USFWS Draft Environmental Statement on MBTA incidental take rule published

This news and analysis are provided by the Ornithological Council, a consortium supported by 11 ornithological societies. Join or renew your membership in your ornithological society if you value the services these societies provide to you, including OrnithologyExchange and the Ornithological Council.

Late last week, the U.S. Fish and Wildlife Service published a Draft Environmental Impact Statement (DEIS) analyzing their proposed rule to limit the reach of the Migratory Bird Treaty Act by exempting incidental take (or unintentional killing or harming) of birds.

The Service announced their proposed rule in January, in an attempt to provide more regulatory certainty to public, industries, states, tribes and other stakeholders. This DEIS assesses the possible effects of their proposed rule, as well as two other possible actions - or alternatives - on migratory birds, other environmental resources, and the economy.

According to the DEIS, the Service’s “preferred alternative” will have a likely negative effect on migratory birds, including increased mortality. Industry will see “likely reduced legal and financial costs.” In addition, the implementation of voluntary conservation measures will also likely decrease under the new rule, as there would be no risk of prosecution.

Comments will be accepted on the DEIS until 20 July.  Visit http://www.regulations.gov and search for Docket Number: FWS-HQ-MB-2018-0090, to submit comments.

More information related to this proposed rule, scoping and other associated materials, can be found online at: https://fws.gov/migratorybirds/2020Regulation.php.

Background: Until this administration, the Migratory Bird Treaty Act was interpreted to cover both intentional and unintentional take (harm or killing) of species covered by the Act. The USFWS under this administration developed a policy known as an M-Opinion, which is internal agency policy, stating that the law does not prohibit incidental take of migratory bird species protected under the Act.

The policy was challenged in the federal court and is still pending. One of the key aspects of the legal challenge - that there was no opportunity for public input - would be obviated by the promulgation of this regulation, since under the Administrative Procedure Act, public input is required when a formal regulation is proposed.

USFWS Press Release:

The U.S. Fish and Wildlife Service (Service) has made available a draft Environmental Impact Statement (DEIS) under the National Environmental Policy Act (NEPA). This action is a required next step for the Service in its regulatory undertaking to define the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders.

On February 3, 2020, the Service published a proposed rule clarifying that the scope of the MBTA only extends to conduct intentionally injuring birds. The rule codifies the 2017 Department of the Interior Solicitor’s Office Opinion M-37050, which was a legal determination that restricted the scope of the MBTA to intentional take of migratory birds and concluded that the take of birds resulting from an activity is not prohibited when the underlying purpose of that activity is not to take birds.

The Endangered Species Act and the Bald and Golden Eagle Protection Act, as well as state laws and regulations, are not affected by the Solicitor’s Opinion M-37050 or the proposed regulation. This publication is another step in the public process that the Service will continue to manage throughout the development of the rulemaking process. The public is encouraged to provide input to help ensure that these changes are clear, effective and advance the goal of migratory bird conservation.

“We are making every effort to ensure we are not merely complying with NEPA, but are being open and transparent in our regulatory activities and engaging the public fully,” said Aurelia Skipwith, Director of the U.S. Fish and Wildlife Service.

A federal agency is required under NEPA to consider a reasonable range of alternative actions, including a “no action alternative,” so as to fully review the environmental impacts of a rule. Reasonable alternatives must be economically and technically feasible, display common sense, and must address the purpose and need for the action. In this DEIS, the Service is proposing a no action alternative and two action alternatives.

The draft Environmental Impact Statement will be available on June 5, 2020, opening a 45-day public comment period. Comments must be received on or before July 20, 2020. The DEIS will be available at http://www.regulations.gov, Docket Number: FWS-HQ-MB-2018-0090, and will include details on how to submit your comments.

All the documents related to this draft Environmental Impact Statement and proposed rulemaking and information on how to submit comments is available online at: https://www.fws.gov/regulations/mbta/.

BACKGROUND INFO HERE:

Comments filed by the Ornithological Council on the notice that the USFWS would prepare this draft EIS HERE:

When the Ornithological Council files comments on the DEIS, they will be posted on the OrnithologyExchange homepage.