Draft Environmental Impact Statement
Proposed Regulation Governing Take of Migratory Birds under the Migratory Bird Treaty Act
The U.S. Fish and Wildlife Service (Service) published a draft Environmental Impact Statement as part of the National Environmental Policy Act process as it relates to the to the scope of the Migratory Bird Treaty Act. This action is related to the 2017 Department of Interior Solicitor’s Opinion M–37050 which restricted the legal scope of the Migratory Bird Treaty Act to intentional take of migratory birds. This draft Environmental Impact Statement will commence a 45-day public comment period, closing July 20, 2020.
A federal agency is required under National Environmental Policy Act to consider a reasonable range of alternative actions, including a “no action alternative,” so as to fully review the environmental impacts of a rule. Reasonable alternatives must be economically and technically feasible, display common sense, and must address the purpose and need for the action. In this draft Environmental Impact Statement, the Service is proposing a no action alternative and two action alternatives:
- The no action alternative means that the Service would continue to implement the MBTA consistent with the direction given in M-Opinion 37050, which defines the scope of the MBTA to exclude incidental take. In accordance with M-37050, the Service’s enforcement of the MBTA is currently directed to purposeful actions negatively impacting migratory birds.
- Alternative A is to promulgate regulations to define the scope of the MBTA regarding incidental take consistent with M-37050. This is the Service’s preferred alternative because it best fulfills the purpose and need for action by reducing both the regulatory burden on the public and the enforcement burden on the Service’s law enforcement officers. It provides the public with a clear, binding rule on what does and does not constitute an MBTA violation.
- Alternative B would withdraw M-Opinion 37050 and the Service would implement the MBTA under the prior interpretation, which prohibited incidental take of migratory birds.
The draft Environmental Impact Statement published on June 5, 2020, opening a 45-day public comment period. Comments must be received on or before July 20, 2020.
All the documents related to this draft Environmental Impact Statement and proposed rulemaking and information on how to submit comments will be found at https://www.fws.gov/regulations/mbta/.