By Nick Goldstein, vice president of regulatory and legal issues, ARTBA

ARTBA expressed support in March 19 comments for a proposed clarification regarding the enforcement of the Migratory Bird Treaty Act (MBTA) by the U.S. Fish and Wildlife Service (FWS).  Under the proposal, only actions “directed at migratory birds, their nests or their eggs” that result in injury or death will be considered violations.

The proposed change would protect firms from being liable for accidental bird injuries and deaths during the normal course of construction. It would codify a 2017 U.S. Department of the Interior legal opinion.

The transportation construction industry is not asking for impunity to harm or take migratory birds and is committed to minimizing its impact on wildlife and other natural resources.  However, the enforcement and interpretation of the MBTA should balance 1.) the risk of incidental and unpreventable contact with the animals on transportation construction job sites against 2.) the project costs and delays required to prevent any such contact.

Once finalized, the change would help reduce transportation construction project delays by preventing unnecessary MBTA penalties when there was no intent to kill or injure protected birds.

PHOTO: The golden eagle is protected by the Migratory Bird Treaty Act. U.S. Fish & Wildlife photo.