The Biden administration has revoked a Trump administration rule that would have reinterpreted the Migratory Bird Treaty Act to exempt accidental deaths. New regulations are being drafted that may sanction any killing of migratory birds, including those caused by electrocution or collision with power lines.

The U.S. Fish and Wildlife Service acted to officially rescind the January rule that found MBTA does not penalize entities such as utilities for accidental bird deaths. The agency also issued guidance on how it will use and prioritize its enforcement discretion in cases of incidental take or accidental deaths of migratory birds. Now, if common activities like infrastructure construction and vegetation management are likely to affect birds, entities must develop and implement beneficial practices to mitigate harm.

The FWS has also launched a new rulemaking to redefine “take" under the MBTA to make clear that direct, foreseeable take as well as incidental injury and killing of migratory birds are prohibited. The overall rulemaking process will require about two years. As part of this effort, the FWS is seeking input on how to develop a permitting program. NRECA plans to file comments by the Dec. 3 deadline.

NRECA submitted recommendations to the FWS in support of prohibiting purposeful killing of migratory birds but continuing to exempt incidental take by otherwise legal activities. Inconsistent implementation of the law in the past has hampered co-ops in operating, maintaining and upgrading the electric system for reliability and safety.

“That January 2021 rule was beneficial in defining federal regulators' responsibilities and resolving legal uncertainty," said Janelle Lemen, NRECA regulatory director. “Revoking that rule and returning to enforcement discretion will create potentially expansive costs and liability for electric co-ops. In addition, it will cause potential delays for planned infrastructure projects needed to modernize and diversity the electric grid."

She said NRECA will continue to impress on the FWS that “co-ops have a long history of voluntarily implementing best practices to reduce impacts to migratory birds and remain committed and incentivized to continue these best practices."

“Ahead of any new MBTA rules, we urge the Fish and Wildlife Service to give solid consideration to these resources and to all the voluntary conservation work and investments our co-ops members have made for decades," she said.

NRECA developed a webinar series and Avian Protection Toolkit to help co-ops maintain reliability while limiting interactions with migratory birds.