Endangered Species Law & Policy

On September 4, 2024, the Center for Biological Diversity, along with more than 20 other groups, (collectively, CBD) delivered a petition (Petition) to the U.S. Fish and Wildlife Service (Service) in which CBD requested the Service promulgate regulations establishing a process, set of criteria, and other requirements for permitting “take” of migratory birds as a result of colliding with buildings. Specifically, the Petition requests the Service require permits for new construction of buildings with glass facades or other features that would foreseeably lead to collisions with migratory birds, as well as for existing commercial buildings that have documented collisions.

Whether or not the Migratory Bird Treaty Act (MBTA) prohibits unintentional take of migratory birds has been debated and litigated for many years. However, in a Service Director’s Order dated October 5, 2021, the Service clarified its position that unintentional take of migratory birds violates the MBTA and noted the Service will prioritize enforcement of the MBTA’s strict liability provisions for circumstances in which take of migratory birds was foreseeable and practices to avoid or minimize take were not utilized.