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
"Paul P." <cheep@xxxxxxxxx> wrote:
Richard Roberts posted:
"It is indeed a Federal crime under the Migratory Bird Treaty Act of
1918, which protects migratory and insectivorous birds, including their
nests, eggs, and parts (feathers, etc.). ..."
I may have completely mixed up, but according to a staffer on the Senate
Commerce, Science & Transportation Committee, who I heard speak last
week, there will be a hearing tomorrow (June 10th) regarding this rule
in the context of the Congressional discussions on water (esp. the Clean
Water Act). I don't remember the specifics, but apparently this rule is
threatened by how Congress defines bodies of water (navigable, open,
etc). There was an Advanced Notice of Proposed Rule Making that has
since closed, and is expected to lead to a Notice of Proposed Rule
Making. Sorry I don't have more specific and clearer information than
this, but perhaps someone else on the list who has been following this
could explain.
Good birding,
Paul Pisano
Arlington, VA
cheep@xxxxxxxxx
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