Final environmental review of rule limiting MBTA published

[Laura Bies]

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The Trump administration has released the final environmental impact statement (EIS) assessing its proposed rule limiting the reach of the Migratory Bird Treaty Act to exclude incidental take.  

Traditionally, the MBTA has been interpreted by the Department of the Interior to prohibit both intentional and incidental take. In 2017, the administration issued a memo changing that interpretation and stating that it would no longer enforce the Act in cases of incidental take. Then, in January, the U.S. Fish and Wildlife Service released a proposed rule, codifying the Solicitor’s opinion. In June, the agency released the draft environmental impact statement assessing the possible effects of the rule change. 

The Ornithological Council submitted comments on both the scoping notice that accompanied the proposed rule and the draft environmental impact statement analyzing the effects of the proposed rule. The OC's comments on the draft EIS concluded that the document was simply insufficient to assess the potential effects of the proposal.  

A recent court decision struck down the memo on which the rule is based. The Trump administration is appealing that decision. A final rule is expected before the end of the administration, although it will likely be challenged in court and could also be reviewed and possibly overturned by the incoming Biden administration. 

More information on the rule-making process can be found here.

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