Migratory Bird Protection Act of 2021

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. Short title This Act may be cited as the Migratory Bird Protection Act of 2021 2. Amendments to the Migratory Bird Treaty Act (a) Incidental take The Migratory Bird Treaty Act ( 16 U.S.C. 703 et seq. incidentally take, attempt to take, (b) Commercial Activity (1) The Migratory Bird Treaty Act ( 16 U.S.C. 703 et seq. 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 (r). (c) Revision of general permits The Secretary shall revise a general permit issued under subsection (b) (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) (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) (g) Endangered Species Act of 1973 and National Environmental Policy Act Before issuing a general permit pursuant to subsection (b) 16 U.S.C. 1536(a)(2) 42 U.S.C. 4332(2)(C) (h) Persons seeking authorization for incidental take Except as provided in subsection (i) subsection (b) (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) (5) pays the permit fee specified by the Secretary under subsection (b)(4) (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) (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) (l) 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) subsection (r) (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. (m) Compliance certification The Secretary shall make each certification submitted under this section publicly available. (n) 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. (o) 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. 16 U.S.C. 6108 (1) affected by the permitted activities; and (2) identified as birds of conservation concern 16 U.S.C. 2912 (p) 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. (q) 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) the Secretary’s progress in carrying out the functions and responsibilities given to the Secretary under this section. (r) 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) (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. 15. Definitions For the purposes of this Act: (1) Incidental take The terms incidental take incidentally take (2) Commercial activity The term commercial activity (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 (4) Secretary The term Secretary . (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 (ii) by striking Agriculture authorized by the Secretary of Agriculture Interior authorized by the Secretary (C) in section 6(d) by striking of the Interior (D) in section 9, by striking of Agriculture (c) Penalties Section 6 of the Migratory Bird Treaty Act ( 16 U.S.C. 707 (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. .

Summary: Migratory Bird Protection Act of 2021 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 U.S. Fish and Wildlife Service (USFWS) 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 USFWS 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.