Changes to Migratory Bird “Take” Regulations: Frozen for Now

On January 7, 2021, the U.S. Fish and Wildlife Service (USFWS) published the Final Rule for the Regulations Governing Take of Migratory Birds in the Federal Register.  The Rule was scheduled to take effect on February 6, 2021, but a freeze placed through President Biden’s Executive Order on January 20, 2021 suspended implementation pending a review. Wetland Studies and Solutions, Inc. (WSSI) has been monitoring the changes to these regulations for the Migratory Bird Treaty Act (MBTA), because of the implications for projects that can impact migratory bird species (see our February 23, 2018 Field Notes article for details).

In the summary of this Final Rule, the USFWS stated “the MBTA’s prohibitions on pursuing, hunting, taking, capturing, killing, or attempting to do the same, apply only to actions directed at migratory birds, their nests, or their eggs.”  This means that actions that can cause “incidental take” – an unintentional impact – are not prohibited, a change from previous interpretation of the MBTA.  Virginia has chosen to establish its own Incidental Take regulations to continue that protection in the Commonwealth (details in this edition of Field Notes). Maryland also showed concern over the impact of the MBTA changes, and was part of a collective Complaint for Declaratory and Injunctive Relief filed by 12 states in early January.

Questions about the MBTA?

We will keep you informed on the future and implications of this new Rule should it go into effect. For questions about the MBTA and how it may affect your projects, please contact Ben Rosner in Virginia or Mike Klebasko in Maryland.


  • Ben Rosner

    Gainesville, VA

  • Christie Blevins

    Gainesville, VA