The Fish and Wildlife Service is evaluating the development of an incidental take permitting program under the Migratory Bird Treaty Act (MBTA). The MBTA is a statute of very broad reach, prohibiting the killing of some 1,027 species of birds in the United States. The proposed program would affect planned energy and infrastructure projects that could result in migratory bird deaths either directly, through bird collisions with man-made structures, or indirectly, by altering bird habitat. In a Notice of Intent released on May 22, 2015, the Service announced it would prepare a Programmatic Environmental Impact Statement that analyzes a number of options for regulating incidental takes of migratory birds, including the development of individual and/or general incidental take permit programs. With respect to the latter, the Service is considering a general conditional authorization for incidental takes from specific industry sectors and hazards, including oil gas and wastewater disposal pits; methane or other gas burner pipes at oil production sites; communication towers; and electric transmission and distribution lines. Of importance to renewable energy developers, the Service is asking for public comment on whether a general permit would be appropriate for wind energy projects, building on guidance the Service has already developed with industry in that sector, or for any other industry sectors.
For more information, see our May 22, 2015, Hogan Lovells Energy and Natural Resources Alert.