FWS To Authorize Incidental Takes Under the Migratory Bird Treaty Act?

Late last month, the Fish & Wildlife Service issued a Notice of Intent to prepare a programmatic environmental impact statement to evaluate various options for authorizing incidental takes under the Migratory Bird Treaty Act.  Of likely the greatest interest to the regulated community, FWS will consider issuing general permits, with performance standards, for certain industry sectors.  FWS specifically called out the following sectors:

  • Oil, gas, and wastewater disposal pits
  • Methane or other gas burner pipes at oil production sites
  • Communications towers
  • Electric transmission and distribution lines.

Although not called out in separate bullets, the Notice also states the FWS is considering a general permit for wind energy.  image of birds flying by wind turbineGiven recent concerns over bird deaths associated with  solar  installations, that would also seem to be a fruitful area.

There are obviously pluses and minuses to promulgation of a general permit and the performance standards could end up being unduly onerous.  Overall, though, I’d expect that the certainty and reduced transaction costs associated with a form of general permit could be a net gain for the wind and solar industries.

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