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On 7 January 2021, the Trump administration finalized a new rule that limits the scope of the Migratory Bird Treaty Act (MBTA or the Act).
1 Under the new rule (which President Biden has already directed the Department of the Interior (Interior) to review), the Fish and Wildlife Service (the FWS) has declared that the MBTA covers only intentional, and not incidental, take of protected birds, memorializing a memorandum that was rejected by a federal court last August.
2 The new rule if it withstands legal challenges and efforts by the Biden administration and Congress to reverse it significantly reduces the activities that would result in liability under the Act, and as a result, reduces the risks businesses and developers face.