What Happened
Starting December 3, 2021, the U.S. Fish and Wildlife Service (USFWS) will revert to interpreting incidental take under the Migratory Bird Treaty Act (MBTA) as it did prior to the Trump Administration’s Jorjani Opinion. The Jorjani Opinion concluded that prohibition of incidental take applied only to direct and purposeful actions that resulted in loss of protected migratory birds, eggs, or their nests. On January 7, 2021, in the midnight hour of the Trump Administration, the USFWS published a final rule defining the scope of the MBTA as interpreted in the Jorjani Opinion.
The USFWS under the Biden Administration has revoked the January 7 final rule with the intent “to return to implementing the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial precedent and longstanding agency practice prior to 2017.” The USFWS has also published a Director’s Order clarifying its current enforcement position.
SWCA Lens
According to the Director’s Order, the USFWS’s intention “through this policy is to apply a transparent and consistent approach to managing and prioritizing our enforcement of incidental take, taking into account the case law applicable in a given jurisdiction and the facts and circumstances of each case.”
Therefore, it is important to understand the current scope of MBTA prohibitions will depend on your project’s…
