On October 4, 2021, the U.S. Fish and Wildlife Service (Service) published three significant regulatory notices in the Federal Register related to migratory birds. First, the Service published its final rule revoking a Trump-era rule that limited the scope of the Migratory Bird Treaty Act (MBTA) to intentional acts that kill, harass, or harm migratory birds. (Docket FWS-HQ-MB-2018-0090). Second, the Service published notice of its Director’s Order, reflecting the Service’s non-rule interpretation that the MBTA does in fact criminalize incidental take of migratory birds and that it will exercise prosecutorial discretion to enforce the statute accordingly (Docket FWS-HQ-MB-2018-0090). Finally, the Service published an Advanced Notice of Proposed Rulemaking (ANPR) announcing its intention to develop incidental take permitting rules for migratory birds, a rulemaking that had been suspended during the Trump Administration (Docket FWS-HQ-MB-2021-0105).

The revocation rule and Director’s Order take effect December 3. The ANPR likewise provides for a comment period to guide rule development until December 3. Additionally, the Service announced it will hold six scoping meetings on rule development in webinar format, three for federally recognized Native American Tribes and three for the general public. The webinars for the general public are scheduled to be held on November 4, November 8, and November 10. View more.

In November 2016, the Florida Fish & Wildlife Conservation Commission (FWC) adopted a comprehensive imperiled species management plan (ISMP) for 59 species in Florida, which includes 38 state-threatened species and 21 unlisted but managed species. Since that time, FWC has been developing species-specific conservation and permitting guidelines, which provide, among other things, species behavior, habitat and survey information, recommended conservation actions, categories of exempt activities, recommendations for avoiding and minimizing the “take” of state-listed or managed species, and permitting requirements (including mitigation) should an incidental take or scientific collection permit be needed. To date, FWC has finalized conservation and permitting guidelines for 45 species and adopted rules incorporating the guidelines by reference into its rules at Chapter 68A, F.A.C.. Guidelines for Imperiled Beach Nesting Birds (IBNB) (American Oystercatcher, Least Tern, Snowy Plover, and Black Skimmer) were circulated to stakeholders in draft form on September 15, and the comment period on the draft closed October 18.  Revised guidelines are scheduled to be adopted by the FWC at its meeting on December 15-16, but have not yet been circulated to stakeholders. View more.

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