Revision to Migratory Bird Treaty Act Nears Finalization

December 4, 2020

On November 27, the U.S. Fish and Wildlife Service released for 30 day public comment the final Environmental Impact Statement (EIS) associated with the new Migratory Bird Treaty Act (MBTA) rulemaking.  The final EIS is available for public review for 30 days, after which the Service will issue a Record of Decision.  The new, AGC-supported MBTA rule is undergoing review at the Office of Management and Budget and is expected to be final around the new year.  Contractors employ multiple strategies to avoid migratory birds on projects; however, following the law does not reduce risk should an "incidental take" occur. 

The MBTA proposed revisions would codify a Department of Interior policy on incidental take released in 2017.  The policy determined that the Act applies only to intentional take, not take that is incidental to lawful activity.  A Federal circuit court vacated the 2017 policy in August of this year; however, the Service has continued work on the final rule.  According to the Service, “The court's vacatur of the [policy] does not directly affect our rulemaking process and effectively underscores the need to codify an official interpretation of the MBTA's application to incidental take.”

In March 2020, AGC submitted a comment letter in support of the proposed changes to the MBTA.

For more information, contact Melinda Tomaino at

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