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Laura Bies

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  1. The U.S. Fish and Wildlife Service released a proposal to reduce the critical habitat designated for the northern spotted owl in Oregon by about 2% or 205,000 acres. Currently, 9.6 million acres are designated as northern spotted owl critical habitat in Oregon, Washington, and California. The change comes as a result of a settlement agreement between USFWS and the lumber industry, which challenged the agency’s 2012 critical habitat designation. The plaintiffs argued that the USFWS had unlawfully designated areas that were not northern spotted owl habitat and that the agency failed to consider the designation’s economic impacts. Earlier this year, the parties in that case reached an agreement requiring the USFWS to propose revisions to the northern spotted owl’s critical habitat by late December. The USFWS is accepting comments on the proposal until Oct. 13. Most of the 205,000 acres that will be removed from critical habitat are managed by the Bureau of Land Management and have been identified for commercial timber harvest under resource management plans. The northern spotted owl was first listed as a threatened species under the Endangered Species Act in 1990. USFWS initially designated 6.9 million acres of critical habitat for the owl in 1992, all on federal lands. The owl’s critical habitat was revised in 2003, 2008 and again in 2012.
  2. This news and analysis are provided by the Ornithological Council, a consortium supported by 10 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. In late 2017, the Department of the Interior’s Office of the Solicitor issued a new interpretation of the Migratory Bird Treaty Act (“the M Opinion”), which stated that the Act would no longer be applied to incidental take. In May 2018, the Natural Resources Defense Council and the National Audubon Society, along with other environmental organizations, filed a lawsuit challenging the M Opinion. Later that year, eight States filed a similar lawsuit. These actions were consolidated into the one, which argued that the new interpretation of the M Opinion was contrary to the MBTA Yesterday, the district court agreed, finding that the M opinion “is contrary to the plain meaning of the MBTA and therefore must be vacated.” It is important to note that this decision only affects the M Opinion and not the proposed rule that Interior is in the process of finalizing. Also, the federal appeals courts remain split over whether incidental take is covered by the MBTA. 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. In January, it released a regulatory proposal to codify that interpretation and in June it released the draft EIS for public comment. Read the Ornithological Council’s comments on the scoping notice and the draft environmental impact statement.
  3. The Ornithological Council is financially supported by our ten member societies and the individual ornithologists who value our work. If the OC’s resources are valuable to you, please consider joining one of our member societies or donating directly at Birdnet.org. Thank you for your support! Your field work this season may have been affected by COVID but at some point we’ll all be able to get back out in the field. Make sure you have the permit info you need to be ready to get out there! The Ornithological Council has updated the information available on its website regarding permits. New information about Endangered Species Act and CITES permits has been posted and the pages for permit requirements for each of the 50 states in the U.S. have been updated. Check it out here!
  4. The following news and analysis are provided by the Ornithological Council, a consortium supported by 10 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. The U.S. Fish and Wildlife Service has released a proposed definition for “habitat” under the Endangered Species Act. The ESA defines “critical habitat” as “(i) the specific areas within the geographical area occupied by the species, at the time it is listed ... on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed ..., upon a determination by the Secretary that such areas are essential for the conservation of the species.” Neither the regulations nor the Act itself define “habitat.” Until now, USFWS has applied the criteria from the definition of ‘‘critical habitat’’ and assumed that any area satisfying that definition was habitat. A recent Supreme Court decision held that an area must first be considered ‘‘habitat’’ in order for it to then meet the definition of ‘‘critical habitat’’ as defined by the Act. The new rule proposes to define “habitat” as “the physical places that individuals of a species depend upon to carry out one or more life processes. Habitat includes areas with existing attributes that have the capacity to support individuals of the species.” The proposal also includes an alternative definition: “the physical places that individuals of a species use to carry out one or more life processes. Habitat includes areas where individuals of the species do not presently exist but have the capacity to support such individuals, only where the necessary attributes to support the species presently exist.” USFWS is soliciting comments on both proposed definitions. Comments are due by September 4 and can be submitted electronically (click on the blue comment button). ******* USFWS PRESS RELEASE U.S. Fish and Wildlife Service and NOAA Fisheries Propose Regulatory Definition of Habitat Under Endangered Species Act: Changes would improve clarity around description of habitat, address Supreme Court ruling July 31, 2020 Contact(s): Brian Hires, 703-358-2191, brian_hires@fws.gov The U.S. Fish and Wildlife Service and the National Marine Fisheries Service have proposed a regulatory definition of the term “habitat” that would be used in the context of critical habitat designations under the Endangered Species Act (ESA). The proposed definition is part of the efforts of the Trump Administration to balance effective, science-based conservation with common-sense policy designed to bring the ESA into the 21st century. “Our proposed definition of habit is intended to add more consistency to how the Service designates critical habitat under ESA,” said Rob Wallace, Assistant Secretary for Fish and Wildlife and Parks. “Improving how we apply this important tool will result in better conservation outcomes and provide more transparency for countless stakeholders such as private landowners, industry, and states.” “The Court’s ruling provides the Trump Administration and Secretary Bernhardt the opportunity to create a new definition that will help ensure that all areas considered for critical habitat first and foremost meet the definition of habitat. We are proposing these changes on behalf of improved conservation and transparency in our processes for designating critical habitat,” said Fish and Wildlife Service Director Aurelia Skipwith. “We value public input, especially on actions that directly impact our many stakeholders which range from industries to private landowners.” Nearly three years ago, the Department of the Interior and the Department of Commerce began considering improvements to the regulations the federal government uses to implement the ESA to make them more efficient and effective. Last year, the Service finalized regulatory changes to section 4 of the ESA dealing with the listing, delisting and critical habitat, and to section 7 consultation processes. Today’s proposed definition of habitat will continue to improve implementation of the ESA and will address a 2018 Supreme Court ruling in a case regarding dusky gopher frog critical habitat (Weyerhaeuser Co. v U.S. FWS) that any area designated as critical habitat must also be habitat for the species. The ESA defines critical habitat and establishes separate criteria depending on whether the area is within or outside the geographical area occupied by the species at the time of listing. It does not define the broader term “habitat,” however, and the Services have not previously defined this term in implementing regulations. Combined with last year’s regulatory reform, these actions will increase the clarity of the ESA, improve partnerships, stimulate more effective conservation on the ground, and improve consistency and predictability around critical habitat determinations. "Protecting, conserving and recovering endangered and threatened marine species and their habitat is a collaborative effort among federal, state, tribal and local officials, as well as non-governmental organizations and private citizens. For more than 45 years, the Endangered Species Act has enabled this collaboration. As such, we encourage our partners and the public to submit comments on this proposed action,” said Chris Oliver, Assistant Administrator, NOAA Fisheries. As defined in the proposed rule, habitat contains food, water, cover or space that a species depends upon to carry out one or more of its life processes. This broad definition includes both occupied and unoccupied critical habitat. The proposed rule was sent to the Federal Register on July 31, 2020, and public comments will be accepted for 30 days upon its publication. The Service will post all comments on http://www.regulations.gov. This generally means the agency will post any personal information provided through the process. The Service is not able to accept email or faxes.
  5. This news and analysis are provided by the Ornithological Council, a consortium supported by 10 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. The Ornithological Council submitted comments on the U.S. Fish and Wildlife Service regarding the draft Environmental Impact Statement that the Service prepared to analyze the effects of their proposal to no longer enforce the Migratory Bird Treaty Act in cases of incidental take. Our comments conclude that the draft EIS is simply insufficient to assess the potential effects of the proposal. The EIS itself is relatively brief - only 69 pages, as opposed to the government-wide average of 586 pages. The analysis of the effects on migratory birds is only a few paragraphs. Understanding the effect of no longer prohibiting incidental take under the MBTA is obviously a huge task, requiring information about all the species protected under the Act. What the Service prepared comes no where close to achieving this. In its comments the OC recommended that the Service abandon this planning effort and begin again with a new document that is subject to peer review and which includes a path forward that involves best practices to prevent incidental take and cooperation between the Service and industry. 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. In January, it released a regulatory proposal to codify that interpretation and in June it released the draft EIS for public comment. OCComments-MBTA-IT-DEIS July 2020 FINAL.pdf
  6. The U.S. House of Representatives passed the Bird-Safe Building Act last week, as part of a larger infrastructure bill. The bipartisan bill is designed to reduce bird mortality by calling for federal buildings to incorporate bird-safe building materials and design features. Some federal building already incorporate bird-friendly design techniques; the Bird-Safe Building Act would require the government to apply similar measures, where practicable, to all new and existing federal buildings The infrastructure bill also included the Recovering America’s Wildlife Act, which would provide about $1.4 billion to state, territorial and tribal wildlife agencies for the conservation of thousands of fish and wildlife species vulnerable to extinction. The infrastructure package now goes to the Senate, which is working on its own infrastructure legislation and therefore unlikely to pass the House version.
  7. AAALAC International, a private accreditation organization, announced that it will adopt the AVMA Guidelines for the Euthanasia of Animals: 2020 Edition as an ‘AAALAC Reference Resource,’ with two clarifications: Clarification #1: These Guidelines were designed for use by members of the veterinary profession who carry out or oversee the euthanasia of animals. Euthanasia for scientific purposes is under the purview of the Institutional Animal Care and Use Committee or Oversight Body (IACUC/OB). In these situations, “The IACUC[/OB] has mandatory veterinary input and considers animal welfare, requirements for postmortem tissue specimens, and interference of euthanasia agents or methods with study results.” Clarification #2: The Guidelines apply to methods of euthanasia which are strictly defined, such that “[w]hile some methods of slaughter and depopulation might meet the criteria for euthanasia identified by the Panel on Euthanasia (POE), others will not and comments in this document are limited to methods used for euthanasia.” With regard to free-ranging wildlife, the Guidelines acknowledge that “... the quickest and most humane means of terminating the life of free-ranging wildlife in a given situation may not always meet all criteria established for euthanasia (i.e., distinguishes between euthanasia and methods that are more accurately characterized as humane killing).” These limitations in application of the guidelines notwithstanding, AAALAC International emphasizes that death of animals for scientific purposes, including the method of death, is under the purview of the Institutional Animal Care and Use Committee or Oversight Body (IACUC/OB). The OC was encouraged to see the second clarification and has contacted the Council to urge it to consider affirmatively accepting rapid cardiac compression, in addition to the more general statement in the clarification. Background: The AVMA (American Veterinary Medical Association) earlier this year released the 2020 revision of its euthanasia guidelines, in which they failed to re-classify rapid cardiac compression. The OC has long argued, to the AVMA and to other organizations and group which rely on the AVMA guidelines, that there is sufficient scientific evidence to support the use of rapid cardiac compression. The OC will continue to make sure other organizations are aware of the scientific justification for rapid cardiac compression.
  8. 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. The USDA has reached an agreement with two organizations who sued over APHIS’s failure to issue animal welfare regulations under the Animal Welfare Act for birds not bred for use in research. That agreement, which was signed by the U.S. District Court judge in early June, calls for the agency to begin a rulemaking process within 90 days. Per the court order, USDA committed to: Ø publishing a notice for listening sessions by the end of August, to take place within one year of the date of the order Ø publishing a notice of proposed rulemaking within 18 months of publication of the notice of listening sessions Ø publishing a final rule within a year of the publication of the notice of proposed rulemaking Ø submitting reports on their progress in promulgating the regulation every 90 days Background: Currently, USDA regulations exempt rats, mice, and birds from the Animal Welfare Regulations. After a lawsuit in 2000, the department agreed to change its regulations to include rats, mice, and birds. Before any regulations were promulgated, a provision in the 2002 Farm Bill codified the exclusion of rats, mice, and birds from AWA regulations. However, a typographical error in the bill means that only birds bred for use in research were excluded from AWA jurisdiction. In 2004, APHIS published an advance notice of public rulemaking, asking for public input about how to regulate the care and use of birds not bred for research. The agency never completed the rulemaking, and their failure to develop a rule led to the lawsuit by the Avian Welfare Coalition and the American Anti-Vivisection Society. The OC filed comments, in response to the 2004 notice of proposed rulemaking, suggested that given the number of wild bird species, the enormous variation among species, and the lack of experience and information pertaining to the keeping of most species in captivity that regulations would necessarily have to be very flexible and nonspecific. We also noted that inspection of field sites was unrealistic at best given that the USDA does not have enough inspectors, much less inspectors knowledgeable in field biology, to inspect field sites and that it would be unreasonable to expect wildlife biologists to bear the costs of such inspections. Any regulations promulgated by USDA may pertain only to birds studied in captivity, as existing regulations pertaining to other taxa cover topics such as housing, feeding, water, sanitation, transit, and handling. NOTE: The Ornithological Council believes strongly that birds, both wild and captive-bred, should be treated humanely, both in the laboratory and in research conducted in the wild. It is for this reason that we publish the peer-reviewed Guidelines to the Use of Wild Birds in Research. Our objection to the possible inclusion of birds in the Animal Welfare Act regulations is based solely on the fact that it is likely to impose additional burdens on research without producing an improvement in the humane treatment of birds, because, as explained above, this research is already regulated under the Health Research Extension Act of 1985, which makes the Animal Act applicable to all vertebrates. We object only to duplicative and potentially conflicting sets of regulations and burdensome procedural compliance, without contributing to the humane treatment of birds in research.
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