I 

114TH CONGRESS 

1ST SESSION H. R. 493 

To update avian protection laws in order to support an all-of-the-above 

domestic energy strategy, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

JANUARY 22, 2015 

Mr. DUNCAN of South Carolina (for himself, Mr. JONES, Mrs. BLACK, Mr. 

JOHNSON of Ohio, Mr. BUCSHON, and Mr. MULVANEY) introduced the 

following bill; which was referred to the Committee on Natural Resources 

A BILL 

To update avian protection laws in order to support an 

all-of-the-above domestic energy strategy, 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, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Clarification of Legal 

5 Enforcement Against Non-criminal Energy Producers Act 

6 of 2015’’ or the ‘‘CLEAN Energy Producers Act of 

7 2015’’. 

8 SEC. 2. FINDINGS. 

9 The Congress finds the following: 


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1 (1) The Migratory Bird Treaty Act (MBTA) 

2 was enacted in 1918 to protect the migratory bird 

3 population from overhunting and poaching and has 

4 not been updated to reflect the societal changes that 

5 have occurred in our Nation over the last 95 years. 

6 (2) Anyone involved in an otherwise legal activ7 ity may be subject to criminal liability for the unin8 tentional death of any one of over 1,000 species of 

9 birds protected under the MBTA. 

10 (3) The Act of June 8, 1940 (chapter 278; 16 

11 U.S.C. 668), popularly known as the Bald and Gold12 en Eagle Protection Act (BGEPA), was first enacted 

13 in 1940 to protect the dwindling population of bald 

14 eagles and amended in 1962 to cover golden eagles 

15 in order to provide additional protective measures 

16 for bald eagles and for other purposes. 

17 (4) The BGEPA includes a program for the 

18 Federal Government to issue permits in order to 

19 protect companies from legal liability if eagles are 

20 unintentionally injured or killed, but the Federal 

21 Government has failed to issue permits issued under 

22 the program. 

23 (5) Among other goals, the BGEPA’s permit 

24 program was established to assure the protection of 

25 interests fundamental to the basic operation of our 


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1 society like agriculture and energy infrastructure de2 velopment and maintenance. 

3 (6) The BGEPA was successful in helping the 

4 overall eagle population recover, leading to bald ea5 gles being removed from the list of threatened and 

6 endangered species in 2007. 

7 (7) There are differing legal and judicial inter8 pretations regarding the scope of criminality in those 

9 statutes. 

10 (8) It appears criminal prosecution under those 

11 statutes has been subjective, selective, and not ap12 plied uniformly and fairly across all sectors of soci13 ety. 

14 (9) Those statutes need to be updated to reflect 

15 significant changes in our Nation over the last half 

16 century, including the urbanization of rural areas 

17 and how domestic energy is produced, transmitted, 

18 and distributed. 

19 (10) Protecting the avian population and its 

20 habitat is important. 

21 (11) Federal enforcement actions should be ap22 propriate, uniform, nondiscriminatory, and just. 

23 SEC. 3. PERMITS FOR INCIDENTAL TAKE. 

24 Section 1 of the Act of June 8, 1940 (chapter 278; 

25 16 U.S.C. 668), popularly known as the Bald and Golden 


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1 Eagle Protection Act, is amended by adding at the end 

2 the following: 

3 ‘‘(d) PERMITS FOR INCIDENTAL TAKE.—Upon sub4 mission of a substantially completed application, the Sec5 retary shall issue or deny an eagle take permit for no less 

6 than 30 years under section 22.26 of title 50, Code of 

7 Federal Regulations, that authorizes taking of any bald 

8 eagle or golden eagle that is incidental to, but not the pur9 pose of, an otherwise lawful activity. Failure to issue or 

10 deny such a permit within a reasonable time (which shall 

11 not exceed one year) is deemed issuance of such permit, 

12 and the applicant shall not be subject to liability for any 

13 incidental take of a bald eagle or golden eagle that is in 

14 conformity with the information submitted to the Sec15 retary as part of the application for the permit.’’. 

16 SEC. 4. MIGRATORY BIRD TREATY ACT. 

17 Section 6(a) of the Migratory Bird Treaty Act (16 

18 U.S.C. 707(a)) is amended— 

19 (1) by striking ‘‘shall’’ the first and second 

20 place it appears and inserting ‘‘shall with intent 

21 knowingly’’; and 

22 (2) by adding at the end the following: ‘‘For the 

23 purposes of this subsection, ‘with intent knowingly’ 

24 does not include any taking, killing, or other harm 

25 to any migratory bird that is accidental or incidental 


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1 to the presence or operation of an otherwise lawful 

2 activity.’’. 

Æ 


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