[wisb] Regarding Dan Panetti's Important Post: Migratory Bird Treaty Act (MBTA): 100+ Year-Old Federal Law Is No Longer Applicable In WI (?)

From: Daniel Edelstein <danieledelstein@xxxxxxx>
To: wisbirdn@xxxxxxxxxxxxx
Date: Fri, 7 Jun 2019 06:58:33 -0700

Thank you, Dan (Panetti) for your recent birding postâ¦..Yes, bird mortality
occurs often in WI when tree companies hired by utilities (and staff utility
members)
trim or remove trees withOUT conducting a pre-construction bird
surveyâ¦â¦.with no âmitigationâ/Avoidance Measures (AMâs) applied as
followup,
IF (if!) an active nest is present when the trimming or removal occurs.

This mortality regularly occurs throughout WI and nationwide.

Thatâs because â {as you may know (?) } â the MBTA was the former,
applicable regulatory measure that protected actively nesting WI birds (and
bird species nationwide since 1918 when
the MBTA was implemented as a federal law)

No longer.

Hereâs the update:

The MBTA no longer applies to nesting birds that are taken incidentally. It
only applies to nesting birds that are taken where that is the intent of the
action.

This new interpretation of the MBTA is the result of a memorandum-opinion
(M-opinion) issued by the current president's administration that interprets
incidental take as legal.

Consequently, the federal government applies the MBTA is implemented
according to "intent" rather than "result.â

However, in states such as CA (where I conduct my services as a full-time
Freelance, Consulting Avian Biologist, it does not change regulatory
compliance because we have

three sections of the California Fish and Game Code that address and prevent
killing of nesting birds. Hence, any project here involving either noise
(from construction equipment) within 50 feet

of nesting songbirds (and 250 feet within nesting raptor species) or trimming
and/or removal of trees within the same 50/250-foot metric is prohibited.

In turn, if, say, a nesting American Goldfinch is discovered during a
pre-construction survey, then AMâs must be applied to protect the nest and
its inhabitants via a qualified Avian Biologist
hired to monitor the incubation and fledging cycle of the nesting
speciesâ¦..and when the nest is independent of inhabitants (based on the Avian
Biologistâs judgment), then construction
may begin (e.g., trimming/removal of trees).

Do other states possess CAâs three nesting bird regulatory measures? I do not
know.

As a recourse in WI, itâs mobilization at each individual project by vigilant
people that will stop avian mortality, but the goodwill of tree
companies/utilities will be necessary because
they are NOT required to conduct surveys.

GLAD to receive correction of my information and interpretation from above.
Hereâs hoping WI tree companies/utilities display ethics and morality beyond
my current belief
based on the recent, reduced effectiveness of the MBTA to protect birds.

Regards, Daniel

*

Daniel Edelstein

Avian Biologist Since 1986
(USFWS Permit #TE101743-0)}

&

Certified Wildlife Biologist Asc.
(For CEQA/NEPA Projectsâ¦I possess five permits to conduct focused surveys as
complements to my permitting and regulatory expertises)

& Birding Guide

12 Kingfisher Ct.
Novato, CA 94949

415-382-1827 (O)
415-246-5404 (iPhone)

warblerwatch.com
(hosts my resume)

warblerwatch.blogspot.com
(My 12-year-old warbler-centric blog, featuring articles, warbler news, & photo
quizzes)

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[wisb] Regarding Dan Panetti's Important Post: Migratory Bird Treaty Act (MBTA): 100+ Year-Old Federal Law Is No Longer Applicable In WI (?)

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