Project Impacts to Birds are Once Again Illegal under the MBTA
by Transect Team, on Aug 13, 2020
On August 11, 2020, a U.S. district judge vacated a 2017 Department of Interior opinion related to migratory birds (M Opinion). For those of you who stopped keeping tabs on the number of environmental policy changes the current administration has made: The 2017 M Opinion stated that businesses that accidentally kill migratory birds or destroy their nests during their normal operations did NOT violate the MBTA. The M Opinion was a dramatic reversal of the existing interpretation of the MBTA, and it reversed Obama-era MBTA guidelines that has broadened the government’s reach under the MBTA. A proposed rule to codify the M Opinion was drafted earlier this year, but was never finalized.
Now, U.S. District Judge Valerie Caproni has vacated the M Opinion. The judge, who opened her order by stating “It is not only a sin to kill a mockingbird, it is also a crime” (a reference to Harper Lee’s 1960 book To Kill a Mockingbird), stated that the M Opinion went against decades of precedent, was not administratively sound, and is backed by questionable expertise. The incidental take of migratory birds and their nests as a part of otherwise unlawful activities is once again illegal.
Common lawful activities that can impacts migratory birds include, but are not limited to:
- Direct take of adult, chicks, or eggs through vegetation removal, trimming, and grading
- Accidental introduction of invasive species following vegetation establishment
- Artificial lighting
- Collision with project infrastructure and vehicles
- Entrapment in project structures or allowing perching or nesting in dangerous areas
- Noise above ambient levels (usually during nesting season)
- Chemical contamination
There is no permit process available for project proponents that will have impacts to migratory birds or theirs nests. Under the MBTA, negative impacts to birds and nests could result in a misdemeanor violation with maximum penalty of six months in prison and $15,000 fine. Since there is no permit to authorize impacts to birds and nests, the best and only option to avoid fines is survey, avoidance, and monitoring.
Want to know how to avoid impacts to migratory birds on your next project? Transect identifies environmental risks around issues like migratory birds and provides industry specific avoidance measures to help keep your project in compliance with the MBTA. Visit transect.com to order your first free report today.