The Wildlife Society and partners comment on incidental take permits

By Laura Bies

The U.S. Fish and Wildlife Service will return to the traditional interpretation of the Migratory Bird Treaty Act, under which incidental take is prohibited. Credit: Tom Koerner/USFWS

The Wildlife Society and partners are calling on the U.S. Fish and Wildlife Service to develop a new incidental take permit system that would minimize harm to birds while also increasing regulatory certainty for commercial entities.

The organization submitted comments with these suggestions to the agency in response to its recent announcement that it would revoke the previous administration’s interpretation of the Migratory Bird Treaty Act.

The Migratory Bird Treaty Act of 1918 protects over 1,000 migratory bird species across the United States by making it illegal to take — harm or kill — those species without a permit. The law has typically been interpreted as applicable to both incidental and intentional take of covered species. But a 2017 opinion by the Department of the Interior’s Solicitor narrowed that interpretation to exclude incidental take from the law, and the U.S. Fish and Wildlife Service codified that interpretation earlier this year.

But the current administration delayed implementation of that final rule and has now announced its intent to revoke it and restore MBTA enforcement over incidental take. During the comment period on that announcement, The Wildlife Society joined with partners to submit official comments supporting the revocation of the final rule.

In those comments, the organizations also recommended that the U.S. Fish and Wildlife Service develop a new permitting system for incidental take under the MBTA. Such a system would encourage the adoption of best management practices and help to modernize MBTA implementation.

“Taking action to secure and improve the Migratory Bird Treaty Act can provide a lasting favorable impact in addressing our biodiversity crisis, while ensuring that there are reasonable and consistent standards for the industrial sector, including for our growing clean energy economy,” the letter reads. “We urge the Service to pursue regulatory approaches to the MBTA that fulfill its commitments to conservation and provides a durable path forward for the future of this bedrock law, the birds it protects, and the people that benefit from their continued presence.”

In the letter, the organizations encourage the USFWS to begin the process of developing a new incidental take permitting system by publishing a formal Notice of Intent and beginning the environmental review process under the National Environmental Policy Act.

The Wildlife Society has also supported recent legislation that would reaffirm the MBTA’s prohibition on incidental take and establish a permitting system.

Read TWS’ comments on the proposed rule and the draft environmental impact statement.

Laura BiesLaura Bies is a government relations contractor and freelance writer for The Wildlife Society. She has a B.S. in Environmental Science and a law degree from George Washington University. Laura has worked with The Wildlife Society since 2005. Read more of Laura's articles.

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