AGC Responds to Changes to Incidental Take under the Migratory Bird Treaty Act

On Dec. 3, AGC submitted comments to the U.S. Fish and Wildlife Service on proposed changes that would codify the Biden Administration’s interpretation that the Migratory Bird Treaty Act prohibits incidental take---injury or harm that occurs incidental to otherwise lawful activities.  If a bird or nest is injured or harmed in the normal course of construction activities, then this could expose contractors to criminal liability should the Service take enforcement action.  The Service also sought feedback on a potential new permitting program for incidental take. 

Currently the courts are divided on whether the Act prohibits incidental take; and the prior administration interpreted the text to prohibit intentional actions, a policy which the Service formally revoked in late 2021. 

In response to the call for feedback on a permitting program, AGC urged the Service to ensure any permitting program would not further delay implementation of projects, should be reasonable and limited in scope, and avoiding disproportionately costly burdens.

For more information, contact Melinda Tomaino at

Industry Priorities