A new federal regulation makes clear that accidental death or injury to migratory birds in the course of routine operation or maintenance of electric power lines will not trigger penalties.

The U.S. Fish and Wildlife Service’s final rule, based on a 2017 legal interpretation, affirms that the Migratory Bird Treaty Act only applies to intentionally injuring or killing birds. The rule is set to take effect Feb. 8 unless the new Biden administration or the new Congress moves to block its implementation.

NRECA has supported efforts by the federal agency to clarify the intent of the MBTA and its intersection with electric infrastructure, said Janelle Lemen, regulatory director of the national trade group for electric cooperatives.

“If implemented, this new rule will provide greater certainty for electric co-ops as they continue to maintain and modernize the electric grid while reducing the impacts of electric equipment on migratory birds,” Lemen said. “However, the incoming administration may pause the rule’s effective date to evaluate its benefits.”

Electric co-ops have for decades deployed strategies to reduce interactions between birds and electric infrastructure. Many have active avian protection programs and plan to continue these efforts.

“Tri-State will continue to implement our avian protection program to minimize impacts to migratory birds that may result from construction and operation of our facilities,” said Karl W. Myers, transmission siting, permitting and environmental planning manager at Tri-State Generation & Transmission based in Westminster, Colorado.

The final rule follows a December 2017 legal analysis by the Department of the Interior of a 2015 ruling by the 5th Circuit Court of Appeals that incidental take or unintentional harm to migratory birds by energy companies’ activities does not prompt punishment under the MBTA.

The final rule also addresses an August 2020 court ruling that tossed out the department’s 2017 interpretation.

This rule does not apply to incidental take of bald and golden eagles and threatened and endangered bird species, which are still protected under the Bald and Golden Eagle Protection Act and the Endangered Species Act.