Incidental Take Under the Migratory Bird Treaty Act: Biden Administration Revokes Trump-Era Rule and Proposes New Permitting Regime

As expected, on October 4, 2021, the U.S. Fish and Wildlife Service (“FWS”) published a Final Rule and issued a Director’s Order formally revoking the Trump-era rule (issued January 7, 2021) that had limited liability for incidental takes of migratory birds under the Migratory Bird Treaty Act of 1918 (“MBTA”) and affirmatively stating that the MBTA prohibits incidental take. However, the FWS didn’t stop there; on the same date, the FWS published an Advance Notice of Proposed Rulemaking (“ANPR”) to consider the creation of a new MBTA incidental take permitting program.

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