FreeLists / va-bird / [va-bird] Re: Threat to Migratory Bird Rule

["Paul P." <cheep@xxxxxxxxx>]

Thanks Philip, that helps a lot.  I really had it messed up (and should
have kept my fingers shut).  That said, it looks like we should keep an
eye out for that rulemaking as it would be worth commenting on.

Good Birding,
Paul Pisano
Arlington, VA
cheep@xxxxxxxxx

Philip Kline wrote:

> Here's a quick and dirty response to Paul's concern: I believe the
> Migratory Bird Rule Paul is referring to is actually part of EPA's and
> Army Corps of Engineers regulations defining wetlands that are covered
> by the Clean Water Act, which actually has very little, if anything to
> do with the Migratory Bird Treaty Act. The Supreme Court recently (in
> 2001 I believe) found that those regulations exceed the respective
> agencies' jurisdiction under the Commerce Clause of the Constitution
> (the details are rather convoluted and require lengthy explanation).
> The federal register publication that announced the regulations
> contained a paragraph that became known as the Migratory Bird Rule.
> Essentially, the "rule" explains that the Corps of Engineers has
> jurisdiction (and thus the authority to prevent or condition filling
> of those wetlands under the Clean Water Act through a permitting
> system) over any wetland that is visited by migratory birds.  The
> Supreme Court found that this exceeded the Corps' jurisdiction under
> the Act and limited the Corp's authority over permitting wetland fill
> to those wetlands that are hydrologically connected to "navigable"
> waters (the definiton of "navigable" also has a convoluted and murky
> history). I'm not so clear on subsequent events but I believe the
> agencies initially redrafted the regulations to narrow the scope of
> the Court's opinion as much as possible.  The recent proposed
> rulemaking appears to be an attempt to broaden the scope of the
> Court's opinion and thus narrow the type of wetlands that the Corps
> has authority to require permits for filling.  The wetlands not
> covered by the new regulation will not be protected by the Clean Water
> Act and protection of these wetlands will be left to individual
> states, most of which have traditionally provided little to no
> protection.  Anyone concerned can comment on the proposed rulemaking
> after it is published (usually for at least 30 days after). Therefore,
> this rule is very important in that it will likely detrimentally
> affect many bird species that rely on wetland areas because fewer
> wetlands will be protected by the Clean Water Act.  However, it
> doesn't have anything to do with the Migratory Bird Treaty Act, which
> would be the statute that the allegedly callous and obnoxious
> photographer at Huntley could be prosecuted under. Hope this helps a
> bit. Philip


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