The Migratory Bird Treaty Act: Permitting and Perspectives

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About

The Migratory Bird Treaty Act was enacted in 1918, passed to implement a 1916 convention with Great Britain, as the governing body of Canada. Codified at 16 USC §§ 703 – 712, the law prohibits the take of most migratory bird species that occur in the U.S. Take is defined by regulation to mean “pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” Since passage, the law has also been used to implement subsequent conventions with Mexico, Japan, and Russia. At the time of passage, the law was intended to protect migratory birds from overharvesting and the commercial wildlife market. However, a chilling study released in 2019 indicated a projected net loss of 3 billion birds in North America—approximately 29% of the 1970 abundance—suggests additional conservation is needed (Rosenberg et al. 2019).

There has been long-standing debate on whether the law protects migratory birds from incidental take. For decades, the United States Fish and Wildlife Service used prosecutorial discretion to enforce the law in its application to incidental take. However in 2015, the 5^th Circuit Court of Appeals in U.S. v Citgo Petroleum held that the MBTA only applied to the direct take of birds. In January of 2017, prior to the end of the Obama Administration, the Department of the Interior issued a memorandum reaffirming their position that the MBTA prohibited incidental take. Later that year, the Trump Administration’s Department of the Interior issued a subsequent memorandum reversing the previous administration’s interpretation and stating that the MBTA only applied to direct take. In 2020, this memo and interpretation of the law was challenged in the Southern District of New York in Natural Resources Defense Council Inc., v. United States Department of the Interior. The court rejected the interpretation and rationale of the second memorandum. However, the Trump Administration then proposed and finalized regulations in January 2021 codifying that the MBTA did not apply to incidental take. Under the new Biden Administration, the USFWS revoked the January rule on October 4, 2021 and initiated a process to codify their interpretation that the MBTA prohibits incidental take and develop an incidental take permitting process.

This webinar will provide an update on the USFWS process and perspective from the Avian Power Line Interaction Committee and the Conservation Fund.

In this webinar our panelists will focus on:

• An update on the USFWS MBTA Incidental Take Rulemaking and NEPA Processes
• Perspectives from an Industry Organization and Conservation NGO 

Moderator

Mike Mayer 
NAEP Vice President and Biological Resources Working Group Lead
HDR 

Mike, a senior environmental planning lead with HDR, has over 20 years of experience working on federal, state, and private client projects related to energy, natural resource management, and mining. Michael uses his unique training as both a biologist and a lawyer to address resource issues in a scientifically and legally defensible manner. With his training, he is able to navigate the myriad of regulatory requirements applying ecological knowledge to planning and compliance efforts, navigating natural resource laws such as the Endangered Species Act and Migratory Bird Treaty Act. Michael is the current Vice President of the NAEP and the Minnesota AEP.

Speakers

Noah Matson
Deputy Assistant Director
USFWS

Noah Matson is the Deputy Assistant Director for Migratory Birds for the U.S. Fish and Wildlife Service. In his role, Noah serves as the chief operating officer and oversees all aspects of the Migratory Bird Program. The program is engaged in a comprehensive suite of activities to conserve America’s birds including generating almost $40 million a year from the sale of Duck Stamps to protect habitat, funding an additional $50 million of habitat conservation a year through grants across North American and the Western Hemisphere, operating continental-scale bird monitoring programs, coordinating bird conservation partnerships at nearly every geographic scale, engaging treaty partners under four bilateral migratory bird conventions, and developing regulations to authorize the take and possession of birds in a manner compatible with the migratory bird conventions. Noah has over 20 years of experience working on wildlife conservation policy issues both inside government and the nongovernmental conservation community.

Eric Johnson
Sr. Environmental Consultant for Evergy
Avian Power Line Interaction Committee

Eric Johnson is a Sr. Environmental Consultant for Evergy and has over 18 years of experience working on wildlife conservation and infrastructure related issues in Kansas and Missouri. Prior to Evergy, Eric served as Section Chief for the Kansas Department of Wildlife and Parks where he managed a team of ecologists responsible for assessing and permitting development projects; including new bridge and highway construction, commercial development, and energy related projects. At Evergy, Eric is responsible for management of the company’s Avian Protection Program as well as the assessment and mitigation of wildlife related issues involving new transmission and generation projects. Eric is the current Chair of the Avian Power Line Interaction Committee. 

Nick Morgan
Director for Mitigation Solutions
The Conservation Fund

Nick Morgan is the Director for Mitigation Solutions at The Conservation Fund (The Fund). He focuses on the development and implementation of mitigation projects and programs to offset environmental impacts from infrastructure development across the United States. This includes mitigation for impacts to threatened and endangered species, historic and cultural resources, state and federal lands, and migratory birds. The team facilitates high-quality mitigation projects and programs that have allowed energy and infrastructure developers to meet their mitigation commitments. A popular mitigation fund that Nick manages is the Range-wide Indiana Bat and Northern Long-eared Bat In-Lieu Fee Program, which was established in 2017.

Prior to working for The Fund, Nick was a consultant that assisted clients with regulatory compliance and to cost-effectively mitigate environmental impacts. Nick helped numerous project developers successfully navigate through regulations such as the National Environmental Policy Act, Clean Water Act, Endangered Species Act, Bald, and Golden Eagle Protection Act, Migratory Bird Treaty Act, and other overarching state and local regulations. Nick provided project management and technical expertise for multi-disciplined teams capable of providing the environmental studies, engineering design, permitting, and construction requirements for implementing project developments that met regulatory compliance. This often included ecosystem restoration projects for wetlands, streams, and rare, threatened endangered species.

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