Date: 6/7/19 6:59 am
From: Daniel Edelstein <danieledelstein...>
Subject: [wisb] Regarding Dan Panetti's Important Post: Migratory Bird Treaty Act (MBTA): 100+ Year-Old Federal Law Is No Longer Applicable In WI (?)

> Thank you, Dan (Panetti) for your recent birding post…..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 survey…….with no “mitigation”/Avoidance Measures (AM’s) applied as followup,
> IF (if!) an active nest is present when the trimming or removal occurs.

This mortality regularly occurs throughout WI and nationwide.

That’s because — {as you may know (?) } — 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.

Here’s 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.”

> 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 AM’s 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 species…..and when the nest is independent of inhabitants (based on the Avian Biologist’s judgment), then construction
may begin (e.g., trimming/removal of trees).

Do other states possess CA’s three nesting bird regulatory measures? I do not know.

As a recourse in WI, it’s 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. Here’s 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 Projects…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)
(hosts my resume)
(My 12-year-old warbler-centric blog, featuring articles, warbler news, & photo quizzes)

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