFWS.
  5. Agency Review & Decision: The USFWS evaluates the application, assesses impacts, and determines whether to approve or deny the permit.
  6. Mitigation Implementation: If approved, the permit holder must implement any required mitigation measures to minimize impacts on migratory birds.
  7. Compliance Monitoring & Reporting: The permit holder must adhere to permit conditions, monitor effectiveness of mitigation, and submit regular compliance reports.
  8. Project Completion: Finalize project activities in accordance with the permit terms and conditions.

The MBTA permit process should be initiated early in the project planning phase to allow sufficient time for pre-application consultation, data gathering, and application preparation. The permit decision may influence project design, construction schedules, and mitigation requirements, so it is critical to integrate the permitting timeline into the overall project lifecycle.

A typical project lifecycle with MBTA permit touchpoints might follow this general timeline:

  • Month 1-3: Project conception, feasibility studies, and initial design
  • Month 3-6: Applicability determination and pre-application consultation with USFWS
  • Month 6-9: Application preparation and submission
  • Month 9-12: USFWS review and permit decision
  • Month 12-18: Mitigation implementation and compliance monitoring
  • Month 18-24: Project construction and completion

Migratory Bird Treaty Act Application Requirements & Submission

A complete Migratory Bird Treaty Act permit application typically includes the following components:

  1. Application Form: Fill out the appropriate USFWS permit application form (e.g., Form 3-200-81).
  2. Project Description: Provide a detailed narrative describing the proposed activities, including the purpose, location, duration, and methods.
  3. Species Information: Identify the migratory bird species likely to be affected, including their conservation status, distribution, and habitat requirements.
  4. Impact Assessment: Evaluate the potential direct, indirect, and cumulative impacts of the proposed activities on migratory birds and their habitats.
  5. Mitigation Plan: Describe measures to avoid, minimize, or mitigate adverse effects on migratory birds, such as timing restrictions, buffer zones, or habitat restoration.
  6. Monitoring & Reporting Plan: Outline procedures for monitoring the effectiveness of mitigation measures and reporting compliance to the USFWS.
  7. Qualifications: Demonstrate that the applicant and key personnel have the necessary expertise, experience, and resources to carry out the proposed activities.

The Migratory Bird Treaty Act Review & Decision Process

Ideally, the Migratory Bird Treaty Act permitting process should be initiated during the early stages of project planning, such as the feasibility analysis or conceptual design phase. This allows ample time for pre-application consultation with the U.S. Fish and Wildlife Service (USFWS), data collection, impact assessment, and mitigation planning before submitting the permit application.

The typical steps in the MBTA permit review and decision process are:

  1. Pre-Application Consultation: The applicant meets with the USFWS to discuss the proposed project, identify potential impacts on migratory birds, and determine the appropriate permit type and application requirements.
  2. Application Submission: The applicant prepares and submits a complete permit application package to the USFWS, including all required forms, supporting documents, and fees.
  3. Completeness Review: The USFWS reviews the application for completeness and may request additional information if necessary. The formal review process begins once the application is deemed complete.
  4. Technical Review: USFWS biologists evaluate the application to assess the project's potential impacts on migratory birds, the effectiveness of proposed mitigation measures, and the applicant's qualifications and ability to comply with permit conditions.
  5. Endangered Species Act Consultation: If the project may affect endangered or threatened species, the USFWS initiates consultation under Section 7 of the Endangered Species Act.
  6. National Environmental Policy Act (NEPA) Review: The USFWS determines the appropriate level of environmental review under NEPA, which may range from a categorical exclusion to an environmental impact statement.
  7. Permit Decision: Based on the technical review, ESA consultation, and NEPA analysis, the USFWS decides whether to approve or deny the permit application. If approved, the permit will specify the authorized activities, duration, conditions, and reporting requirements.

The USFWS aims to process MBTA permit applications within 60-90 days of receiving a complete application, but complex projects or those requiring ESA consultation or NEPA review may take longer. The key approval criteria include:

  • The proposed activities are consistent with the conservation purposes of the MBTA and other applicable laws and regulations.
  • The applicant has demonstrated a compelling justification for the take of migratory birds and considered alternatives to avoid or minimize impacts.
  • The proposed mitigation measures are likely to be effective in reducing adverse effects on migratory birds and their habitats.
  • The applicant is qualified and equipped to carry out the permitted activities and comply with permit conditions.

Migratory Bird Treaty Act Public Participation & Stakeholder Engagement

Public participation is an important component of the Migratory Bird Treaty Act (MBTA) permitting process, as it allows interested parties to provide input on proposed projects and ensures that the U.S. Fish and Wildlife Service (USFWS) considers a range of perspectives in its decision-making.

The primary opportunity for public involvement occurs during the National Environmental Policy Act (NEPA) review process. Depending on the level of environmental review required, the USFWS may solicit public comments at various stages:

  • Scoping: For projects requiring an Environmental Assessment (EA) or Environmental Impact Statement (EIS), the USFWS may conduct public scoping meetings or request written comments to help identify key issues, alternatives, and data needs.
  • Draft EA/EIS Comment Period: The USFWS publishes a notice of availability for the draft EA or EIS in the Federal Register and local media, initiating a 30-60 day public comment period. During this time, individuals and organizations may submit written comments on the analysis and proposed action.
  • Public Hearings: For high-profile or controversial projects, the USFWS may hold public hearings to provide an additional forum for oral comments and testimony.
  • Final EA/EIS Review: The USFWS considers all substantive comments received during the draft review period and prepares a final EA or EIS, which includes responses to comments and any necessary revisions to the analysis or proposed action.

In addition to the formal NEPA process, stakeholders may engage with the USFWS and project proponents through informal consultations, workshops, or other outreach efforts to share information, concerns, and recommendations related to migratory bird conservation.

Public participation in the MBTA permitting process serves several important functions:

  1. Identifying Impacts: Local communities and bird conservation organizations may have valuable knowledge about migratory bird populations, habitats, and potential project impacts that can inform the USFWS's analysis and decision-making.
  2. Developing Mitigation Strategies: Stakeholder input can help shape effective and feasible mitigation measures to avoid, minimize, or compensate for adverse effects on migratory birds.
  3. Building Trust and Support: Meaningful public engagement promotes transparency, accountability, and understanding among project proponents, regulatory agencies, and affected communities.
  4. Ensuring Legal Compliance: Robust public participation helps the USFWS fulfill its obligations under NEPA, the Administrative Procedure Act, and other applicable laws and regulations.

Common Challenges and Pitfalls in the Migratory Bird Treaty Act Permit Process

Project proponents may encounter several common challenges and pitfalls during the Migratory Bird Treaty Act (MBTA) permitting process:

  1. Incomplete or Inadequate Application Materials: Submitting an incomplete permit application or failing to provide sufficient information about the proposed activities, impacts, and mitigation measures can delay the review process and increase the risk of denial.

    • Best Practice: Engage in pre-application consultation with the U.S. Fish and Wildlife Service (USFWS) to clarify permit requirements and ensure that the application package is thorough and well-documented.
  2. Underestimating Impacts on Migratory Birds: Failing to properly identify and assess the potential direct, indirect, and cumulative effects of the project on migratory birds and their habitats can undermine the permit application and mitigation plan.

    • Best Practice: Conduct comprehensive baseline surveys and impact analyses using accepted methodologies, and consult with bird conservation experts to ensure that all relevant species and impacts are considered.
  3. Inadequate or Infeasible Mitigation Measures: Proposing mitigation strategies that are untested, impractical, or inconsistent with the project's impacts and conservation goals can weaken the permit application and lead to additional requirements or denial.

    • Best Practice: Develop a robust mitigation plan that prioritizes avoidance and minimization, incorporates scientifically sound and proven strategies, and provides a clear rationale for the proposed measures.
  4. Lack of Stakeholder Engagement: Failing to involve key stakeholders, such as local communities, bird conservation organizations, and other affected parties, in the permitting process can lead to opposition, legal challenges, and project delays.

    • Best Practice: Initiate early and ongoing communication with stakeholders to understand their concerns, seek input on project design and mitigation, and build support for the permit application.
  5. Noncompliance with Permit Conditions: Once a permit is issued, failing to adhere to the specified terms and conditions, such as implementing required mitigation measures or submitting monitoring reports, can result in enforcement actions and jeopardize future permit approvals.

    • Best Practice: Establish clear roles and responsibilities for permit compliance, train project personnel on permit requirements, and maintain accurate records of mitigation implementation and monitoring results.

Case Study: In 2013, the U.S. Department of Justice prosecuted a wind energy company for violations of the MBTA after the company failed to obtain the necessary permits and implement sufficient mitigation measures to prevent bird collisions with wind turbines. The company pleaded guilty and was ordered to pay $1 million in fines, implement a comprehensive compliance plan, and conduct additional bird mortality monitoring. This case highlights the importance of proactive permitting, effective mitigation, and strict compliance with MBTA permit conditions.

By learning from these common challenges and adopting best practices for permit application, impact assessment, mitigation planning, stakeholder engagement, and compliance, project proponents can navigate the MBTA permitting process more successfully and contribute to the conservation of migratory bird populations.

TECHNOLOGY SOLUTIONS FOR PERMIT COMPLIANCE

Leveraging Technology for Migratory Bird Treaty Act Permit Compliance

In today's fast-paced development landscape, technology plays a crucial role in streamlining and enhancing the Migratory Bird Treaty Act (MBTA) permit compliance process. By leveraging advanced data management, site assessment, and monitoring tools, developers and environmental consultants can significantly improve efficiency, accuracy, and transparency in meeting the requirements of the MBTA permit.

Benefits of using technology for MBTA permit compliance include:

  1. Centralized data management: Cloud-based platforms allow for easy storage, organization, and retrieval of project data, ensuring that all relevant information is readily accessible to stakeholders.

  2. Improved site assessment: Geographic Information Systems (GIS) and remote sensing technologies enable detailed analysis of project sites, helping to identify potential impacts on migratory birds and their habitats.

  3. Enhanced monitoring: Automated monitoring systems, such as acoustic sensors and camera traps, can provide real-time data on bird activity, facilitating early detection of potential issues and prompt mitigation measures.

  4. Increased collaboration: Online collaboration tools foster effective communication and coordination among project teams, regulatory agencies, and other stakeholders, streamlining the permit compliance process.

  5. Better decision-making: Data analytics and visualization tools help transform raw data into actionable insights, enabling informed decision-making and proactive management of MBTA compliance risks.

Common tools and platforms used in the industry for MBTA permit compliance include:

Tool/PlatformDescriptionBenefits
ArcGISGIS software for mapping and spatial analysisEnables detailed site assessment and impact analysis
eBirdOnline database of bird observationsProvides valuable data on bird distribution and activity
KaleidoscopeAcoustic analysis software for bird surveysAutomates processing of large volumes of audio data
Microsoft 365Cloud-based productivity and collaboration suiteFacilitates data management, communication, and teamwork
Power BIData visualization and analytics platformHelps create interactive dashboards and reports for insights

By embracing these technological solutions, developers and consultants can navigate the complexities of MBTA permit compliance with greater ease, confidence, and effectiveness.

Transect: An Innovative Solution for Site Selection & Environmental Due Diligence

Transect is a groundbreaking all-in-one environmental due diligence solution that combines cutting-edge software knowledge with extensive hands-on field experience to revolutionize site selection and permitting for industries such as solar, wind, renewable energy, and more. This innovative platform offers a range of powerful features and benefits that set it apart from traditional methods:

  1. Swift site pinpointing and suitability analysis: Transect enables rapid identification of potential project sites and comprehensive evaluation of their suitability based on environmental, regulatory, and technical criteria.

  2. Real-time data updates and critical issues identification: The platform provides up-to-date information on key environmental factors, such as migratory bird habitats, allowing users to quickly identify and address critical issues that may impact project feasibility and MBTA permit compliance.

  3. Versatility across multiple industries and project types: Transect is designed to support a wide range of industries and project types, from renewable energy to infrastructure development, making it a valuable tool for diverse stakeholders.

  4. User-friendly interface and intuitive workflow: The platform offers a seamless and intuitive user experience, enabling users to easily navigate complex environmental data and processes, regardless of their technical background.

  5. Efficiency gains and cost savings: By streamlining site selection and permitting processes, Transect helps developers and consultants save time and reduce costs compared to traditional methods, allowing for more efficient allocation of resources.

  6. Proactive risk mitigation and compliance assurance: Transect's advanced analytics and reporting capabilities enable users to proactively identify and mitigate potential risks, ensuring ongoing compliance with MBTA permit requirements and minimizing the likelihood of project delays or penalties.

By leveraging Transect's unique capabilities, developers and permit applicants can streamline their site selection and permitting processes, reduce costs and delays, and ensure ongoing compliance with MBTA permit requirements. This innovative solution empowers users to make informed decisions, minimize environmental impacts, and achieve their project goals with greater efficiency and confidence.

POST-PERMIT COMPLIANCE & MANAGEMENT

MBTA Permit Permit Conditions & Compliance Obligations

A Migratory Bird Treaty Act (MBTA) permit typically comes with a set of conditions and requirements that the permittee must adhere to in order to maintain compliance. These conditions are designed to minimize impacts on migratory birds, their nests, and their habitats, and to ensure that any authorized take is properly mitigated.

Common permit conditions may include13:

  • Implementing specific impact minimization measures, such as avoiding construction activities during breeding seasons, using bird-friendly lighting and glass, or installing perch deterrents on power lines.
  • Conducting pre-construction surveys to identify active nests and implement appropriate buffer zones around them until the young have fledged.
  • Developing and implementing a Migratory Bird Conservation Plan that outlines the steps the permittee will take to avoid, minimize, and mitigate impacts on migratory birds throughout the project lifecycle.
  • Committing to compensatory mitigation, such as habitat restoration or preservation, to offset any unavoidable impacts on migratory birds or their habitats.
  • Regularly reporting on the implementation and effectiveness of permit conditions, including the results of monitoring efforts and any adaptive management actions taken.

It is crucial for permittees to thoroughly understand and strictly adhere to all permit conditions to maintain compliance with the MBTA and avoid potential enforcement actions. Failure to comply with permit conditions can result in penalties, fines, or even permit revocation14.

MBTA Permit Monitoring, Reporting & Recordkeeping Requirements

MBTA permits typically come with ongoing monitoring, reporting, and recordkeeping requirements to ensure that the permittee is complying with all permit conditions and that any authorized take is properly documented and mitigated.

Monitoring requirements may include conducting regular surveys to assess the presence and status of migratory birds and their nests in the project area, as well as tracking the effectiveness of impact minimization and mitigation measures. The frequency and methods of monitoring will be specified in the permit conditions15.

Reporting requirements usually involve submitting annual or semi-annual reports to the U.S. Fish and Wildlife Service (USFWS) that detail the results of monitoring efforts, any take that occurred, and the implementation status of permit conditions. Reports may also need to include information on adaptive management actions taken in response to monitoring results or changed circumstances16.

Recordkeeping is essential for demonstrating compliance with permit conditions and supporting the information provided in reports. Permittees must maintain accurate and complete records of all activities related to the permit, including monitoring data, take documentation, and mitigation implementation. These records must be retained for a specified period, typically at least five years after the permit expires17.

Failure to comply with monitoring, reporting, or recordkeeping requirements can result in permit violations and potential enforcement actions. It is crucial for permittees to establish robust data management and reporting systems to ensure timely and accurate compliance with these obligations18.

Enforcement and Penalties for Non-Compliance with MBTA Permit

Non-compliance with MBTA permit conditions can result in various enforcement actions and penalties, depending on the severity and nature of the violation. The USFWS is responsible for enforcing the MBTA and may take the following actions against non-compliant permittees19:

  1. Administrative penalties: The USFWS may issue a notice of violation or a cease and desist order requiring the permittee to stop any activities causing the violation and to take corrective actions to come back into compliance.

  2. Civil penalties: The MBTA authorizes civil penalties of up to $15,000 per violation, with each day of violation constituting a separate offense. In some cases, the USFWS may also assess the costs of any required remediation or mitigation20.

  3. Criminal charges: Knowingly violating the MBTA or permit conditions can result in criminal charges, which may lead to fines of up to $250,000 for individuals and $500,000 for organizations, as well as imprisonment for up to two years21.

  4. Permit revocation or suspension: In cases of severe or repeated non-compliance, the USFWS may revoke or suspend the MBTA permit, prohibiting the permittee from conducting any activities that impact migratory birds until the permit is reinstated or a new permit is obtained22.

Common violations that may trigger enforcement actions include exceeding authorized take limits, failing to implement required minimization or mitigation measures, not conducting required monitoring or reporting, or providing false information in permit applications or reports.

To mitigate enforcement risks, permittees should promptly report any potential violations and take immediate corrective actions to address the non-compliance. Proactive communication and cooperation with the agency can help demonstrate good faith and may result in more lenient enforcement responses23.

ADDITIONAL RESOURCES & UPDATES

Recent Changes & Updates to Migratory Bird Treaty Act Permit

In recent years, there have been significant changes to the interpretation and implementation of the Migratory Bird Treaty Act (MBTA) that have affected the scope and requirements of the associated permit. Some of the notable changes include:

  1. December 22, 2017: The U.S. Department of the Interior (DOI) issued a legal opinion (M-37050) stating that the MBTA's prohibition on the "taking" or "killing" of migratory birds applies only to "direct and affirmative purposeful actions" and does not include incidental take.

  2. January 7, 2021: The U.S. Fish and Wildlife Service (USFWS) published a final rule codifying the 2017 legal opinion, which went into effect on February 8, 2021. This rule limited the scope of the MBTA to actions that purposefully take migratory birds, their nests, or their eggs.24

  3. May 7, 2021: The USFWS published a proposed rule to revoke the January 7, 2021 final rule, citing concerns about the rule's impact on migratory bird populations and the need to address incidental take.25

  4. October 4, 2021: The USFWS revoked the January 7, 2021 final rule, effectively restoring the agency's prior interpretation of the MBTA as prohibiting incidental take. This change went into effect on December 3, 2021.26

These changes have significant implications for projects that may result in the incidental take of migratory birds, as the USFWS has returned to its prior practice of enforcing the MBTA's prohibition on incidental take. Developers should be aware of these regulatory shifts and ensure that their projects comply with the current interpretation of the MBTA and its associated permit requirements.

Additional Resources & Information

Below are some additional official resources that provide further guidance and information on the Migratory Bird Treaty Act Permit:

  1. Migratory Bird Treaty Act: This USFWS web page offers an overview of the MBTA, including its history, purpose, and key provisions. It also provides links to relevant regulations and guidance documents.27

  2. Migratory Bird Permits: Authorized Activities Involving Migratory Birds: This section of the Code of Federal Regulations (C.F.R.) outlines the specific activities that are authorized under various types of migratory bird permits, including the MBTA permit.28

These resources can provide valuable supplementary information and guidance for developers seeking to understand and comply with the requirements of the Migratory Bird Treaty Act Permit.

REFERENCES

  1. 16 U.S.C. §§ 703-712.

  2. U.S. Fish and Wildlife Service. "Migratory Bird Treaty Act." https://www.fws.gov/law/migratory-bird-treaty-act-1918

  3. 16 U.S.C. § 703(a).

  4. U.S. Fish and Wildlife Service. "Migratory Bird Program." https://www.fws.gov/program/migratory-birds

  5. 16 U.S.C. § 703(a)

  6. 50 C.F.R. § 10.12

  7. 16 U.S.C. § 703(a); 50 C.F.R. § 21.2

  8. 16 U.S.C. § 703 note; 50 C.F.R. § 21.15

  9. 50 C.F.R. § 21.41

  10. 50 C.F.R. § 21.23

  11. 50 C.F.R. § 21.29

  12. 50 C.F.R. § 21.30

  13. U.S. Fish and Wildlife Service. (2020). Migratory Bird Treaty Act Protected Species (10.13 List) https://www.fws.gov/birds/management/managed-species/migratory-bird-treaty-act-protected-species.php

  14. 16 U.S.C. § 707

  15. 50 C.F.R. § 21.27(b)(2)

  16. 50 C.F.R. § 21.27(d)

  17. 50 C.F.R. § 13.46

  18. U.S. Fish and Wildlife Service. (2020). Migratory Bird Permits; Regulations Governing Take of Migratory Birds https://www.federalregister.gov/documents/2020/01/07/2019-27580/migratory-bird-permits-regulations-governing-take-of-migratory-birds

  19. U.S. Fish and Wildlife Service. (2020). Migratory Bird Permits; Enforcement.

  20. 16 U.S.C. § 707(a)

  21. 16 U.S.C. § 707(b)

  22. 50 C.F.R. § 13.27-28

  23. 50 C.F.R. § 13.29

  24. U.S. Fish and Wildlife Service, "Regulations Governing Take of Migratory Birds," Final Rule, 86 FR 1134, January 7, 2021, https://www.federalregister.gov/documents/2021/01/07/2021-00054/regulations-governing-take-of-migratory-birds

  25. U.S. Fish and Wildlife Service, "Regulations Governing Take of Migratory Birds; Proposed Rule," 86 FR 24573, May 7, 2021, https://www.federalregister.gov/documents/2021/05/07/2021-09700/regulations-governing-take-of-migratory-birds-proposed-rule

  26. U.S. Fish and Wildlife Service, "Regulations Governing Take of Migratory Birds; Revocation of Provisions," Final Rule, 86 FR 54642, October 4, 2021, https://www.federalregister.gov/documents/2021/10/04/2021-21473/regulations-governing-take-of-migratory-birds-revocation-of-provisions

  27. U.S. Fish and Wildlife Service, "Migratory Bird Treaty Act," https://www.fws.gov/birds/policies-and-regulations/laws-legislations/migratory-bird-treaty-act.php

  28. "Migratory Bird Permits," Code of Federal Regulations, Title 50, Chapter I, Subchapter B, Part 21, https://www.ecfr.gov/current/title-50/chapter-I/subchapter-B/part-21

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A Note to Our Readers: We hope this guide is a valuable resource in helping you better understand the MBTA Permit. However, it's not a substitute for professional advice and doesn't cover every scenario. Always consult with regulatory bodies and professionals for the most current advice and project-specific guidance.