New York State
Environmental Technical Working Group
FAQ: Regulatory Context and Requirements
What federal environmental laws and international agreements protect birds?
The National Environmental Policy Act (1969), the Migratory Bird Treaty Act (1918), and the Endangered Species Act (1973) are the primary federal laws protecting birds in the context of U.S. offshore wind development. These laws and their implementing regulations lead to protections for birds by prohibiting physical injury, disturbance, transport, capture, and trade of certain species (i.e., “take“), safeguarding key habitats, and establishing mandatory procedures for assessing and reducing potential effects to birds and other wildlife from human activities. The U.S. is also party to a suite of international agreements, like the North American Bird Conservation Initiative (NABCI 1999), which promote international cooperation to protect migratory bird species and/or their critical habitats. However, these agreements are not legally enforceable, nor are they explicitly considered in the U.S. offshore wind regulatory context. For more detailed information and scientific citations, please see the full FAQ document linked below.
What does "take" mean for birds?
“Take“ is a legal concept used in federal wildlife protection laws to describe actions that injure, kill, or otherwise negatively impact protected species, including birds. The Endangered Species Act (ESA) defines take as “to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.” The Migratory Bird Treaty Act (MBTA) defines take of migratory birds as “to pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to purchase, purchase…transport or cause to be transported.” Federal entities must assess whether their own activities, or those of developers, could result in take under the ESA. Developers must work with federal agencies to acquire authorizations if needed, and implement monitoring and measures to avoid, reduce, and offset potential impacts to protected species. Though not required, developers are encouraged to coordinate with the U.S. Fish and Wildlife Service to identify and minimize risks to migratory birds under the MBTA. For more detailed information and scientific citations, please see the full FAQ document linked below.
Photo credits: Julia Gulka