I 

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. 

VELA ́ZQUEZ, 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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Migratory Bird Protec3 tion Act of 2020’’. 

4 SEC. 2. AMENDMENTS TO THE MIGRATORY BIRD TREATY 

5 ACT. 

6 (a) INCIDENTAL TAKE.—The Migratory Bird Treaty 

7 Act (16 U.S.C. 703 et seq.) is amended in section 2(a), 

8 by inserting ‘‘incidentally take,’’ before ‘‘attempt to 

9 take,’’. 

10 (b) COMMERCIAL ACTIVITY.— 

11 (1) The Migratory Bird Treaty Act (16 U.S.C. 

12 703 et seq.) is amended by inserting after section 13 

13 the following: 

14 ‘‘SEC. 14. INCIDENTAL TAKE OF MIGRATORY BIRDS. 

15 ‘‘(a) IN GENERAL.—It shall be a violation of this Act 

16 for any person to incidentally take a migratory bird as 

17 a result of a commercial activity except as authorized by 

18 this section and regulations issued pursuant to this sec19 tion. 

20 ‘‘(b) GENERAL PERMITS.—The Secretary shall regu21 late the incidental take of migratory birds as a result of 

22 commercial activity by issuing general permits for par23 ticular industries, as identified by standard industrial clas24 sification, that the Secretary determines have broadly 

25 similar levels of incidental take and for which generally 

26 applicable best management practices or technologies exist 


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1 that can effectively avoid or minimize such impacts. With 

2 respect to each such industry, the Secretary shall, based 

3 on the best available science— 

4 ‘‘(1) identify the commercial activity covered by 

5 the regulation; 

6 ‘‘(2) specify appropriate mitigation to be imple7 mented by a person seeking coverage under a gen8 eral permit, including adoption of best management 

9 practices or technologies that the Secretary has de10 termined are practicable and effective in avoiding or 

11 minimizing the incidental take of migratory birds as 

12 a result of such commercial activity; 

13 ‘‘(3) specify a mitigation fee in an amount the 

14 Secretary determines is sufficient to reasonably com15 pensate, through habitat restoration or other appro16 priate measures, for any incidental take of migratory 

17 birds that results from such commercial activity; and 

18 ‘‘(4) specify a permit fee in an amount that the 

19 Secretary determines is sufficient to offset the cost 

20 of developing and revising such regulations and ad21 ministering the research program established under 

22 subsection (s). 

23 ‘‘(c) REVISION OF GENERAL PERMITS.—The Sec24 retary shall revise a general permit issued under subVerDate Sep 11 2014 21:37 Jan 10, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H5552.IH H5552

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1 section (b) if such Secretary determines that revision is 

2 appropriate, or if— 

3 ‘‘(1) the extent or nature of the incidental take 

4 of migratory birds caused by the commercial activity 

5 covered by the regulation is significantly different 

6 than the extent or nature of such incidental take 

7 that formed the basis of the regulation; 

8 ‘‘(2) new best management practices or tech9 nologies can significantly reduce such incidental take 

10 and can practicably be adopted by the persons en11 gaged in such commercial activity; or 

12 ‘‘(3) such permit has not been revised in the 10 

13 year period beginning on the date such permit was 

14 issued. 

15 ‘‘(d) CONSULTATION.—The Secretary shall, before 

16 issuing a general permit under subsection (b), consult with 

17 persons engaged in the industry to which such permit 

18 would apply and other interested stakeholders and afford 

19 such persons an opportunity to submit relevant informa20 tion. 

21 ‘‘(e) PRIORITY GENERAL PERMITS.— 

22 ‘‘(1) IN GENERAL.—The Secretary shall give 

23 priority to development of general permits with re24 spect to industries for which substantial information 

25 exists regarding the extent and nature of incidental 


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1 take of migratory birds caused by such industry and 

2 the efficacy and practicability of best management 

3 practices and technologies in reducing such inci4 dental take. 

5 ‘‘(2) COMMERCIAL ACTIVITIES WITH SPECIFIC

6 DEADLINES.—The Secretary shall issue general per7 mits under subsection (b)— 

8 ‘‘(A) not later than 5 years after the date 

9 of enactment of this Act with respect to— 

10 ‘‘(i) oil, gas, and wastewater disposal 

11 pits; 

12 ‘‘(ii) methane and other gas burner 

13 pipes; 

14 ‘‘(iii) communication towers; 

15 ‘‘(iv) electric transmission and dis16 tribution lines; and 

17 ‘‘(v) wind power generation facilities; 

18 and 

19 ‘‘(B) not later than 8 years after the date 

20 of enactment for this Act with respect to solar 

21 powered generation facilities. 

22 ‘‘(f) MITIGATION FEE.—The mitigation fee for each 

23 general permit shall be the amount that the Secretary de24 termines reasonably compensates, through habitat restora25 tion or other appropriate measures, for any incidental take 


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1 of migratory birds that results from the covered commer2 cial activity after the application of any mitigation meas3 ures specified by the Secretary under subsection (b)(2). 

4 Such determination shall be, to the maximum extent prac5 ticable, based on objective and standardized metrics such 

6 as the size or capacity of a facility for which a person 

7 seeks coverage. 

8 ‘‘(g) ENDANGERED SPECIES ACT OF 1973 AND NA9 TIONAL ENVIRONMENTAL POLICY ACT.—Before issuing a 

10 general permit pursuant to subsection (b), the Secretary 

11 shall consult the United States Fish and Wildlife Service 

12 and the National Marine Fisheries Service pursuant to 

13 section 7(a)(2) of the Endangered Species Act of 1973 

14 (16 U.S.C. 1536(a)(2)), and prepare an Environmental 

15 Impact Statement pursuant to section 102(2)(C) of the 

16 National Environmental Policy Act of 1969 (42 U.S.C. 

17 4332(2)(C)). 

18 ‘‘(h) PERSONS SEEKING AUTHORIZATION FOR INCI19 DENTAL TAKE.—Except as provided in subsection (i), a 

20 person is authorized to incidentally take migratory birds 

21 if such person is engaged in a commercial activity with 

22 respect to which a general permit has been issued under 

23 subsection (b) and such person— 

24 ‘‘(1) notifies the Secretary in writing that such 

25 person is accepting coverage under such permit; 


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1 ‘‘(2) annually certifies, in writing, to the Sec2 retary that such person is in compliance with this 

3 Act and maintains records demonstrating such com4 pliance; 

5 ‘‘(3) adopts each best management practice or 

6 technology specified by the Secretary under sub7 section (b)(2); 

8 ‘‘(4) pays the mitigation fee specified by the 

9 Secretary under subsection (b)(3) at the time such 

10 person notifies the Secretary pursuant to paragraph 

11 (1), and annually thereafter; and 

12 ‘‘(5) pays the permit fee specified by the Sec13 retary under subsection (b)(4) at the time such per14 son notifies the Secretary pursuant to paragraph 

15 (1). 

16 ‘‘(i) VIOLATION OF TERMS OF GENERAL PERMIT.— 

17 The Secretary shall end the coverage of a person under 

18 a general permit if such person does not fulfill the require19 ments to maintain such permit under subsection (h). 

20 ‘‘(j) DURATION OF COVERAGE UNDER A GENERAL

21 PERMIT.—Except as provided in subsection (i), a person 

22 authorized to take migratory birds pursuant to a general 

23 permit shall be subject to the terms of such general permit 

24 for a period of ten years beginning on the date such person 


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1 is first authorized for such take, irrespective of different 

2 terms in a subsequently issued general permit. 

3 ‘‘(k) PLATFORM FOR EFFICIENT CERTIFICATION.— 

4 The Secretary shall establish a web-based platform or 

5 other efficient mechanism for persons to file a certification 

6 and pay the fees required by subsection (h) without requir7 ing individualized review. 

8 ‘‘(l) INTERIM COVERAGE FOR COMMERCIAL ACTIVI9 TIES PROPOSED FOR A GENERAL PERMIT.— 

10 ‘‘(1) COMMERCIAL ACTIVITY WITH A SPECIFIED

11 DEADLINE.—Persons or entities engaged in commer12 cial activities listed in subsection (e)(2) shall, upon 

13 payment of a mitigation fee in an amount deter14 mined under paragraph (3) and submission of a cer15 tification of compliance to the Secretary in accord16 ance with this subsection, be exempt from liability 

17 for incidental take caused by such commercial activi18 ties until the earlier of— 

19 ‘‘(A) the issuance of a general permit cov20 ering such commercial activity under subsection 

21 (b); or 

22 ‘‘(B) with respect to— 

23 ‘‘(i) an activity described in subsection 

24 (e)(2)(A), the date that is 5 years after the 

25 date of enactment of this section; or 


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1 ‘‘(ii) an activity described in sub2 section (e)(2)(B), the date that is 8 years 

3 after the date of enactment of this section. 

4 ‘‘(2) COMMERCIAL ACTIVITY FOR WHICH THE

5 SECRETARY HAS GIVEN NOTICE OF INTENT TO ISSUE

6 A PERMIT.—A person engaged in a commercial ac7 tivity for which the Secretary has given notice in the 

8 Federal Register of intent to issue a general permit 

9 under subsection (b) shall, upon payment of a miti10 gation fee in an amount determined under para11 graph (3) and submission of a certification of com12 pliance to the Secretary in accordance with this sub13 section, be exempt from liability for incidental take 

14 caused by such commercial activities until the earlier 

15 of— 

16 ‘‘(A) the date that is 5 years after the date 

17 of issuance of such notice; or 

18 ‘‘(B) the issuance of such regulation. 

19 ‘‘(3) MITIGATION FEE.—The amount of the 

20 mitigation fee required by paragraph (1) and (2) 

21 shall be the amount the Secretary determines is suf22 ficient to reasonably compensate, through habitat 

23 restoration or other appropriate measures, for any 

24 incidental take of migratory birds that results from 

25 the relevant commercial activity. 


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1 ‘‘(4) CERTIFICATION OF MITIGATION MEAS2 URES.—A person seeking interim coverage under 

3 this subsection shall submit to the Secretary a cer4 tification identifying any measures such person has 

5 taken to minimize incidental take of migratory birds 

6 resulting from the commercial activity for which 

7 such person is seeking interim coverage and commit8 ting to continue such measures for the duration of 

9 the interim coverage. 

10 ‘‘(5) RECKLESS OR GROSSLY NEGLIGENT CON11 DUCT.—The exemption from liability for commercial 

12 activities receiving interim coverage under this sub13 section shall not extend to incidental take that is 

14 caused by conduct that is reckless or grossly neg15 ligent. 

16 ‘‘(m) INDIVIDUAL PERMITS.—The Secretary may 

17 provide a permit on an individual basis to incidentally take 

18 migratory birds to a person engaged in a commercial activ19 ity for which authorizing regulations have not been issued. 

20 Each individual permit shall— 

21 ‘‘(1) identify the commercial activity to which 

22 the permit applies; 

23 ‘‘(2) specify the duration of the permit, not to 

24 exceed 10 years; 


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1 ‘‘(3) specify the amount and nature of inci2 dental take authorized by the permit; 

3 ‘‘(4) specify best management practices or tech4 nologies that the Secretary has determined are prac5 ticable and effective in avoiding or minimizing the 

6 incidental take of migratory birds by such commer7 cial activity; 

8 ‘‘(5) specify a mitigation fee in an amount the 

9 Secretary determines is sufficient to reasonably com10 pensate, through habitat restoration or other appro11 priate measures, for any incidental take of migratory 

12 birds that results from such commercial activity; 

13 ‘‘(6) specify a permit fee, to be paid at the time 

14 such person submits a certification to the Secretary 

15 pursuant to paragraph (7), to offset the cost of de16 veloping and revising such permit and administering 

17 the research program established under subsection 

18 (s); 

19 ‘‘(7) require such person to submit to the Sec20 retary an annual certification demonstrating such 

21 person’s compliance with the terms of the permit; 

22 ‘‘(8) provide for the terms of the permit to be 

23 revised during the duration of such permit if new in24 formation indicates that— 


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1 ‘‘(A) the extent or nature of the incidental 

2 take of migratory birds caused by such commer3 cial activities is significantly different than was 

4 understood at the time such permit was issued; 

5 or 

6 ‘‘(B) new best management practices, tech7 nologies or other measures can significantly re8 duce such impacts and can practicably be 

9 adopted by the applicant; and 

10 ‘‘(9) provide for revocation of the permit if the 

11 applicant fails to comply with the terms of such per12 mit. 

13 ‘‘(n) COMPLIANCE CERTIFICATION.—The Secretary 

14 shall make each certification submitted under this section 

15 publicly available. 

16 ‘‘(o) DE MINIMIS ACTIVITIES.—The Secretary shall 

17 make a rule identifying categories of commercial activities 

18 by standard industrial classification that are exempt from 

19 liability for the killing or taking of migratory birds under 

20 this Act because they do not cumulatively or individually 

21 pose appreciable risks to migratory birds. 

22 ‘‘(p) DEPOSIT OF MITIGATION FEES.—Mitigation 

23 fees paid under this section shall be deposited into the 

24 North American Wetlands Conservation Fund established 

25 under the North American Wetlands Conservation Act (16 


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1 U.S.C. 4401 et seq.), the Neotropical Migratory Bird Con2 servation Fund established by section 9 of the Neotropical 

3 Migratory Bird Conservation Act (16 U.S.C. 6108), or 

4 such other fund or account established by the Secretary 

5 provided that priority for use of such fees shall be given 

6 to mitigating impacts or restoring or enhancing popu7 lations of bird species— 

8 ‘‘(1) affected by the permitted activities; and 

9 ‘‘(2) identified as ‘birds of conservation con10 cern’ under authority of section 13 of the Fish and 

11 Wildlife Conservation Act of 1980 (16 U.S.C. 2912). 

12 ‘‘(q) AUTHORIZATION OF APPROPRIATIONS.—There 

13 is authorized to be appropriated $10,000,000 for each fis14 cal year beginning after the date of the enactment of this 

15 section to carry out this section. 

16 ‘‘(r) REPORT TO CONGRESS.—Not later than 5 years 

17 after the date of enactment of this section, and at the end 

18 of each 5 year period thereafter, the Secretary shall sub19 mit a report to the Chair and Ranking Member of the 

20 House Natural Resources Committee and to the Chair and 

21 Ranking Member of the Senate Environment and Public 

22 Works Committee on— 

23 ‘‘(1) the conservation status of migratory birds; 


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1 ‘‘(2) the impacts upon migratory birds of com2 mercial activities for which authorizing regulations 

3 have been issued under this section; 

4 ‘‘(3) the effectiveness of best management prac5 tices, technologies, and other measures in reducing 

6 such impacts; and 

7 ‘‘(4) such Secretary’s progress in carrying out 

8 the functions and responsibilities given to the Sec9 retary under this section. 

10 ‘‘(s) RESEARCH PROGRAM.—The Secretary shall es11 tablish and maintain, in consultation with research institu12 tions, institutions of higher education (as such term is de13 fined in section 101(a) of the Higher Education Act of 

14 1965 (20 U.S.C. 1001(a))), wildlife conservation groups, 

15 and representatives of commercial activities regulated 

16 under this section, a research program to— 

17 ‘‘(1) evaluate the effectiveness of best manage18 ment practices and technologies incorporated in reg19 ulations and permits under this section; 

20 ‘‘(2) develop and evaluate new or improved best 

21 management practices and technologies; and 

22 ‘‘(3) evaluate the impacts of commercial activi23 ties regulated under this section on bird populations. 

24 ‘‘SEC. 15. DEFINITIONS. 

25 ‘‘For the purposes of this Act: 


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1 ‘‘(1) INCIDENTAL TAKE.—The terms ‘incidental 

2 take’ and ‘incidentally take’ means the killing or 

3 taking of migratory birds that directly and 

4 foreseeably results from, but is not the purpose of, 

5 a commercial activity. 

6 ‘‘(2) COMMERCIAL ACTIVITY.—The term ‘com7 mercial activity’ means—— 

8 ‘‘(A) the conduct of any aspect of a busi9 ness, concession, or service in order to provide 

10 goods or services to any person for compensa11 tion, including manufacturing, distributing, 

12 transporting, and marketing goods and services; 

13 and 

14 ‘‘(B) activities of Federal, State, or local 

15 governments related to the management or ad16 ministration of government property or pro17 grams. 

18 ‘‘(3) BEST MANAGEMENT PRACTICES.—The 

19 term ‘best management practices’ means operational 

20 practices, siting, and other guidelines prescribed by 

21 the Secretary to avoid or minimize the incidental 

22 take of migratory birds. 

23 ‘‘(4) SECRETARY.—The term ‘Secretary’ means 

24 the Secretary of the Interior acting through the DiVerDate Sep 11 2014 23:45 Jan 10, 2020 Jkt 099200 PO 00000 Frm 00015 Fmt 6652 Sfmt 6201 E:\BILLS\H5552.IH H5552

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1 rector of the United States Fish and Wildlife Serv2 ice.’’. 

3 (2) CONFORMING AMENDMENTS.—The Migra4 tory Bird Treaty Act is amended— 

5 (A) in section 3, by striking ‘‘of Agri6 culture’’; 

7 (B) in section 5— 

8 (i) by striking ‘‘of the Interior’’; and 

9 (ii) by striking ‘‘Agriculture author10 ized by the Secretary of Agriculture’’ and 

11 inserting ‘‘Interior authorized by the Sec12 retary’’; 

13 (C) in section 6(d) by striking ‘‘of the In14 terior’’; and 

15 (D) in section 9, by striking ‘‘of Agri16 culture’’. 

17 (c) PENALTIES.—Section 6 of the Migratory Bird 

18 Treaty Act (16 U.S.C. 707) is amended by inserting after 

19 subsection (d) the following— 

20 ‘‘(e) Whoever in violation of this Act, shall inciden21 tally take a migratory bird or violate the terms of a permit 

22 or any rule issued by the Secretary to administer section 

23 14 of this Act may be assessed a civil penalty by the Sec24 retary of not more than $10,000 per violation, except that 

25 unpermitted incidental take which is caused by conduct 


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1 that is reckless or grossly negligent shall be subject to the 

2 penalties of subsection (a). The Secretary is authorized 

3 to commence a civil action for appropriate relief, including 

4 a permanent or temporary injunction, for any violation of 

5 the terms of a permit or regulation issued under such sec6 tion.’’. 

Æ 


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