There are two pending updates in relation to the federal Migratory Bird Treaty Act (MBTA) and regulation of incidental take (unintentional capture or killing) of birds protected under the MBTA. Although these potential revisions may be contributing to uncertainty about protections elsewhere in the United States, California’s codes protecting native bird nests result in no substantive change for most projects within the state. A short summary on the recent updates follows, and note that it may be helpful to read our previous blog on the MBTA for more background.
MBTA PROPOSED RULE
On February 3, 2020, the United States Fish and Wildlife Service (USFWS) published a proposed rule regarding the interpretation of the MBTA. This proposed rule would clarify that the MBTA prohibitions on migratory birds, nests, and their eggs do not extend to incidental take or unintentional killing. This regulation reflects the Trump administration’s guidance (2017 Solicitor’s Opinion); however, codifying this in the regulations, makes it harder for the next administration to reverse or overturn this guidance. The additional language proposed to be added to the MBTA reads:
The prohibitions of the Migratory Bird Treaty Act (16 U.S.C. 703) that make it unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, or kill migratory birds, or attempt to engage in any of those actions, apply only to actions directed at migratory birds, their nests, or their eggs. Injury to or mortality of migratory birds that results from, but is not the purpose of, an action (i.e., incidental taking or killing) is not prohibited by the Migratory Bird Treaty Act.
This additional language is considered a significant revision and triggered a review under the National Environmental Policy Act (NEPA). The notice of preparation of an Environmental Impact Statement (EIS) was released on the same day, February 3, 2020, with the request for input on the scope of analysis to be included in the EIS. Comments on both the proposed rule and the scope of the EIS are open until March 19. The NEPA process must be completed before the proposed rule can be finalized.
MIGRATORY BIRD PROTECTION ACT
The House of Representatives Natural Resources Committee passed the Migratory Bird Protection Act (H.R. 5552) in mid-January, and it will move up to the full House for a vote potentially this year. This act would amend the MBTA to specifically prohibit incidental take or unintentional killing of migratory birds, and require the USFWS to regulate or permit incidental take of migratory birds. The act also defines which types of activities are subject to this prohibition. If passed by the House and Senate, the MBTA would be amended and supersede the February 3 proposed rule, if finalized.
CALIFORNIA LAWS AND RECOMMENDATIONS
The California Fish and Game Code (CFGC) provides protections to native bird nests (most specifically codes 3503, 3503.5, and 3513). Similar to the MBTA, there has been ambiguity on the applicability of these restrictions to incidental actions; however, California has counseled on multiple occasions that the prohibition on incidental take applies to all sections of CFGC including to nest protections. Per CFGC section 3503, it is unlawful to “take, possess, or needlessly destroy the nest or eggs of any bird.”
WRA’s recommendations remain unchanged from previous years, and we remind project proponents of the following:
- All existing permit measures, California Environmental Quality Act (CEQA) Mitigation Measures, and other requirements for various actions that stipulate nesting bird avoidance are not rendered invalid by the proposed rule, if such are finalized. Compliance is still expected.
- Measures protecting nesting birds/active nests remain common in California. For example, permits and authorizations from the California Department of Fish and Wildlife (CDFW) such as Streambed Alteration Agreements and Incidental Take Permits do not rely on the MBTA for the basis of bird protection, and will likely continue to include such measures.
- The most effective method of avoiding impacts to nesting birds (or even simply the perception that birds have been impacted) is to perform the removal of trees and other vegetation from September 1 through January 31. This period is outside of the greater nesting bird season as typically defined by CDFW. If such is not feasible, pre-construction surveys by a qualified biologist and subsequent avoidance of any active nests found are strongly recommended, particularly for larger-scale actions with an associated higher likelihood of impact.