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AGC Supports Proposed Updates to Migratory Bird Treaty Act

March 26, 2020

On Mar. 19, AGC submitted comments in support of the U.S. Fish and Wildlife Service’s proposed update to the Migratory Bird Treaty Act (MBTA), which would clarify that unintended or incidental impacts to migratory birds that occur within the scope of lawful, and often necessary, business activities do not carry criminal penalties and expansive liability exposure. The proposed rule would codify and apply a uniform interpretation of the MBTA that its prohibitions do not apply to incidental take. In addition, the proposal would limit the scope of the Act to actions that are directed at migratory birds, their nests, or their eggs, and would clarify that 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 Act.

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.

AGC strongly supports the approach to incidental take outlined in this proposed rule because the many avoidance and minimization efforts are imperfect. Managing birds in the field is notoriously difficult, even after careful planning and scheduling around common breeding and nesting times and with the use of deterrents. The proposed rule, if finalized, would provide a much-needed safeguard should protective measures fail.

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 scope of the Act’s take prohibition has created ambiguity and confusion for potential defendants who wish to comply with the MBTA while continuing their otherwise legal activities.  

For more information, contact Melinda Tomaino at melinda.tomaino@agc.org

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