Proposed Updates to Migratory Bird Treaty Act Add Clarity on Prohibited Actions

February 6, 2020

AGC is preparing comments on a U.S. Fish and Wildlife Service proposed update to the Migratory Bird Treaty Act (MBTA) that would clarify when damage to protected birds would result in criminal charges. The Feb. 3 proposal would codify the Trump administration’s Solicitor’s Opinion M-37050 that determined “incidental take” resulting from otherwise lawful action does not violate the Act---and instead would prohibit actions specifically directed at migratory birds, their nests, or their eggs. Currently, construction contractors actively avoid and minimize impacts on migratory birds and implement protective measures outlined by the Service. However, that does not eliminate the risk of severe penalties. For further information on this proposal, click “learn more”

The construction industry would benefit from regulatory clarity on incidental take. The MBTA does not address incidental take, and a federal circuit court split on the issue does not provide needed clarity. In Jan. 2017, the Obama administration issued a late-hour opinion to criminalize incidental take, which the Trump administration reversed within a month---issuing their own opinion (M-37050) in December of that year. That opinion is now the subject of litigation. On Capitol Hill, Democrats on the House Natural Resources Committee are seeking to amend the MBTA (through H.R. 5552) to prohibit incidental take; and the Senate Environment and Public Works Committee held an oversight hearing on Feb. 5 with the Department of the Interior that included discussion of the proposed rule.

For more information, contact Melinda Tomaino at

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