The U.S. Fish and Wildlife Service (FWS) has proposed to largely eliminate protections against incidental take under the Migratory Bird Treaty Act (“MBTA”). The proposed rule would limit the reach of the MBTA’s take prohibitions to activities with the purpose of taking birds. For example, if a power washer cleaning a bridge destroyed bird nests or otherwise harmed migratory birds, that would be permissible so long as the power washer’s purpose was cleaning the bridge rather than harming the birds.

On March 19, 2020, the Southern Environmental Law Center, on behalf of over 50 organizations (inluding Friends of Nelson), submitted comments with a focus on the proposal’s implications for our Southeastern region. Their comments highlight examples in our region where the MBTA’s incidental take prohibitions have played an important role in conserving migratory birds, while also noting some key Southeastern species.

The letter argues that:

1. The Proposed Regulation Governing Take of Migratory Birds Is Arbitrary and Capricious and Contrary to Law
   • The Interpretation in the Proposed Rule Is Not Supported by the Statute
   • The Interpretation in the Proposed Rule Is Not Supported by Treaties Relating to the MBTA
   • Proximate Cause Limits the Reach of Strict Liability Under the MBTA
2. FWS’s Scoping Notice Previews an Environmental Analysis That Shortcuts the Agency’s Obligations Under NEPA
   • The Notice Fails to Forthrightly Disclose the Major Federal Action Properly Subject to Analysis Under NEPA and Forecasts a Predetermined Outcome
   • The Agency Should Reset the Analysis of Alternatives
3. Excluding Incidental Takes Will Have Significant Effects on Protected Migratory Birds That Must Be Analyzed Under NEPA
   • Specific Projects That Compel Protections for Migratory Birds Due to Foreseeable Impacts (Atlantic Coast Pipeline, Mountain Valley Pipeline, Hampton Roads, Wind Energy Development, Atlantic Pelagic Longline Fisheries, Cape Hatteras National Seashore and Off-Road Vehicles)
   • FWS Must Assess Impacts to Species Particularly Vulnerable to Incidental Takes
   • FWS Must Analyze the Loss of Ecosystem Services and Economic Benefits of Birds in the Southeast
   • FWS Must Consider the Consequences of its Rulemaking in the Context of Climate Change

The SELC letter concludes, “Reversing course on decades of protections under the MBTA has already caused, and will continue to cause, impacts of significant consequence to migratory birds across the Southeast and the United States. Migratory birds are in steep decline from multiple stressors; many are already at risk of extirpation and face an uphill road to recovery, even with protections against incidental take in place under the MBTA. FWS’s proposed rulemaking will hasten the decline of migratory birds and cannot be squared with the broad protections afforded by the MBTA. Rather than continue with this rulemaking, we urge Interior to withdraw the proposed rule, rescind Opinion M-37050, and work instead on developing an appropriate regulatory program addressing the foreseeable incidental killing and taking of migratory birds.”

Read the full letter here.