TWS says analyses on new MBTA rule are inadequate

The Wildlife Society recently determined that the U.S. Fish and Wildlife Service’s draft environmental impact statement accompanying a proposed rule that would limit enforcement of the Migratory Bird Treaty Act by excluding incidental take, is inadequate. They recommended that the proposed rule is rescinded altogether.

In a letter in which The Wildlife Society submitted comments, they recommended that the Service “rescind the proposed rule entirely and revert to the former interpretation of the Migratory Bird Treaty Act to uphold the spirit of the original treaty, recognize migratory birds as an international and public trust resource, and ensure science-based conservation and management of migratory birds.”

Failing that, the agency should complete a new, more robust, environmental analysis and subject it to outside peer review, the comments said.

The EIS analyzed the possible effects of three different alternatives on migratory birds, other environmental resources, ecosystem services and the economy. “These analyses, in general, are perfunctory and not scientifically robust,” TWS said in the letter. “Of particular concern to The Wildlife Society is the absence of sufficient analysis regarding the effect on migratory birds, the very species that the Migratory Bird Treaty Act is supposed to protect.”

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 USFWS’ proposed rule, released in February, would codify in regulation the administration’s new interpretation that the law only applies to the intentional take of birds. The MBTA has traditionally been interpreted as prohibiting both the intentional take of migratory birds and their accidental — or incidental — take.

Under the new rule, activities that accidentally harm or kill migratory birds would no longer violate the MBTA. The Wildlife Society submitted comments on this proposal in March, urging the agency to abandon the proposal and return to the traditional interpretation of the act. The Wildlife Society has also supported legislation to reaffirm the MBTA’s prohibition on incidental take.

The Service plans to release a final rule later this year.