New USFWS Authorizations Seek to Simplify Federal MBTA Permitting

A programmatic environmental impact statement (PEIS) by the U.S. Fish and Wildlife Service (USFWS) would modify enforcement of the Migratory Bird Treaty Act (MBTA), which protects 1,027 bird species.

The PEIS will authorize incidental take of migratory birds, and will also address:

  • a range of reasonable alternatives for authorizing incidental take;
  • the effectiveness of measures used to mitigate take of protected birds and reduce adverse impacts to migratory bird resources;
  • the effects that bird protection measures have on non-bird resources (e.g., cultural or wetlands);
  • sources of mortality other than incidental take on migratory bird populations; and
  • factors that impact migratory bird habitat, including climate change.

Public Input Underway

The USFWS published a Notice of Intent in the Federal Register on May 26, 2015, and held four public scoping meetings in June and July. Input was gathered through July on a variety of issues including types of hazards specific to certain industries; approaches to mitigate impacts to birds; best management practices (BMPs); compensatory mitigation; and how best to integrate existing guidance and plans, such as Avian Protection Plans, into the proposed PEIS framework. The effort is currently in the pre-rule period, which will be followed by proposed rule and comment periods.

Brock Ortega, a Dudek principal and senior wildlife biologist attended the Sacramento scoping meeting, and said that the initial USFWS plan outlines that the PEIS should accomplish the following:

  • provide a programmatic general authorization for incidental take;
  • create a framework by which individual permits could be issued; and
  • establish a general authorization of incidental take due to hazards associated with certain industries.

General Authorizations Streamline Permitting

With an understanding of the circumstances in which birds most often die and the various BMPs available for reducing or eliminating bird take in specific sectors, the USFWS aims to potentially provide general authorizations for the following incidental take circumstances:

  • Collisions with communication towers
  • Collisions with and electrocution by electrical transmission/distribution structures
  • Entrapment in and burning by methane or other gas burners at oil production facilities and landfills
  • Entrapment in oil, gas, and wastewater disposal pits

Development of general authorizations for other sectors would come in the future if interest is demonstrated by the individual sector.

To expedite the permitting process, the USFWS may implement “e-permitting” or self-permitting, which would require only periodic monitoring by law enforcement, but would incur steep penalties if the system were taken advantage of. The USFWS reports that if general permit measures are adhered to, then, depending on their confidence in the BMPs and other measures, formal monitoring and reporting may not be needed.

Successful implementation of general authorizations for incidental take of MBTA-protected birds in specific circumstances will both streamline permitting and regulatory procedures, as well as reduce injury to migratory bird species as human-caused sources of bird mortality will be thoroughly explored throughout the preparation of the programmatic PEIS.

UPDATE: In May 2018, USFWS announced that it was no longer pursuing preparation of this PEIS.


Brock Ortega, Dudek Principal and Senior Wildlife Biologist, has more than 23 years’ experience as a wildlife biologist specializing in management, mitigation monitoring, and permitting issues related to threatened or endangered species, and environmental impact assessment and mitigation. For more information, contact him at or 760.479.4254.