Migratory Bird Protection Act of 2025
- Sponsor
- Rep. Huffman, Jared [D-CA-2]
- Committees
- Natural Resources Committee (primary)
- Last action
- May 5, 2025
Bottom line
The bill codifies the inclusion of incidental take under the MBTA, establishing a federal permitting and enforcement system to manage unintentional harm to migratory birds from various industrial and commercial activities.
What it actually does
This bill amends the Migratory Bird Treaty Act (MBTA) to explicitly affirm that the prohibition on taking or killing migratory birds includes "incidental take," which refers to unintentional but foreseeable harm. It directs the U.S. Fish and Wildlife Service (USFWS) to establish a new regulatory framework for authorizing such incidental take, including issuing general permits, and establishes civil penalties for unauthorized incidental take. The bill also creates a Migratory Bird Recovery Fund, authorizes annual appropriations, and mandates a research program and regular reports to Congress.
Proponents argue
Supporters argue this bill restores crucial protections for migratory birds that were weakened by previous administrative actions and court interpretations, ensuring that industries are held accountable for unintentional harm. They contend that a clear, consistent permitting framework will provide regulatory certainty for businesses while generating funds for bird conservation and research, ultimately leading to better outcomes for bird populations.
Opponents contend
Opponents might argue that explicitly including incidental take under the MBTA places an undue regulatory burden on various industries, potentially stifling economic activity and leading to excessive fines for unavoidable actions. They may contend that the previous interpretations provided necessary flexibility and that a broad application of incidental take liability could be overly punitive without clear, practical mitigation strategies.
The bill is concise and relatively easy to read, allowing an informed reader to grasp its core provisions within the time given.
Section 2(a)(5), adding new Section 14(a) to the MBTA.
Codification of Incidental Take and Regulatory Mandate
This provision explicitly states that it is a violation of the Migratory Bird Treaty Act to unintentionally harm or kill any migratory bird, or its parts, nest, or eggs, unless specifically authorized by the Secretary of the Interior. It directs the Secretary to create new regulations and a permitting system, including general permits, to authorize such incidental take. Until these new industry-specific regulations are finalized, the existing "Director's Order No.: 225" will remain in effect for enforcement.
Supporters argue
Supporters argue this provision provides much-needed legal clarity and consistency, ensuring that the MBTA's protections extend to unintentional but foreseeable harm, which is a significant cause of bird mortality. They believe it creates a predictable framework for industries while incentivizing practices that minimize harm to bird populations.
Critics contend
Critics may argue that this provision creates an overly broad and potentially burdensome regulatory regime for industries, requiring permits for activities that might have minimal or unavoidable impacts. They might contend it could lead to increased compliance costs and legal uncertainty for businesses.
Tradeoffs
This provision balances the desire for stronger bird conservation with the need for regulatory predictability and avoiding undue burdens on economic activities. It aims to provide a clear legal standard while allowing for authorized incidental take under specific conditions.
Section 2(a)(4), adding new Section 6(e) to the MBTA.
Establishment of Civil Penalties for Incidental Take Violations
This section establishes civil penalties for any person or entity that incidentally takes a migratory bird without the required authorization or in violation of the terms of an issued permit or regulation. The Secretary of the Interior can assess a civil penalty of up to $10,000 per violation. However, if the unpermitted incidental take is a result of reckless or grossly negligent conduct, the violator would be subject to the higher penalties already outlined in subsection (a) of section 6, which typically include criminal penalties.
Section 2(a)(5), adding new Sections 14(b) and 14(c) to the MBTA.
Creation of Dedicated Funding for Bird Conservation
This provision authorizes the Secretary of the Interior to collect fees from entities seeking authorization for incidental take. These fees are intended to cover the administrative costs of the permit program and to fund conservation efforts for bird species affected by authorized activities or those identified as birds of conservation concern. All collected fees, along with civil penalties, appropriations, and donations, will be deposited into a newly established "Migratory Bird Recovery Fund" in the Treasury, which will be managed by the Secretary.
Section 2(a)(5), adding new Sections 14(d) and 14(f) to the MBTA.
Federal Funding and Scientific Research Mandate
This section authorizes an appropriation of $10,000,000 for each fiscal year to support the implementation of the new incidental take provisions. Additionally, it directs the Secretary to establish and maintain a comprehensive research program. This program, which can be carried out directly or through contracts and agreements, will involve consultation with research institutions, universities, wildlife conservation groups, and regulated industries. Its purpose is to monitor bird populations, understand environmental stressors, identify ways to reduce negative impacts, and develop and validate mitigation measures for bird conservation.
The bill explicitly states that "Before the Secretary promulgates regulations for an industry, the Secretary shall continue to enforce the document titled `Director's Order No.: 225` (published October 5, 2021)."
Section 2(a)(5), adding new Section 14(a) to the MBTA.
Why it matters:This is standard legislative practice to ensure continuity of policy during a transition period, preventing a regulatory vacuum. It's not evasive but requires external knowledge to understand its full implications.
Case for: Supporters argue this ensures that protections against incidental take remain in place and are actively enforced while the USFWS develops comprehensive new regulations, preventing a lapse in accountability for bird mortality.
Case against: Critics might argue that relying on an administrative order, even temporarily, maintains a level of regulatory uncertainty for industries until formal regulations are in place, potentially leading to inconsistent enforcement or legal challenges.
Estimated impact: Maintains the current administrative policy on incidental take enforcement for an unspecified period until new regulations are finalized, affecting all industries potentially causing incidental take.
The bill defines "Secretary" as "the Secretary of the Interior, acting through the Director of the United States Fish and Wildlife Service." This clarifies the responsible authority for implementing the Act, especially after earlier provisions strike "of Agriculture" and "of the Interior" generally, then re-insert "of the Interior" in a specific enforcement section.
Section 2(a)(5), adding new Section 15(2) to the MBTA, in conjunction with Section 2(a)(1) and (2).
Why it matters:This is standard legislative drafting to ensure consistency and clarity across the amended statute. It's not evasive but requires reading the entire bill to understand the full context.
Case for: Supporters argue this ensures clear lines of authority and responsibility for the administration and enforcement of the MBTA, preventing ambiguity about which department or official is in charge.
Case against: No specific opposition is typically raised against such clarifying definitions, as they are generally considered technical improvements to statutory language.
Estimated impact: Ensures that the U.S. Fish and Wildlife Service, under the Secretary of the Interior, remains the primary federal entity responsible for migratory bird protection.