What Is Migratory Bird Treaty Act Compliance?
The Migratory Bird Treaty Act makes it illegal to kill, harm, or disturb migratory birds, their nests, or their eggs — with no permit available for incidental take in most cases. For construction, compliance means: survey for active nests before work, establish buffers around them, and schedule vegetation clearing outside nesting season. A single destroyed active nest is a federal violation; the compliance program is simple but non-negotiable.
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What the MBTA prohibits
The Act covers 1,000+ native bird species — essentially every native bird except a few game and non-native species. It prohibits taking (killing, capturing) birds, nests, and eggs, including inactive nests of some species (eagles have additional protections under the Bald and Golden Eagle Protection Act). Unlike the ESA, there is generally no incidental-take permit — the compliance strategy is avoidance, not permitting.
Construction compliance
Pre-construction nesting surveys by a qualified biologist during breeding season (typically February-August, varying by region and species), no-disturbance buffers around active nests (50-500 feet depending on species and activity), and a biological monitor during clearing in sensitive areas. Schedule vegetation removal for the non-breeding season where possible — the cheapest compliance is timing. Document everything: survey reports, buffer maps, monitor logs.
Schedule and risk
An active nest discovery stops work in the buffer until the young fledge — weeks to months of delay in the worst case. The risk concentrates in the breeding season; winter clearing avoids it entirely. For linear projects (roads, utilities), the survey and monitoring program runs the project's length. MBTA violations carry criminal penalties — the compliance cost is trivial next to the enforcement risk.
The bottom line
MBTA compliance = pre-construction nesting surveys, buffers around active nests, and clearing outside breeding season. No incidental-take permit exists — avoid, document, and schedule around nesting season.
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