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 average 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.