The Most Important Bird Law in the Country Needs an Overhaul

Conservation has come a long way since the late 1800s when the Snowy Egret was nearly hunted to extinction. But the threats to birds have evolved in tandem. Today natural-gas flares singe Red-eyed Vireos, oil pits drown roadrunners, and wind turbines down pelicans. All told, modern industries kill hundreds of millions of birds per year. To safeguard species for the future, the U.S. Fish and Wildlife Service recently set out to bolster one of its oldest and most powerful tools: the Migratory Bird Treaty Act.

First passed by Congress nearly a century ago, the MBTA prohibits people from capturing or harming birds from more than a thousand migratory species and from possessing or selling any of their parts. Although it was amended several times to implement bird-protection treaties with other nations, the law hasn’t been updated in 44 years. In May 2015, the USFWS announced plans to create a rule strengthening protections under the act—but it
 is now in danger of missing its best window to do so.

“A whole range of industrial activities are killing birds when we have simple, inexpensive ways to address those threats,” says Mike Daulton, head of the National Audubon Society’s policy team. “By modernizing the law we can get those threats under control and conserve countless birds.” The agency has already outlined voluntary guidelines for utilities and the wind industry, which include bird-friendly steps such as limiting the height of power lines and putting hoods over turbine lights. Audubon and other conservation groups would like to see such precautions made mandatory, and the forthcoming rule would afford the USFWS that opportunity.

The agency has proposed developing a new permitting process for industries that unintentionally kill species protected under the MBTA, allowing them to legally “take” 
birds as long as they follow certain measures to minimize deaths. If a company expects that its operations will kill a lot of birds, it might be required to pay a mitigation fee. Revenue from those fees and from permit applications could help the cash-strapped agency enforce the act and process permits more efficiently.

“There has not been a major new regulatory framework in the government for environmental matters 
in 30 years, so this is pretty visionary,” says Bob Dreher, senior vice president of conservation programs at Defenders of Wildlife. Until he moved to the nonprofit in June, Dreher worked intensively on the effort as associate director of the USFWS. “It’s a complicated suite of regulatory approaches, all of them new, and 
the agency has to figure out how to make them work right,” he says.

Because the USFWS has yet 
to publish a draft rule articulating specific details, it’s not clear which standards it will include. Whatever the end result, it must benefit birds, not industry, says Brian Rutledge, director of Audubon’s Sagebrush Ecosystem Initiative. “Any change to the act should make killing birds more difficult, not easier,” he says.

As it stands now, the USFWS has to take to federal court companies that violate the MBTA, and 
the outcome varies case to case and judge to judge. This permit process would bring much needed clarity 
for both sides, says Andrew Ogden, a lawyer who wrote a white paper about incidental take published in William & Mary Environmental Law and Policy Review. Cape Wind, the offshore wind project proposed in Nantucket Sound, plans to apply for a permit under the MBTA, for example. Though it could apply for a special-use permit that would allow the farm to kill birds—something the agency has issued only twice before—the proposed incidental-take permit would be a better fit for the operation, says Dreher.

The Interior Department has written a legal opinion on the scope of its authority under the law, which would help avoid future court battles, but it has yet to publish 
that either. A spokesperson said the USFWS is now reviewing public comments about a possible permit rule, but declined to say more. Conservation groups, led by Audubon, are pushing for the agency to forge ahead and publish both before the Obama administration and USFWS officials involved leave office.

“We have a golden opportunity to make progress,” says Audubon’s Daulton. “We’re running out of time in this administration.” When the administration changes, political priorities could shift, leaving millions of birds unprotected.