Migratory Bird Protection Act of 2020
This bill prohibits the incidental taking (e.g., capturing or killing) of migratory birds by commercial activities unless the activity is authorized under a permit or is identified as posing de minimis risk to migratory birds.
The Fish and Wildlife Service (FWS) must regulate such incidental taking, including by (1) issuing general permits for certain industries, (2) creating a mitigation fee for any incidental taking of migratory birds, and (3) identifying categories of de minimis risk activities that are exempt from liability for the taking of migratory birds.
In addition, the FWS must establish and maintain a research program: (1) to evaluate the impacts of commercial activities on birds, (2) to evaluate the effectiveness of best management practices and technologies to avoid or minimize such impacts, and (3) to develop new or improved best management practices and technologies.
[Congressional Bills 116th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5552 Introduced in House (IH)]
<DOC>
116th CONGRESS
2d Session
H. R. 5552
To amend the Migratory Bird Treaty Act to affirm that the Migratory
Bird Treaty Act's prohibition on the unauthorized take or killing of
migratory birds includes incidental take by commercial activities, and
to direct the United States Fish and Wildlife Service to regulate such
incidental take, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
January 8, 2020
Mr. Lowenthal (for himself, Mr. Van Drew, Ms. Norton, Mrs. Dingell, Mr.
Huffman, Mr. Grijalva, Ms. McCollum, Ms. Haaland, Ms. Velazquez, Mr.
Gallego, Mr. Ted Lieu of California, Mr. Blumenauer, Mr. McNerney, Ms.
Kuster of New Hampshire, Mrs. Napolitano, Mr. Beyer, Mr. Case, Mr.
DeFazio, and Mr. Rooney of Florida) introduced the following bill;
which was referred to the Committee on Natural Resources
_______________________________________________________________________
A BILL
To amend the Migratory Bird Treaty Act to affirm that the Migratory
Bird Treaty Act's prohibition on the unauthorized take or killing of
migratory birds includes incidental take by commercial activities, and
to direct the United States Fish and Wildlife Service to regulate such
incidental take, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Migratory Bird Protection Act of
2020''.
SEC. 2. AMENDMENTS TO THE MIGRATORY BIRD TREATY ACT.
(a) Incidental Take.--The Migratory Bird Treaty Act (16 U.S.C. 703
et seq.) is amended in section 2(a), by inserting ``incidentally
take,'' before ``attempt to take,''.
(b) Commercial Activity.--
(1) The Migratory Bird Treaty Act (16 U.S.C. 703 et seq.)
is amended by inserting after section 13 the following:
``SEC. 14. INCIDENTAL TAKE OF MIGRATORY BIRDS.
``(a) In General.--It shall be a violation of this Act for any
person to incidentally take a migratory bird as a result of a
commercial activity except as authorized by this section and
regulations issued pursuant to this section.
``(b) General Permits.--The Secretary shall regulate the incidental
take of migratory birds as a result of commercial activity by issuing
general permits for particular industries, as identified by standard
industrial classification, that the Secretary determines have broadly
similar levels of incidental take and for which generally applicable
best management practices or technologies exist that can effectively
avoid or minimize such impacts. With respect to each such industry, the
Secretary shall, based on the best available science--
``(1) identify the commercial activity covered by the
regulation;
``(2) specify appropriate mitigation to be implemented by a
person seeking coverage under a general permit, including
adoption of best management practices or technologies that the
Secretary has determined are practicable and effective in
avoiding or minimizing the incidental take of migratory birds
as a result of such commercial activity;
``(3) specify a mitigation fee in an amount the Secretary
determines is sufficient to reasonably compensate, through
habitat restoration or other appropriate measures, for any
incidental take of migratory birds that results from such
commercial activity; and
``(4) specify a permit fee in an amount that the Secretary
determines is sufficient to offset the cost of developing and
revising such regulations and administering the research
program established under subsection (s).
``(c) Revision of General Permits.--The Secretary shall revise a
general permit issued under subsection (b) if such Secretary determines
that revision is appropriate, or if--
``(1) the extent or nature of the incidental take of
migratory birds caused by the commercial activity covered by
the regulation is significantly different than the extent or
nature of such incidental take that formed the basis of the
regulation;
``(2) new best management practices or technologies can
significantly reduce such incidental take and can practicably
be adopted by the persons engaged in such commercial activity;
or
``(3) such permit has not been revised in the 10 year
period beginning on the date such permit was issued.
``(d) Consultation.--The Secretary shall, before issuing a general
permit under subsection (b), consult with persons engaged in the
industry to which such permit would apply and other interested
stakeholders and afford such persons an opportunity to submit relevant
information.
``(e) Priority General Permits.--
``(1) In general.--The Secretary shall give priority to
development of general permits with respect to industries for
which substantial information exists regarding the extent and
nature of incidental take of migratory birds caused by such
industry and the efficacy and practicability of best management
practices and technologies in reducing such incidental take.
``(2) Commercial activities with specific deadlines.--The
Secretary shall issue general permits under subsection (b)--
``(A) not later than 5 years after the date of
enactment of this Act with respect to--
``(i) oil, gas, and wastewater disposal
pits;
``(ii) methane and other gas burner pipes;
``(iii) communication towers;
``(iv) electric transmission and
distribution lines; and
``(v) wind power generation facilities; and
``(B) not later than 8 years after the date of
enactment for this Act with respect to solar powered
generation facilities.
``(f) Mitigation Fee.--The mitigation fee for each general permit
shall be the amount that the Secretary determines reasonably
compensates, through habitat restoration or other appropriate measures,
for any incidental take of migratory birds that results from the
covered commercial activity after the application of any mitigation
measures specified by the Secretary under subsection (b)(2). Such
determination shall be, to the maximum extent practicable, based on
objective and standardized metrics such as the size or capacity of a
facility for which a person seeks coverage.
``(g) Endangered Species Act of 1973 and National Environmental
Policy Act.--Before issuing a general permit pursuant to subsection
(b), the Secretary shall consult the United States Fish and Wildlife
Service and the National Marine Fisheries Service pursuant to section
7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)(2)),
and prepare an Environmental Impact Statement pursuant to section
102(2)(C) of the National Environmental Policy Act of 1969 (42 U.S.C.
4332(2)(C)).
``(h) Persons Seeking Authorization for Incidental Take.--Except as
provided in subsection (i), a person is authorized to incidentally take
migratory birds if such person is engaged in a commercial activity with
respect to which a general permit has been issued under subsection (b)
and such person--
``(1) notifies the Secretary in writing that such person is
accepting coverage under such permit;
``(2) annually certifies, in writing, to the Secretary that
such person is in compliance with this Act and maintains
records demonstrating such compliance;
``(3) adopts each best management practice or technology
specified by the Secretary under subsection (b)(2);
``(4) pays the mitigation fee specified by the Secretary
under subsection (b)(3) at the time such person notifies the
Secretary pursuant to paragraph (1), and annually thereafter;
and
``(5) pays the permit fee specified by the Secretary under
subsection (b)(4) at the time such person notifies the
Secretary pursuant to paragraph (1).
``(i) Violation of Terms of General Permit.--The Secretary shall
end the coverage of a person under a general permit if such person does
not fulfill the requirements to maintain such permit under subsection
(h).
``(j) Duration of Coverage Under a General Permit.--Except as
provided in subsection (i), a person authorized to take migratory birds
pursuant to a general permit shall be subject to the terms of such
general permit for a period of ten years beginning on the date such
person is first authorized for such take, irrespective of different
terms in a subsequently issued general permit.
``(k) Platform for Efficient Certification.--The Secretary shall
establish a web-based platform or other efficient mechanism for persons
to file a certification and pay the fees required by subsection (h)
without requiring individualized review.
``(l) Interim Coverage for Commercial Activities Proposed for a
General Permit.--
``(1) Commercial activity with a specified deadline.--
Persons or entities engaged in commercial activities listed in
subsection (e)(2) shall, upon payment of a mitigation fee in an
amount determined under paragraph (3) and submission of a
certification of compliance to the Secretary in accordance with
this subsection, be exempt from liability for incidental take
caused by such commercial activities until the earlier of--
``(A) the issuance of a general permit covering
such commercial activity under subsection (b); or
``(B) with respect to--
``(i) an activity described in subsection
(e)(2)(A), the date that is 5 years after the
date of enactment of this section; or
``(ii) an activity described in subsection
(e)(2)(B), the date that is 8 years after the
date of enactment of this section.
``(2) Commercial activity for which the secretary has given
notice of intent to issue a permit.--A person engaged in a
commercial activity for which the Secretary has given notice in
the Federal Register of intent to issue a general permit under
subsection (b) shall, upon payment of a mitigation fee in an
amount determined under paragraph (3) and submission of a
certification of compliance to the Secretary in accordance with
this subsection, be exempt from liability for incidental take
caused by such commercial activities until the earlier of--
``(A) the date that is 5 years after the date of
issuance of such notice; or
``(B) the issuance of such regulation.
``(3) Mitigation fee.--The amount of the mitigation fee
required by paragraph (1) and (2) shall be the amount the
Secretary determines is sufficient to reasonably compensate,
through habitat restoration or other appropriate measures, for
any incidental take of migratory birds that results from the
relevant commercial activity.
``(4) Certification of mitigation measures.--A person
seeking interim coverage under this subsection shall submit to
the Secretary a certification identifying any measures such
person has taken to minimize incidental take of migratory birds
resulting from the commercial activity for which such person is
seeking interim coverage and committing to continue such
measures for the duration of the interim coverage.
``(5) Reckless or grossly negligent conduct.--The exemption
from liability for commercial activities receiving interim
coverage under this subsection shall not extend to incidental
take that is caused by conduct that is reckless or grossly
negligent.
``(m) Individual Permits.--The Secretary may provide a permit on an
individual basis to incidentally take migratory birds to a person
engaged in a commercial activity for which authorizing regulations have
not been issued. Each individual permit shall--
``(1) identify the commercial activity to which the permit
applies;
``(2) specify the duration of the permit, not to exceed 10
years;
``(3) specify the amount and nature of incidental take
authorized by the permit;
``(4) specify best management practices or technologies
that the Secretary has determined are practicable and effective
in avoiding or minimizing the incidental take of migratory
birds by such commercial activity;
``(5) specify a mitigation fee in an amount the Secretary
determines is sufficient to reasonably compensate, through
habitat restoration or other appropriate measures, for any
incidental take of migratory birds that results from such
commercial activity;
``(6) specify a permit fee, to be paid at the time such
person submits a certification to the Secretary pursuant to
paragraph (7), to offset the cost of developing and revising
such permit and administering the research program established
under subsection (s);
``(7) require such person to submit to the Secretary an
annual certification demonstrating such person's compliance
with the terms of the permit;
``(8) provide for the terms of the permit to be revised
during the duration of such permit if new information indicates
that--
``(A) the extent or nature of the incidental take
of migratory birds caused by such commercial activities
is significantly different than was understood at the
time such permit was issued; or
``(B) new best management practices, technologies
or other measures can significantly reduce such impacts
and can practicably be adopted by the applicant; and
``(9) provide for revocation of the permit if the applicant
fails to comply with the terms of such permit.
``(n) Compliance Certification.--The Secretary shall make each
certification submitted under this section publicly available.
``(o) De Minimis Activities.--The Secretary shall make a rule
identifying categories of commercial activities by standard industrial
classification that are exempt from liability for the killing or taking
of migratory birds under this Act because they do not cumulatively or
individually pose appreciable risks to migratory birds.
``(p) Deposit of Mitigation Fees.--Mitigation fees paid under this
section shall be deposited into the North American Wetlands
Conservation Fund established under the North American Wetlands
Conservation Act (16 U.S.C. 4401 et seq.), the Neotropical Migratory
Bird Conservation Fund established by section 9 of the Neotropical
Migratory Bird Conservation Act (16 U.S.C. 6108), or such other fund or
account established by the Secretary provided that priority for use of
such fees shall be given to mitigating impacts or restoring or
enhancing populations of bird species--
``(1) affected by the permitted activities; and
``(2) identified as `birds of conservation concern' under
authority of section 13 of the Fish and Wildlife Conservation
Act of 1980 (16 U.S.C. 2912).
``(q) Authorization of Appropriations.--There is authorized to be
appropriated $10,000,000 for each fiscal year beginning after the date
of the enactment of this section to carry out this section.
``(r) Report to Congress.--Not later than 5 years after the date of
enactment of this section, and at the end of each 5 year period
thereafter, the Secretary shall submit a report to the Chair and
Ranking Member of the House Natural Resources Committee and to the
Chair and Ranking Member of the Senate Environment and Public Works
Committee on--
``(1) the conservation status of migratory birds;
``(2) the impacts upon migratory birds of commercial
activities for which authorizing regulations have been issued
under this section;
``(3) the effectiveness of best management practices,
technologies, and other measures in reducing such impacts; and
``(4) such Secretary's progress in carrying out the
functions and responsibilities given to the Secretary under
this section.
``(s) Research Program.--The Secretary shall establish and
maintain, in consultation with research institutions, institutions of
higher education (as such term is defined in section 101(a) of the
Higher Education Act of 1965 (20 U.S.C. 1001(a))), wildlife
conservation groups, and representatives of commercial activities
regulated under this section, a research program to--
``(1) evaluate the effectiveness of best management
practices and technologies incorporated in regulations and
permits under this section;
``(2) develop and evaluate new or improved best management
practices and technologies; and
``(3) evaluate the impacts of commercial activities
regulated under this section on bird populations.
``SEC. 15. DEFINITIONS.
``For the purposes of this Act:
``(1) Incidental take.--The terms `incidental take' and
`incidentally take' means the killing or taking of migratory
birds that directly and foreseeably results from, but is not
the purpose of, a commercial activity.
``(2) Commercial activity.--The term `commercial activity'
means----
``(A) the conduct of any aspect of a business,
concession, or service in order to provide goods or
services to any person for compensation, including
manufacturing, distributing, transporting, and
marketing goods and services; and
``(B) activities of Federal, State, or local
governments related to the management or administration
of government property or programs.
``(3) Best management practices.--The term `best management
practices' means operational practices, siting, and other
guidelines prescribed by the Secretary to avoid or minimize the
incidental take of migratory birds.
``(4) Secretary.--The term `Secretary' means the Secretary
of the Interior acting through the Director of the United
States Fish and Wildlife Service.''.
(2) Conforming amendments.--The Migratory Bird Treaty Act
is amended--
(A) in section 3, by striking ``of Agriculture'';
(B) in section 5--
(i) by striking ``of the Interior''; and
(ii) by striking ``Agriculture authorized
by the Secretary of Agriculture'' and inserting
``Interior authorized by the Secretary'';
(C) in section 6(d) by striking ``of the
Interior''; and
(D) in section 9, by striking ``of Agriculture''.
(c) Penalties.--Section 6 of the Migratory Bird Treaty Act (16
U.S.C. 707) is amended by inserting after subsection (d) the
following--
``(e) Whoever in violation of this Act, shall incidentally take a
migratory bird or violate the terms of a permit or any rule issued by
the Secretary to administer section 14 of this Act may be assessed a
civil penalty by the Secretary of not more than $10,000 per violation,
except that unpermitted incidental take which is caused by conduct that
is reckless or grossly negligent shall be subject to the penalties of
subsection (a). The Secretary is authorized to commence a civil action
for appropriate relief, including a permanent or temporary injunction,
for any violation of the terms of a permit or regulation issued under
such section.''.
<all>
Hearings Held by the Subcommittee on Water, Oceans, and Wildlife Prior to Introduction.
Introduced in House
Introduced in House
Referred to the House Committee on Natural Resources.
Committee Consideration and Mark-up Session Held.
Ordered to be Reported (Amended) by the Yeas and Nays: 20 - 14.
Reported (Amended) by the Committee on Natural Resources. H. Rept. 116-482.
Reported (Amended) by the Committee on Natural Resources. H. Rept. 116-482.
Placed on the Union Calendar, Calendar No. 386.
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