Migratory Bird Protection Act of 2020

IB Union Calendar No. 386 116TH CONGRESS 2D SESSION H. R. 5552 [Report No. 116–482] 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. BLU- MENAUER, 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 Com- mittee on Natural Resources SEPTEMBER 1, 2020 Additional sponsors: Mrs. DAVIS of California, Mr. COHEN, Mr. MORELLE, Mr. CONNOLLY, Mr. QUIGLEY, Mr. HORSFORD, Ms. TITUS, Mr. CART- WRIGHT, Mr. MCGOVERN, Ms. LEE of California, Ms. WILD, Ms. DELAURO, Mr. BRENDAN F. BOYLE of Pennsylvania, Mrs. BEATTY, Ms. SCHAKOWSKY, Mr. KATKO, Mr. PAPPAS, Ms. BARRAGA´N, Ms. PINGREE, Mr. PRICE of North Carolina, Mr. ESPAILLAT, Ms. SCANLON, Mr. HAS- TINGS, Mr. POCAN, Mr. COOPER, Mr. SABLAN, Ms. STEVENS, Mrs. HAYES, Mr. NEGUSE, Ms. LOFGREN, Mr. SCOTT of Virginia, Mr. KIM, Ms. JACKSON LEE, Mr. THOMPSON of California, Mr. LARSEN of Wash- ington, Mr. KHANNA, Mr. LEVIN of Michigan, Ms. BLUNT ROCHESTER, Ms. DELBENE, Mr. PALLONE, Mr. KIND, Mr. SCHNEIDER, Mr. SAR- BANES, Ms. ESHOO, Mr. FITZPATRICK, Mr. COX of California, Mr. TAKANO, Mr. DESAULNIER, Mr. SOTO, Ms. DEGETTE, Mr. CICILLINE, Ms. ROYBAL-ALLARD, Mr. SUOZZI, Mrs. WATSON COLEMAN, Mrs. KIRK- PATRICK, Mr. KILDEE, Ms. PORTER, Mrs. CAROLYN B. MALONEY of New York, Mr. POSEY, Ms. MUCARSEL-POWELL, Mr. GARCI´A of Illinois, Mr. VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 2 •HR 5552 RH CISNEROS, Mr. KILMER, Mr. JOHNSON of Georgia, Ms. BONAMICI, Ms. WASSERMAN SCHULTZ, Ms. HOULAHAN, Mr. CASTEN of Illinois, Mr. VARGAS, Ms. SPEIER, Mr. GOMEZ, Mr. HARDER of California, Mr. STAN- TON, Ms. JAYAPAL, Mr. GOTTHEIMER, Mr. PASCRELL, and Mr. O’HALLERAN SEPTEMBER 1, 2020 Reported with an amendment; committed to the Committee of the Whole House on the State of the Union and ordered to be printed [Strike out all after the enacting clause and insert the part printed in italic] [For text of introduced bill, see copy of bill as introduced on January 8, 2020] A BILL To amend the Migratory Bird Treaty Act to affirm that the Migratory Bird Treaty Act’s prohibition on the unau- thorized take or killing of migratory birds includes inci- dental take by commercial activities, and to direct the United States Fish and Wildlife Service to regulate such incidental take, and for other purposes. VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6652 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 3 •HR 5552 RH Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Migratory Bird Protec- 4 tion Act of 2020’’. 5 SEC. 2. AMENDMENTS TO THE MIGRATORY BIRD TREATY 6 ACT. 7 (a) INCIDENTAL TAKE.—The Migratory Bird Treaty 8 Act (16 U.S.C. 703 et seq.) is amended in section 2(a), by 9 inserting ‘‘incidentally take,’’ before ‘‘attempt to 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 a 17 result of a commercial activity except as authorized by this 18 section and regulations issued pursuant to this section. 19 ‘‘(b) GENERAL PERMITS.—The Secretary shall regu- 20 late the incidental take of migratory birds as a result of 21 commercial activity by issuing general permits for par- 22 ticular industries, as identified by standard industrial clas- 23 sification, that the Secretary determines have broadly simi- 24 lar levels of incidental take and for which generally appli- 25 VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 4 •HR 5552 RH cable best management practices or technologies exist that 1 can effectively avoid or minimize such impacts. With re- 2 spect to each such industry, the Secretary shall, based on 3 the best available science— 4 ‘‘(1) identify the commercial activity covered by 5 the regulation; 6 ‘‘(2) specify appropriate mitigation to be imple- 7 mented by a person seeking coverage under a general 8 permit, including adoption of best management prac- 9 tices or technologies that the Secretary has determined 10 are practicable and effective in avoiding or mini- 11 mizing the incidental take of migratory birds as a re- 12 sult of such commercial activity; 13 ‘‘(3) specify a mitigation fee in an amount the 14 Secretary determines is sufficient to reasonably com- 15 pensate, through habitat restoration or other appro- 16 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 of 20 developing and revising such regulations and admin- 21 istering the research program established under sub- 22 section (s). 23 ‘‘(c) REVISION OF GENERAL PERMITS.—The Secretary 24 shall revise a general permit issued under subsection (b) 25 VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 5 •HR 5552 RH if such Secretary determines that revision is appropriate, 1 or if— 2 ‘‘(1) the extent or nature of the incidental take 3 of migratory birds caused by the commercial activity 4 covered by the regulation is significantly different 5 than the extent or nature of such incidental take that 6 formed the basis of the regulation; 7 ‘‘(2) new best management practices or tech- 8 nologies can significantly reduce such incidental take 9 and can practicably be adopted by the persons en- 10 gaged in such commercial activity; or 11 ‘‘(3) such permit has not been revised in the 10 12 year period beginning on the date such permit was 13 issued. 14 ‘‘(d) CONSULTATION.—The Secretary shall, before 15 issuing a general permit under subsection (b), consult with 16 persons engaged in the industry to which such permit would 17 apply and other interested stakeholders and afford such per- 18 sons an opportunity to submit relevant information. 19 ‘‘(e) PRIORITY GENERAL PERMITS.— 20 ‘‘(1) IN GENERAL.—The Secretary shall give pri- 21 ority to development of general permits with respect 22 to industries for which substantial information exists 23 regarding the extent and nature of incidental take of 24 migratory birds caused by such industry and the effi- 25 VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 6 •HR 5552 RH cacy and practicability of best management practices 1 and technologies in reducing such incidental take. 2 ‘‘(2) COMMERCIAL ACTIVITIES WITH SPECIFIC 3 DEADLINES.—The Secretary shall issue general per- 4 mits under subsection (b)— 5 ‘‘(A) not later than 5 years after the date 6 of enactment of this Act with respect to— 7 ‘‘(i) oil, gas, and wastewater disposal 8 pits; 9 ‘‘(ii) methane and other gas burner 10 pipes; 11 ‘‘(iii) communication towers; 12 ‘‘(iv) electric transmission and dis- 13 tribution lines; and 14 ‘‘(v) wind power generation facilities; 15 and 16 ‘‘(B) not later than 8 years after the date 17 of enactment for this Act with respect to solar 18 powered generation facilities. 19 ‘‘(f) MITIGATION FEE.—The mitigation fee for each 20 general permit shall be the amount that the Secretary deter- 21 mines reasonably compensates, through habitat restoration 22 or other appropriate measures, for any incidental take of 23 migratory birds that results from the covered commercial 24 activity after the application of any mitigation measures 25 VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 7 •HR 5552 RH specified by the Secretary under subsection (b)(2). Such de- 1 termination shall be, to the maximum extent practicable, 2 based on objective and standardized metrics such as the size 3 or capacity of a facility for which a person seeks coverage. 4 ‘‘(g) ENDANGERED SPECIES ACT OF 1973 AND NA- 5 TIONAL ENVIRONMENTAL POLICY ACT.—Before issuing a 6 general permit pursuant to subsection (b), the Secretary 7 shall consult the United States Fish and Wildlife Service 8 and the National Marine Fisheries Service pursuant to sec- 9 tion 7(a)(2) of the Endangered Species Act of 1973 (16 10 U.S.C. 1536(a)(2)), and prepare an Environmental Impact 11 Statement pursuant to section 102(2)(C) of the National 12 Environmental Policy Act of 1969 (42 U.S.C. 4332(2)(C)). 13 ‘‘(h) PERSONS SEEKING AUTHORIZATION FOR INCI- 14 DENTAL TAKE.—Except as provided in subsection (i), a 15 person is authorized to incidentally take migratory birds 16 if such person is engaged in a commercial activity with 17 respect to which a general permit has been issued under 18 subsection (b) and such person— 19 ‘‘(1) notifies the Secretary in writing that such 20 person is accepting coverage under such permit; 21 ‘‘(2) annually certifies, in writing, to the Sec- 22 retary that such person is in compliance with this Act 23 and maintains records demonstrating such compli- 24 ance; 25 VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 8 •HR 5552 RH ‘‘(3) adopts each best management practice or 1 technology specified by the Secretary under subsection 2 (b)(2); 3 ‘‘(4) pays the mitigation fee specified by the Sec- 4 retary under subsection (b)(3) at the time such person 5 notifies the Secretary pursuant to paragraph (1), and 6 annually thereafter; and 7 ‘‘(5) pays the permit fee specified by the Sec- 8 retary under subsection (b)(4) at the time such person 9 notifies the Secretary pursuant to paragraph (1). 10 ‘‘(i) VIOLATION OF TERMS OF GENERAL PERMIT.— 11 The Secretary shall end the coverage of a person under a 12 general permit if such person does not fulfill the require- 13 ments to maintain such permit under subsection (h). 14 ‘‘(j) DURATION OF COVERAGE UNDER A GENERAL 15 PERMIT.—Except as provided in subsection (i), a person 16 authorized to take migratory birds pursuant to a general 17 permit shall be subject to the terms of such general permit 18 for a period of ten years beginning on the date such person 19 is first authorized for such take, irrespective of different 20 terms in a subsequently issued general permit. 21 ‘‘(k) PLATFORM FOR EFFICIENT CERTIFICATION.—The 22 Secretary shall establish a web-based platform or other effi- 23 cient mechanism for persons to file a certification and pay 24 VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 9 •HR 5552 RH the fees required by subsection (h) without requiring indi- 1 vidualized review. 2 ‘‘(l) INTERIM COVERAGE FOR COMMERCIAL ACTIVITIES 3 PROPOSED FOR A GENERAL PERMIT.— 4 ‘‘(1) COMMERCIAL ACTIVITY WITH A SPECIFIED 5 DEADLINE.—Persons or entities engaged in commer- 6 cial activities listed in subsection (e)(2) shall, upon 7 payment of a mitigation fee in an amount deter- 8 mined under paragraph (3) and submission of a cer- 9 tification of compliance to the Secretary in accord- 10 ance with this subsection, be exempt from liability for 11 incidental take caused by such commercial activities 12 until the earlier of— 13 ‘‘(A) the issuance of a general permit cov- 14 ering such commercial activity under subsection 15 (b); or 16 ‘‘(B) with respect to— 17 ‘‘(i) an activity described in subsection 18 (e)(2)(A), the date that is 5 years after the 19 date of enactment of this section; or 20 ‘‘(ii) an activity described in sub- 21 section (e)(2)(B), the date that is 8 years 22 after the date of enactment of this section. 23 ‘‘(2) COMMERCIAL ACTIVITY FOR WHICH THE 24 SECRETARY HAS GIVEN NOTICE OF INTENT TO ISSUE 25 VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 10 •HR 5552 RH A PERMIT.—A person engaged in a commercial activ- 1 ity for which the Secretary has given notice in the 2 Federal Register of intent to issue a general permit 3 under subsection (b) shall, upon payment of a mitiga- 4 tion fee in an amount determined under paragraph 5 (3) and submission of a certification of compliance to 6 the Secretary in accordance with this subsection, be 7 exempt from liability for incidental take caused by 8 such commercial activities until the earlier of— 9 ‘‘(A) the date that is 5 years after the date 10 of issuance of such notice; or 11 ‘‘(B) the issuance of such regulation. 12 ‘‘(3) MITIGATION FEE.—The amount of the miti- 13 gation fee required by paragraph (1) and (2) shall be 14 the amount the Secretary determines is sufficient to 15 reasonably compensate, through habitat restoration or 16 other appropriate measures, for any incidental take of 17 migratory birds that results from the relevant com- 18 mercial activity. 19 ‘‘(4) CERTIFICATION OF MITIGATION MEAS- 20 URES.—A person seeking interim coverage under this 21 subsection shall submit to the Secretary a certifi- 22 cation identifying any measures such person has 23 taken to minimize incidental take of migratory birds 24 resulting from the commercial activity for which such 25 VerDate Sep 11 2014 21:23 Sep 02, 2020 Jkt 099200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6203 E:\BILLS\H5552.RH H5552 pbinns on DSKJLVW7X2PROD with BILLS 11 •HR 5552 RH person is seeking interim coverage and committing to 1 continue such measures for the duration of the in- 2 terim coverage. 3 ‘‘(5) RECKLESS OR GROSSLY NEGLIGENT CON- 4 DUCT.—The exemption from liability for commercial 5 activities receiving interim coverage under this sub- 6 section shall not extend to incidental take that is 7 caused by conduct that is reckless or grossly negligent. 8 ‘‘(m) INDIVIDUAL PERMITS.—The Secretary may pro- 9 vide a permit on an individual basis [Text truncated for display. 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