June 7, 2021
BY ELECTRONIC SUBMISSION
Via Federal eRulemaking Portal
U.S. Fish and Wildlife Service
5275 Leesburg Pike, MS: JAO/3W
Falls Church, VA 22041
Re: Docket No. FWS–HQ–MB–2018–0090, Regulations Governing Take of Migratory Birds; Proposed Rule
Please accept the following comments submitted by the Southern Environmental Law Center (“SELC”) on behalf of the 24 undersigned organizations, which work to protect and restore the natural environment in the Southeast. We write in response to the Fish and Wildlife Service’s (“Service”) proposed revocation of the final rule published at 86 Fed. Reg. 1,134 (the “January 7 rule”), and the re-establishment of legally-required protections against incidental take under the Migratory Bird Treaty Act (“MBTA”). See 86 Fed. Reg. 24,573 (May 7, 2021). The Service must revoke the illegal January 7 rule.
SELC previously submitted comments on behalf of broad coalitions of Southeastern conservation organizations on the Service’s scoping notice and proposed rule removing protection against take of migratory birds,1Those comments, which we incorporate by reference, are available here: Comments on Docket No. FWS-HQ-MB- 2018-0090, Notice of Proposed Rulemaking: Regulations Governing Take of Migratory Birds, and Notice of Intent to Prepare an Environmental Impact Statement, https://www.regulations.gov/document?D=FWS-HQ-MB-2018- 0090-8210 (“Scoping Comments”). the Service’s subsequent Draft Environmental Impact Statement (“DEIS”),2Those comments, which we incorporate by reference, are available here: Comments on Docket No. FWS-HQ-MB- 2018-0090-8631, Draft Environmental Impact Statement, USFWS, Regulations Governing Take of Migratory Birds, https://www.regulations.gov/document?D=FWS-HQ-MB-2018-0090-14170 (“DEIS Comments”). and the Service’s Final Environmental Impact Statement (“FEIS”), 3Letter to Dr. Eric Kershner, U.S. Fish & Wildlife Service, from Ramona McGee et al., Southern Environmental Law Center, Dec. 28, 2020 (“FEIS Comments”). and additionally submitted comments in response to the Service’s February 9, 2021, notice delaying the effective date of the January 7 rule.4Those comments, which we incorporate by reference, are available here: Comments on Docket No. FWS-HQ-MB- 2018-0090, Regulations Governing Take of Migratory Birds, https://www.regulations.gov/comment/FWS-HQ-MB- 2018-0090-18798. We incorporate those comments by reference here.
As explained in those previous comments, and as the Service recognizes in its instant proposed revocation, the interpretation codified under the January 7 rule is arbitrary and capricious and contrary to the statutory text of the MBTA. The January 7 rule relied on reasoning that a court had declared illegal at the time the rule was finalized to construe the terms “take” and “kill” on unreasonably narrow grounds. See Natural Res. Def. Council v. U.S. Dep’t of the Interior, 478 F. Supp. 3d 469, 480-81 (S.D.N.Y. 2020). This reasoning is not in “accord with the text, purposes, and history of the MBTA . . . .” 86 Fed. Reg. at 24,575; see FEIS Comments at 2-4. As further acknowledged in the proposed revocation, the Service has now dismissed its appeal of that court decision and permanently rescinded the M-Opinion 37050 upon which the January 7 rule was premised, further unraveling any offered rationales for that illegal rule.
The January 7 rule suffers from additional legal problems, as we and others previously highlighted. As the proposed revocation highlights, the rule creates conflict with U.S. treaty obligations with multiple treaty partners. See 86 Fed. Reg. at 24,576; Scoping Comments at 5-8. Additionally, the January 7 rule is premised on a National Environmental Policy Act (“NEPA”) analysis that suffers from numerous fatal legal flaws. The FEIS failed to analyze the true major federal action—removal of long-standing incidental take protections—and similarly failed to analyze effects of the proposed action against a proper baseline premised on conditions before those protections were removed. DEIS Comments at 3-4, 18-26; FEIS Comments at 4-5, 7-8. As a result of this flawed baseline, the analysis did not meaningfully disclose the full extent of impacts. DEIS Comments at 14-27; FEIS Comments at 10-13. The analysis also unreasonably underestimated impacts to federally-listed threatened and endangered species and failed to undertake formal consultation under Section 7 of the Endangered Species Act (“ESA”). FEIS Comments at 13-14.
Because the January 7 rule is contrary to law, and because the rule never underwent the required NEPA and ESA analysis of its environmental effects, it must be revoked, and the longstanding protections against incidental take that existed prior to the adoption of M-Opinion 37050 must be re-established, as the Service now proposes. Leaving the rule in place risks enormous environmental costs to imperiled migratory birds and the ecosystems and recreational economies that rely on them, costs which have never been analyzed under NEPA as required by law. Revocation is supported by the text of the MBTA and the majority of court decisions interpreting the scope of the statute—including the most recent decision that declared the specific interpretation codified in the January 7 rule illegal. See Natural Res. Def. Council, 478 F. Supp. 3d at 480-81. Revocation of the January 7 rule, and a return to prohibiting incidental take, is also supported by the decades of reliance by conservation organizations, governmental entities, and private companies on the Service to provide protection for imperiled migratory birds and healthy environmental communities in our region.
Once the arbitrary and capricious January 7 rule has been rescinded, the Service should take the further step of initiating a process to develop a migratory bird incidental take permitting program. A permitting program would provide additional certainty in the enforcement process—the stated purpose of the January 7 rule, see FEIS at 13—consistent with the MBTA’s prohibition against incidental take. Indeed, regulated industries have previously called for development of a permitting program.5See “Development of a Permit Program for Incidental Take of Migratory Birds” prepared by Holland & Hart, LLC for the Interstate Natural Gas Association of America, available at https://www.ingaa.org/File.aspx?id=11062. A permitting program would also expand public participation in the conservation of migratory birds.
A permitting program could be based on general or individual permits, or a hybrid of both, and could utilize existing industrial best practices as a starting point. See DEIS Comments at 9. While this alternative was raised in the FEIS, it was dismissed as not supporting the January 7 rule’s pre-determined outcome, without serious consideration or analysis. See DEIS Comments at 9; FEIS Comments at 9-10. The Service specifically found that developing a permitting system would be “better suited to analysis in a separate subsequent proposal if we were to choose [to define the scope of the MBTA to prohibit incidental take].” FEIS at 22. The Service has now taken that step and the opportunity to develop a permitting program is ripe. As this permitting system is developed, however, the Service must continue to comply with its legal responsibility to protect migratory birds from incidental take through the regulatory system and prosecutorial discretion that were in place prior to the adoption of M-Opinion 37050. The Service must revoke the January 7 rule, for all the reasons we and others have outlined before. We appreciate the opportunity to submit these comments.