The U.S. Fish and Wildlife Service (Service) has made available a draft Environmental Impact Statement (DEIS) under the National Environmental Policy Act (NEPA). This action is a required next step for the Service in its regulatory undertaking to define the scope of the Migratory Bird Treaty Act (MBTA) to provide regulatory certainty to the public, industries, states, tribes and other stakeholders.
On February 3, 2020, the Service published a proposed rule clarifying that the scope of the MBTA only extends to conduct intentionally injuring birds. The rule codifies the 2017 Department of the Interior Solicitor’s Office Opinion M-37050, which was a legal determination that restricted the scope of the MBTA to intentional take of migratory birds and concluded that the take of birds resulting from an activity is not prohibited when the underlying purpose of that activity is not to take birds.
The Endangered Species Act and the Bald and Golden Eagle Protection Act, as well as state laws and regulations, are not affected by the Solicitor’s Opinion M-37050 or the proposed regulation. This publication is another step in the public process that the Service will continue to manage throughout the development of the rulemaking process. The public is encouraged to provide input to help ensure that these changes are clear, effective and advance the goal of migratory bird conservation.
“We are making every effort to ensure we are not merely complying with NEPA, but are being open and transparent in our regulatory activities and engaging the public fully,” said Aurelia Skipwith, Director of the U.S. Fish and Wildlife Service.
A federal agency is required under NEPA 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 DEIS, the Service is proposing a no action alternative and two action alternatives.
The draft Environmental Impact Statement will be available on June 5, 2020, opening a 45-day public comment period. Comments must be received on or before July 20, 2020. The DEIS will be available at http://www.regulations.gov, Docket Number: FWS-HQ-MB-2018-0090, and will include details on how to submit your comments.
All the documents related to this draft Environmental Impact Statement and proposed rulemaking and information on how to submit comments is available online at: https://www.fws.gov/regulations/mbta/.
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