Proposed permanent rollback of a portion of a 100-year-old law that helped save Oklahoma waterfowl and upland birds has conservationists worried for the future.
Several major federal acts are credited with preserving the waterfowl and songbirds across the landscape today, including the Endangered Species Act, Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act, or MBTA.
Each, at one time or another, has been heralded for saving precious wildlife like the bald eagle, or lambasted for saddling industry with expense or cramping progress with unnecessary burdens.
The MBTA is a century-old federal statute that is often labeled the bedrock of bird conservation efforts. At its core, it makes it “unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture, or kill” a wide variety of migratory birds.
At issue now is an interpretation of a portion of that act related to industry practices that caused what was called “incidental take.” A decades-long interpretation of incidental take is what required British Petroleum to pay $100 million in fines for killing more than 1 million birds in the Deepwater Horizon tragedy.
In late 2017, the Department of Interior reversed that long-standing view and adopted a policy that the act would apply only “to actions directed at migratory birds” and exempts “(death) that results from, but is not the purpose of, an action.”
Some experts cite the change as one that “will bring certainty” for construction, forestry and energy industries. Critics say that interpretation allows business interests to simply label any bird deaths “accidental.” Powerful incentives for industry to plan to accommodate or innovate ways to protect avian wildlife will be erased, they say.
Although that interpretation is under challenge by environmental groups in federal court, the U.S. Fish and Wildlife Service on Feb. 3 issued a proposed rule that if adopted would set that challenged policy as its new regulatory definition.
Setting the rule in regulation is “a huge step in the wrong direction,” said Erik Schneider, policy manager for the National Audubon Society.
In Oklahoma and the Southwest the MBTA was instrumental in working with the petroleum industry in devising ways to prevent birds, especially waterfowl, from perishing in oil pits the birds could not recognize, Schneider said. Studies showed more than 100,000 ducks perished in the ponds some years in the Texas and Oklahoma region.
“They’re moving toward purely voluntary requirements rather than a legal requirement,” Schneider said. “The laws are important and they have been successful in making change ... The real concern is the kind of signal it sends across the country. Birds are dying in many different, preventable ways every day and now we have studies showing us North America’s birds declined by (2.9 billion) in 50 years, a quarter of our birds gone in one lifetime.”
The American Bird Conservancy works with wind and solar power industries and others on innovations and operational methods to help save birds and the act is a continuing incentive, according to Steve Holmer, vice president of policy for the group.
The group is working with operators of communications towers and the Federal Communications Commission and Federal Aviation Administration to adjust lighting, including towers across Oklahoma. The group has an app available through its website that notes towers that have yet to adopt the new practices that he said are proven effective and manageable.
“Every year in the United States, approximately 7 million migratory birds collide with tall communications towers and die,” Holmer said.
The concern is not so much related to next week or next year, but for the long term, according to Schneider.
“Companies have had an expectation for decades that birds are protected and it leads to best practices adopted across the country,” he said. “This sends a signal that they’re getting off and over time that would lead to fewer conservation measures being adopted.”
Dan Reinking a senior biologist at the Sutton Avian Research Center in Bartlesville said the MBTA and other federal regulations have helped all birds.
“Those regulations are there for a good reason and have been enforced for decades so this change is likely to have significant impacts on bird populations,” he said. “Many of those impacts won’t be huge single-event impacts but rather an accumulation of smaller impacts in many places over a longer period of time ... We won’t notice a big change one day to the next, or one year to the next, but over the decades it will accumulate and continue to drive bird populations down.”