In March, we published a blog post on the Migratory Bird Treaty Act (MBTA), outlining current threats to this landmark law and opportunities for action. AOS members and the broader public now have another opportunity to weigh in on this important process.
To recap, the U.S. Fish and Wildlife Service (FWS) issued a proposed regulation that would lock in a 2017 legal opinion reinterpreting the MBTA that ended enforcement of “incidental take” under the law. The public comment period for this stage ended in March, and many scientists, state wildlife agencies, conservation organizations, and others submitted comments expressing concern and providing information to consider as part of an analysis to comply with the National Environmental Policy Act.
FWS has now taken the next step in its rollback of the law by releasing a draft Environmental Impact Statement (DEIS) on this proposed rule. This DEIS includes an environmental analysis and alternatives for this rule, and includes a public comment period that is open until July 20.
This comment period provides another critical opportunity to provide input on the rulemaking, particularly with regard to the adequacy of the analysis of impacts and its range of alternatives, as well as their preferred alternative and decision to continue to pursue this regulation.
The draft EIS includes three alternatives: a no-action alternative that continues to apply its 2017 legal opinion on the MBTA; a preferred alternative that codifies this opinion into the MBTA’s regulations; and an alternative that would rescind the opinion and codify the previous interpretation that prohibited incidental take.
FWS concluded that its preferred alternative would likely lead to the most harm to migratory birds of these three options by reducing the incentive to implement best management practices, which would lead to additional bird mortality, increased Endangered Species Act listings, a reduction of ecosystem services, and more.
Despite acknowledging these outcomes, FWS does not include a detailed analysis nor a methodology for describing how bird populations will be impacted, along with impacts to ecosystem services and other values, beyond noting that they are likely to be negative. Scientists have an important opportunity to provide additional information for FWS to consider how to analyze or explain these impacts, as well as provide additional input on its range of alternatives, and on its policy choices.
As we noted in our previous post, the implications of this process are profound for the health of bird populations and for the significant values that birds provide. The MBTA has been the foundation for North American bird conservation for a century, and its protections are needed now as much as ever.