Ornithological Council files comments re: proposed MBTA incidental take rule

[Fern Davies]

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The comments (attached here) filed by the Ornithological Council pertain to the NEPA Scoping notice and not the actual proposed regulation. That proposed regulation comprises policy only; it does not entail any scientific information or analysis. As an organization representing scientific societies, the Ornithological Council focuses on the scientific components of matters involving government or private decisions that affect wild birds. Therefore, the Ornithological Council opted instead to comment on the environmental analysis mandated under the National Environmental Policy Act (NEPA). The "scoping notice" is a request by the agency to the public to identify issues that should be covered. The comments submitted by the Ornithological Council elucidate the scientific basis for an objection to the adequacy of the environmental assessment. The Ornithological Council, as a consortium of scientific societies, can explain how impacts on wild populations are assessed.When the inevitable lawsuit(s) challenging the adequacy of the environmental impact statement done by the USFWS are filed, any judge should be able to use these comments as a blueprint to determine if the environmental impact statement was adequate. As should be evident from the text of the comments, it is virtually impossible to make an adequate assessment of the impacts because for many species, the data simply don't exist or are insufficient.

If a court determines that the environmental impact statement is inadequate, the agency must re-do the assessment, which, in this case, could easily take years.

Background: What is a NEPA scoping notice and why does it matter? NEPA - the National Environmental Policy Act - requires agencies to assess the impact of their proposed decisions and actions. They don't actually have to DO anything different as a result of the analysis. It is often called a toothless law for that reason. But the hope was that formally assessing the potential impacts and considering the alternatives (required only if it is determined that there is likely to be a significant impact) would cause agencies to avoid really bad decisions and do what they could to mitigate.

And that NEPA process starts with what is called a SCOPING NOTICE. The agency goes out to the public and asks "what should we consider in making this assessment?"

 

 

 

OCComments-MBTA-IT-NEPAScoping-2020-Submitted.pdf