FWS Request Feedback on Permitting Program for Migratory Birds

The U.S. Fish and Wildlife Service (U.S. FWS) has undertaken several recent policy changes related to the incidental take (injury or harm) of migratory birds.  On October 4, the Service officially reversed the Trump Administration’s policy that decriminalized take that was incidental (not the intended action) to an otherwise lawful activity.  The Service also recently released a Director’s Order on Incidental Take (No. 225) to address how they plan to approach incidental take implementation and enforcement.  Lastly, the Service released an advanced notice of proposed rulemaking (ANRPM) to solicit feedback on a potential permitting program that would authorize the incidental take of migratory birds. Feedback is due December 3.

In prior comment letters and in a recent meeting with the Service, AGC explained that 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 an incidental take action occurring.  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. 

In the notice, the Service outlined a three-tiered approach that it is considering to authorize/permit incidental take: (1) exceptions to the Migratory Bird Treaty Act’s (MBTA) prohibition on incidental take; (2) general permits for certain activity types; and (3) specific or individual permits.  The Service also is considering a fee structure or compensatory mitigation approach to fund programs to benefit birds. 

The ANPRM is the beginning of a longer process to develop, propose and finalize a rule to authorize incidental take within certain parameters.  If you have specific feedback that you would like to share with AGC for this advanced notice or as the process progresses, please reach out to Melinda Tomaino at  AGC also attended a recent meeting with the Service organized by the Small Business Administration’s Office of Advocacy.  In preparation for that meeting they shared the four questions below that helped frame the request for feedback.

  1. 1) What is your current experience with MBTA incidental take issues?
  2. 2) What are the costs you’ve incurred?
  3. 3) What issues have you encountered in obtaining FWS migratory bird permits if you have obtained any?
  4. 4) Are there specific features of a comprehensive permitting program you would like to see or other ideas you can suggest?

For more information or to share your feedback with AGC, please contact Melinda Tomaino at

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