With the 2026 General Assembly in its final week, lawmakers are considering migratory bird protections that could impact land development, construction, and existing buildings.
Committee amendments to an endangered species bill would significantly expand Maryland’s regulation of migratory birds by adding a prohibition on the “incidental take” of birds protected under the federal Migratory Bird Treaty Act (MBTA). While well‑intended, this provision would create substantial new regulatory risk for routine, permitted land development, construction, and building operations across the state.
Under the amended version of SB 431/HB 578, developers, property owners, and operators could face strict liability if lawful activities on their properties unintentionally injure or kill a migratory bird or alter its habitat, even when no threatened or endangered species are involved. Permitted activities that could potentially trigger violations include land clearing, grading, tree removal, or pruning, building construction façade design with certain types of glass, exterior lighting, and landscaping decisions.
Unlike other environmental programs, compliance with existing state or local permits would not be a defense. Following best management practices would offer no legal safe harbor. These considerations are left to regulations that would be developed by the Maryland Department of Natural Resources.
As written, the legislation would apply not only to new development, but also to existing buildings, creating ongoing and uncertain compliance exposure.
Although not specified in the bill, mitigation measures associated with proposals in other parts of the country include bird‑friendly glass, lighting restrictions, landscaping setbacks, seasonal construction limits, façade monitoring, and retrofits. Protective measures could alter building design, reduce density and, in bird‑concentrated areas, discourage construction of taller or reflective structures.
The strict liability created by the amended bills goes beyond federal regulations and practice. Even under the Biden Administration’s interpretation of the MBTA, federal regulators have relied on limited and discretionary enforcement guided by case law. They primarily targeted discrete industrial hazards — not land development, construction, or ordinary building operations. Importantly, the federal government has never adopted a permitting program authorizing incidental take for buildings or land use.
The Maryland bills would also import the Endangered Species Act (ESA) definition of “harm,” which includes habitat modification, into the proposed migratory bird law. Federal courts have repeatedly rejected applying MBTA liability to land use change or habitat alteration, distinguishing migratory bird protections from ESA‑style habitat regulation.
Maryland sits squarely in the Atlantic Flyway, with 300 to 350 migratory bird species passing through the state each year. On peak migration days, more than a million birds may cross Maryland in a single night. The geographic scope of potential “protected habitat” could significantly increase exposure for development, redevelopment, and infrastructure projects statewide.
NAIOP Maryland is urging lawmakers to remove the incidental take amendment or restore balance and clarity to the legislation by adopting a broader set of changes that would make the Maryland bills consistent with the federal framework for wildlife protection. These decisions will be made over the last seven days of the 2026 General Assembly session.