A New “Take” -- Migratory Bird Treaty Act’s New Definition

Tweet Tweet! National Bird Day was January 5, and the United States Fish and Wildlife Service (USFWS) has published their finding on the scope and definition of the Migratory Bird Treaty Act (MBTA). 

The MBTA’s prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions directed at migratory birds, their nests, or their eggs. 

Essentially, this ruling found that activities defined in this legislation no longer include accidental or incidental injury or death to migratory birds. “Incidental take” is harm that results from an activity but is not the purpose of that activity. This new rule goes into effect on February 8, 2021.

Although this ruling may alter the need to complete nesting surveys for migratory birds, this does not preclude nesting surveys that may be required for threatened and endangered species protected under the Endangered Species Act (ESA) or Bald Eagles protected under the Bald and Golden Eagle Protection Act (BGEPA).

Hollaway Environmental + Communications Services has conducted hundreds of surveys for threatened and endangered species for federal and state governments, as well as for clients in the private sector . 

We are committed to working with our clients to determine what surveys will be necessary and we are staying up-to-date on the rules and regulations that govern these activities. Stay tuned, as this rule may change again with the incoming administration!