A surprise inspection of a CITCO open-air oil/water separator resulted in convictions for Clean Air Act and Migratory Bird Treaty Act violations. This case has been in the courts since at least 2007 and a Texas circuit court just tossed out the convictions, the appeals and the fines.
http://www.lexology.com/library/detail.aspx?g=f70dac63-e664-4103-a0fe-201c53e04755Among the bird remains discovered were five White Pelicans, twenty (regular old) Ducks, two Northern Shoveler Ducks, four Double Crested Cormorants, one Lesser Scaup Duck, one Black-Bellied Whistling Tree Duck, one Blue-Winged Teal Duck, and one Fulvous Whistling Tree Duck. In some circuit courts, this "take" is deemed a crime because it's a unlawful killing regardless of the cause. But in this court and others, it's not considered a "take" because it wasn't intentional, like hunting. IMO, this is a willfully ignorant interpretation of the Act and would decriminalize all such killings by a lawful commercial operation, like a wind farm.
The "take" issue may eventually have to be resolved by the Supreme Court, which could be years and millions of bird deaths away. The USFWS is currently working on regulations for "take permits" for a variety of commercial operations (oil retention ponds), possibly including wind turbines and electric distribution and transmission lines. Take permits allow a very limited number of unintentional killings but require reporting those takings and then mitigating the causes to prevent recurrence. If the permits become law, the MBTA will finally have teeth and this nonsense will be stopped.
