[House Hearing, 108 Congress]
[From the U.S. Government Printing Office]




 
         EXOTIC BIRD SPECIES AND THE MIGRATORY BIRD TREATY ACT

=======================================================================

                        OVERSIGHT FIELD HEARING

                               before the

      SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                                 of the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             FIRST SESSION

                               __________

           Tuesday, December 16, 2003, in Annapolis, Maryland

                               __________

                           Serial No. 108-83

                               __________

           Printed for the use of the Committee on Resources



 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house
                                   or
         Committee address: http://resourcescommittee.house.gov


                                 ______

                    U.S. GOVERNMENT PRINTING OFFICE
90-953                      WASHINGTON : DC
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512�091800  
Fax: (202) 512�092250 Mail: Stop SSOP, Washington, DC 20402�090001

                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana     Eni F.H. Faleomavaega, American 
Jim Saxton, New Jersey                   Samoa
Elton Gallegly, California           Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee       Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland         Frank Pallone, Jr., New Jersey
Ken Calvert, California              Calvin M. Dooley, California
Scott McInnis, Colorado              Donna M. Christensen, Virgin 
Barbara Cubin, Wyoming                   Islands
George Radanovich, California        Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Jay Inslee, Washington
    Carolina                         Grace F. Napolitano, California
Chris Cannon, Utah                   Tom Udall, New Mexico
John E. Peterson, Pennsylvania       Mark Udall, Colorado
Jim Gibbons, Nevada,                 Anibal Acevedo-Vila, Puerto Rico
  Vice Chairman                      Brad Carson, Oklahoma
Mark E. Souder, Indiana              Raul M. Grijalva, Arizona
Greg Walden, Oregon                  Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado         Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona               George Miller, California
Tom Osborne, Nebraska                Edward J. Markey, Massachusetts
Jeff Flake, Arizona                  Ruben Hinojosa, Texas
Dennis R. Rehberg, Montana           Ciro D. Rodriguez, Texas
Rick Renzi, Arizona                  Joe Baca, California
Tom Cole, Oklahoma                   Betty McCollum, Minnesota
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

      SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS

                 WAYNE T. GILCHREST, Maryland, Chairman
        FRANK PALLONE, JR., New Jersey, Ranking Democrat Member

Don Young, Alaska                    Eni F.H. Faleomavaega, American 
W.J. ``Billy'' Tauzin, Louisiana         Samoa
Jim Saxton, New Jersey               Neil Abercrombie, Hawaii
Mark E. Souder, Indiana              Solomon P. Ortiz, Texas
Walter B. Jones, Jr., North          Ron Kind, Wisconsin
    Carolina                         Madeleine Z. Bordallo, Guam
Randy Neugebauer, Texas              Nick J. Rahall II, West Virginia, 
Richard W. Pombo, California, ex         ex officio
    officio
                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Tuesday, December 16, 2003.......................     1

Statement of Members:
    Gilchrest, Hon. Wayne T., a Representative in Congress from 
      the State of Maryland......................................     1
        Prepared statement of....................................     2

Statement of Witnesses:
    Clay, William H., Animal and Plant Health Inspection 
      Services, U.S. Department of Agriculture...................     9
        Prepared statement of....................................    10
    Grandy, John W., Ph.D., Senior Vice President, Wildlife 
      Programs, The Humane Society of the United States, Prepared 
      statement submitted for the record.........................    40
    Hindman, Larry J., Waterfowl Project Manager, Maryland 
      Department of Natural Resources............................    12
        Prepared statement of....................................    14
    Hogan, Matt, Deputy Director, Fish and Wildlife Service, U.S. 
      Department of the Interior.................................     3
        Prepared statement of....................................     6
    Pardoe, David H., Member, Board of Directors, National 
      Audubon Society............................................    34
        Prepared statement of....................................    35
    Sparrowe, Dr. Rollin D., President, Wildlife Management 
      Institute..................................................    43
        Prepared statement of....................................    44
    Stallman, Dr. Elizabeth L., Wildlife Scientist, The Humane 
      Society of the United States, Oral statement of............    39
    Winegrad, Hon. Gerald W., Vice President for Policy, American 
      Bird Conservancy...........................................    46
        Prepared statement of....................................    50



OVERSIGHT HEARING ON EXOTIC BIRD SPECIES AND THE MIGRATORY BIRD TREATY 
                                  ACT

                              ----------                              


                       Tuesday, December 16, 2003

                     U.S. House of Representatives

      Subcommittee on Fisheries Conservation, Wildlife and Oceans

                         Committee on Resources

                          Annapolis, Maryland

                              ----------                              

    The Committee met, pursuant to call, at 11:00 a.m., in the 
Joint Committee Hearing Room, Legislative Services Building, 90 
State Circle, Annapolis, Maryland, Hon. Wayne T. Gilchrest 
[Chairman of the Subcommittee] presiding.
    Present: Representative Gilchrest.
    Staff Present: Edith Thompson, Legislative Assistant; Harry 
Burroughs, Staff Director; and Michael Correia, Clerk.

 STATEMENT OF THE HON. WAYNE T. GILCHREST, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF MARYLAND

    Mr. Gilchrest [presiding]. The Subcommittee on Fisheries, 
Wildlife, and Oceans will come to order. As we move through the 
hearing today if there are any members from the Maryland 
General Assembly, House or Senate side, you will be invited to 
come to the dais and ask questions and be a part of the hearing 
process.
    I would also ask if there is anyone in the room that has a 
burning specific question or comment that they need to address 
this hearing, we will be available at the conclusion of the 
hearing to talk to anybody about issues that they felt were not 
addressed during the hearing. And your concerns will be met 
with the same interest and sense of urgency as any of the 
witnesses that are testifying here today. You're welcome.
    The Subcommittee will conduct this oversight hearing on 
exotic bird species and the Migratory Bird Treaty Act. The 
United States is currently a party to four international 
treaties to protect and conserve populations of migratory 
birds. Two years after the signing of the first treaty with 
Great Britain, Congress enacted the Migratory Bird Treaty Act 
of 1918. This Act is our domestic implementing law and 
statutorily commits this Nation to the proper management of 
certain families and species of birds.
    After reviewing these treaties, it is clear that the list 
of covered species is not exhaustive. There is an inconsistency 
with migratory and non-migratory birds, and no distinction is 
made between exotic and native species. A U.S. Court of Appeals 
ruled that mute swans are covered by the Migratory Bird Treaty 
Act because the family Anatidae to which swans belong is 
protected under certain of these treaties and because mute 
swans were not specifically excluded from the Migratory Bird 
Treaty protection. This raises questions about the treatment of 
any free-ranging exotic bird species occupying habitats here in 
the United States all year long or during seasons migrations.
    During today's hearing, we will hear testimony on a number 
of exotic bird species, including eurasian collard doves, house 
sparrows, mute swans, muscovy ducks and rock doves. We will 
learn about the impacts of these and other exotic bird species 
on the public trust priorities of Federal and State agencies, 
such as the stewardship of native species populations and 
habitats, the migration of natural damages to agriculture and 
other economic interests and the protection of human health and 
welfare.
    We will also explore the intent of Migratory Bird Treaty 
Act and the challenges it may pose to the conservation of 
healthy population of avian species that are in conflict over 
similar habitats in a highly altered landscape. I also hope to 
gain a better understanding of the Migratory Bird Treaty Act 
listing process, the criteria used to list or delist species 
and how the U.S. interacts with other signatories to these 
treaties over the treatment of exotic birds.
    Exotic, invasive species are having a huge impact on the 
Nation's native wildlife and fisheries, economic interests, 
infrastructure and human health. In fact, it has been estimated 
they are costing our economy as much as $100 billion a year.
    This hearing is timely because Congress is considering 
legislative proposals to address this growing and pervasive 
problem. These species range from pathogens to vertebrates and 
the issues are complex. I am confident that reasoned debate and 
rational thought will help us identify and meet the challenge. 
We will review both new legislative proposals and existing laws 
that may contain conflicting national policy regarding wildlife 
conservation and management priorities.
    I look forward to hearing from our distinguished witnesses 
who have vast knowledge and experience in this field, and I 
would welcome all of you here to this beautiful, historic city 
of Annapolis.
    [The prepared statement of Mr. Gilchrest follows:]

       Statement of The Honorable Wayne T. Gilchrest, Chairman, 
      Subcommittee on Fisheries Conservation, Wildlife and Oceans

    Good morning. Today, the Subcommittee will conduct an oversight 
hearing on Exotic Bird Species and The Migratory Bird Treaty Act.
    The United States is currently a party to four international 
treaties to protect and conserve populations of migratory birds. Two 
years after the signing of the first treaty with Great Britain, 
Congress enacted the Migratory Bird Treaty Act of 1918. This Act is our 
domestic implementing law, and it statutorily commits this nation to 
the proper management of certain families and species of birds.
    After reviewing these treaties, it is clear that the list of 
covered species is not exhaustive, there is an inconsistency between 
migratory and nonmigratory birds and no distinction is made between 
exotic and native species.
    A U.S. Court of Appeals ruled that mute swans are covered by the 
Migratory Bird Treaty Act because the family anatidae, to which swans 
belong, is protected under certain of these treaties and because mute 
swans were not specifically excluded from migratory bird treaty 
protection. This raises questions about the treatment of any free-
ranging exotic bird species occupying habitats here in the United 
States all year or during seasonal migrations.
    During today's hearing, we will hear testimony on a number of 
exotic bird species, including Eurasian collared doves, house sparrows, 
mute swans, Muscovy ducks and rock doves. We will learn about the 
impacts of these and other exotic bird species on the public trust 
priorities of federal and state agencies, such as the stewardship of 
native species populations and habitats, the mitigation of natural 
damages to agriculture and other economic interests, and the protection 
of human health and welfare.
    We will also explore the intent of the Migratory Bird Treaty Act 
and the challenges it may pose to the conservation of healthy 
populations of avian species that are in conflict over similar habitats 
in a highly altered landscape. I also hope to gain a better 
understanding of the Migratory Bird Treaty Act listing process, the 
criteria used to list or delist species and how the U.S. interacts with 
other signatories to these treaties over the treatment of exotic birds.
    Exotic, invasive species are having a huge impact on this nation's 
native wildlife and fisheries, economic interests, infrastructure and 
human health. In fact, it has been estimated they are costing our 
economy about $100 billion each year.
    This hearing is timely because Congress is considering legislative 
proposals to address this growing and pervasive problem. These species 
range from pathogens to vertebrates and the issues are complex.
    I am confident that reasoned debate and rational thought will help 
us identify and meet the challenge. We will review both new legislative 
proposals and existing laws that may contain conflicting national 
policy regarding wildlife conservation and management priorities.
    I look forward to hearing from our distinguished witnesses who have 
vast knowledge and experience in this field. I would like to welcome 
everyone to Annapolis.
                                 ______
                                 
    Mr. Gilchrest. Our first panel will be Mr. Matt Hogan, 
Deputy Director, U.S. Fish and Wildlife Service, accompanied by 
Mr. Chandler Robbins, Senior Scientist, Biological Resources 
Division, U.S. Geological Survey; Mr. William Clay, Animal and 
Plant Health Inspection Services, U.S. Department of 
Agriculture; and Mr. Larry Hindman, Waterfowl Project Manager, 
Maryland Department of Natural Resources. Gentlemen, thank you 
very much for coming this morning. We look forward to your 
testimony. And, Mr. Hogan, you may begin.

    STATEMENT OF MATT HOGAN, DEPUTY DIRECTOR, U.S. FISH AND 
   WILDLIFE SERVICE; ACCOMPANIED BY DR. CHANDLER S. ROBBINS, 
     SENIOR SCIENTIST, BIOLOGICAL RESOURCES DIVISION, U.S. 
                       GEOLOGICAL SURVEY

    Mr. Hogan. Thank you for the opportunity to provide the 
Department of Interior's views regarding exotic birds species--
    Mr. Gilchrest. Mr. Hogan, is your mike on?
    Mr. Hogan. There we go. I apologize.
    Mr. Gilchrest. OK.
    Mr. Hogan. Would you like me to start from the beginning? 
Mr. Chairman, thank you for the opportunity to provide the 
Department of Interior's views regarding exotic bird species 
and the Migratory Bird Treaty Act. If it is OK with you, I ask 
that my written statement become part of the record.
    Mr. Gilchrest. Without objection, so ordered.
    Mr. Hogan. And also in the testimony I will refer to the 
Migratory Bird Treaty Act as the MBTA, just to shorten it a 
little bit.
    As I said, I am Matt Hogan, Deputy Director of the U.S. 
Fish and Wildlife Service, and in addition to Mr. Chandler 
Robbins I am also accompanied by Mr. Paul Schmidt, our 
Assistant Director for Migratory Birds and State Programs.
    The United States has bilateral migratory bird conventions 
with Canada, Mexico, Japan and Russia. The MBTA is the domestic 
law implementing the United States commitment to the four 
international conventions protecting our shared migratory bird 
resources. The primary purpose of the MBTA is to manage and 
conserve more than 800 species of migratory birds in the United 
States. The Service is the lead Federal agency for managing and 
conserving migratory birds in the U.S.
    While the MBTA is silent on the issue of exotic species, 
the Service has long regarded exotic bird species as falling 
outside the protections of the MBTA. Exotic bird species can 
have a detrimental impact on native species protected by the 
MBTA. The Service believes that protecting exotic bird species 
under the MBTA would be counterproductive to the primary 
purpose of the Act and would divert resources needed for the 
conservation and management of our native species.
    The Service's practice of excluding exotic species from the 
MBTA reflects a number of important biological and ecological 
factors. First, considering that the MBTA and the four 
bilateral conventions that implement it are, in essence, bird 
conservation statutes, it does not make sense for the Federal 
Government to expend limited resources conserving introduced 
species at the possible expense of native species. Second, 
there is a growing body of evidence indicating that introduced 
birds are often harmful to native plants and animals. The 
potential harm of such introductions is especially obvious in 
island settings such as Puerto Rico and the Hawaiian Islands.
    There is widespread concern among wildlife scientists about 
the impact of non-native mute swans on natural resources of the 
U.S., including aquatic habitats and vegetation and native 
species of fish and wildlife. In the Chesapeake Bay of 
Maryland, the current population of 3,600 birds consumes an 
estimated 10.5 million pounds of submerged aquatic vegetation 
annually, representing about 10.5 percent of the total biomass 
of submerged aquatic vegetation in the bay. If the mute swan 
population continues to double every 8 years, as predicted in 
the absence of control efforts, they would be consuming 
approximately 21 percent or more of the available aquatic 
vegetation annually by the year 2010.
    Mute swans can also have a direct effect on native species. 
Mute swans not only attack and displace native waterfowl from 
breeding, staging and wintering areas, they also have been 
known to kill intruding birds of other species and their young. 
One of the more dramatic instances in which mute swans have 
displaced native species was documented in Dorchester County, 
Maryland, where an annual molt-gathering of up to 600 mute 
swans caused repeated reproductive failures and ultimately the 
abandonment of the largest colony of least terns in the State, 
accounting for 49 percent of the statewide population of the 
terns and one of only two known colonies of black skimmers in 
Maryland in the Maryland portion of the bay. Both of these 
species are listed as threatened by the State of Maryland.
    Prior to 2001, the Service considered the mute swan an 
exotic species and therefore not subject to the protection of 
the MBTA. Management of mute swans, including resolution of any 
problems that they might cause, was considered to be a de facto 
responsibility of the States with no involvement required of 
the Federal Government. In July 1999, the Service was sued for 
not affording the mute swan protection under the MBTA. In 
December 2001, the U.S. District Court for the District of 
Columbia ruled that as a swan and members of the family 
Anatidae, both of which are expressly listed in the Canadian 
and Mexican conventions, the mute swan qualified for protection 
under the Migratory Bird Treaty Act. This is also known as the 
Hill decision. In the ruling, the court noted the absence of 
any clear and unambiguous evidence that Congress intended for 
the MBTA to apply only to native species.
    Following the Hill decision, the Service initially 
concluded that the issuance of depredation permits for the take 
of mute swans was categorically excluded from NEPA and that 
further environmental reviews were not necessary. Thus, the 
Service issued depredation permits in 2002 and 2003 as 
categorical exclusions to NEPA. In the spring of 2003, the 
Service issued a permit to the Maryland Department of Natural 
Resources, authoring the take of up to 1,500 mute swans. The 
Fund for Animals filed a lawsuit and sought an injunction. In 
response, the State of Maryland voluntarily relinquished the 
permit, and the Service initiated an environment assessment for 
the management of mute swans in the Atlantic Flyway. Following 
a 30-day public comment period and a final environmental 
assessment, the Service issued a new permit to the State of 
Maryland, authorizing the take of approximately 900 mute swans. 
However, the judge ruled in favor of the Fund for Animals in 
granting an injunction, and his ruling suggested that the 
Service would be unlikely to win the case on its merits. Thus, 
the Service settled with the Fund for Animals and agreed not to 
issue any additional mute swan depredation permits until a new 
environmental review was conducted.
    The Department of Interior does not expect that the court's 
concerns could be addressed through an environmental impact 
statement. As a result, the Service does not intend to initiate 
a new environmental review in Fiscal Year 2004. The result is 
that the State wildlife agencies, national wildlife refuges and 
other agencies and organizations wishing to implement programs 
to control the growth of mute swan populations to alleviate 
their impacts on native plant communities, fish and wildlife 
resources and local economic interests will be prevented from 
doing so.
    A variety of organizations, more than 40 in total, 
including 13 State wildlife agencies and groups dedicated to 
bird conservation, bird science, wildlife conservation and 
wildlife management, has expressed support for the State and 
Federal management actions to control or eliminate the exotic 
mute swan from the United States. However, several 
organizations, including the Friends of Wildlife, Fund for 
Animals, Save Maryland Swans and Save our Swans USA, have been 
vocal and highly visible in expressing their opposition to the 
management and killing of mute swans for any reason.
     In summary, Mr. Chairman, affording the protection of the 
MBTA to introduce birds that are not native to the United 
States is ecologically unsound, contrary to the stated purposes 
of the MBTA and contrary to efforts by the Federal Government 
to control invasive species. However, until it is made clear 
that the MBTA excludes exotic species, the Service will 
continue to abide by the court's decision.
    Mr. Chairman, this concludes my prepared statement. I would 
be certainly happy to answer any questions you might have.
    [The prepared statement of Matt Hogan follows:]

 Statement of Matt Hogan, Deputy Director, Fish and Wildlife Service, 
                    U.S. Department of the Interior

    Mr. Chairman and Members of the Subcommittee, I thank you for the 
opportunity to provide the Department of the Interior's (Department) 
views regarding exotic bird species and the Migratory Bird Treaty Act 
(MBTA). I am Matt Hogan, Deputy Director of the U.S. Fish and Wildlife 
Service (Service). I am joined today by Paul Schmidt, Assistant 
Director of the Service's Migratory Bird and State Programs, as well as 
Chandler Robbins of the U.S. Geological Survey's Patuxent Wildlife 
Research Center.
    The MBTA is the domestic law implementing the United States' 
commitment to four international conventions for the protection of 
shared migratory bird resources. The primary purpose of the law is to 
manage and conserve more than 800 species of migratory birds in the 
United States. The Service is the lead federal agency for managing and 
conserving migratory birds in the United States.
Exotic Bird Species and the Migratory Bird Treaty Act
    The United States has bilateral migratory bird conventions with 
Canada, Mexico, Japan and Russia. The international arrangements are 
important given the migratory nature of these species and reflect some 
of the more visionary legal instruments developed to benefit both the 
environment and the public. Each of the four bilateral migratory bird 
conventions to which the U.S. is a party specifically lists the birds 
that are meant to be protected by the MBTA. The birds covered by the 
conventions are variously listed by species groups (Canada 1916), 
families (Canada 1916 and 1998 protocol amendment, Mexico 1936 and 1973 
amendment), and individual species (Japan 1972 and Russia 1976).
    Species are added to the MBTA list of protected species on the 
basis of (1) new evidence that the species occurs in the U.S. or (2) 
taxonomic ``splitting'' in which one species is split into two or more 
species (but, in reality, these ``new'' species were previously 
protected as subspecies). Species may be removed from the list for the 
following reasons: (1) the species is known to be extinct; (2) previous 
listing was erroneous (e.g., species does not occur in the U.S., or 
does not belong to a family or species group covered by any of the 
conventions); or (3) the species is no longer recognized as a valid 
biological unit because of taxonomic revisions.
    The Service has long regarded exotic bird species as falling 
outside the protection of the MBTA because exotic bird species can have 
a detrimental impact on native species protected by the MBTA. The 
Service believes that protecting exotic bird species under the MBTA 
would be counterproductive to the primary purpose of the Act and divert 
resources needed for the conservation and management of native species. 
In a general sense, ``exotic'' is a term that refers to a species that 
has escaped from captive facilities or been introduced (intentionally 
or unintentionally) by humans into an area in which it is not native; 
it is generally synonymous with the terms alien, foreign, introduced, 
non-indigenous, and non-native. When exotic species negatively impact 
the native fauna or flora or have negative effects on human health, 
culture or economic well-being, the species is also considered 
invasive. ``Native'' is a term used to describe a species that occurs 
in a given ecological or geographic area strictly as a result of 
natural biological and ecological processes (i.e., no direct human 
involvement).
    The Service's practice of excluding exotic species from the MBTA 
reflects a number of important biological and ecological factors. 
Evidence of the consistent application of this policy becomes readily 
apparent in examining the 12 lists of MBTA-protected birds published 
since 1950. First, considering that the MBTA and the four bilateral 
conventions that it implements are, in essence, bird conservation 
statutes, it does not make sense for the federal government to expend 
limited resources conserving introduced species at the possible expense 
of native species. Second, there is a growing body of evidence which 
indicates that introduced birds are often harmful to native plants and 
animals. Increased awareness about the potential threats posed by 
exotic birds emerged in the 1970's in concert with increased 
trafficking in exotic species. The potential harm of such introductions 
became especially obvious in island settings, such as Puerto Rico and 
the Hawaiian Islands.
    Increased awareness of the economic and ecological damages caused 
by invasive species has led the U.S. Government to develop a clear body 
of mitigative policy on this issue. For example, the Lacey Act 
restricts the importation, acquisition, and possession of wildlife 
deemed ``injurious'' and the Service has established regulations on 
injurious wildlife. The National Invasive Species Act, passed by 
Congress in 1996, authorized the Aquatic Nuisance Species Task Force, 
which the Service co-chairs. In 1999, President Clinton signed 
Executive Order 13112, establishing the National Invasive Species 
Council to coordinate federal invasive species activities and calling 
for the issuance of a National Invasive Species Management Plan. These 
laws and the Executive Order are consistent with the Service's 
exclusion of exotic bird species from the protections of the MBTA.
    The Service has had detailed discussions with our treaty partners 
regarding the exclusion of exotic species from the protection of the 
MBTA. We are currently working with Canada to clarify the 
interpretation of the Treaty. The Canadian government has indicated 
that they support our long-standing interpretation that the Treaty was 
intended to cover native bird species. A formal documentation of this 
position is being considered.
    The Service has engaged in a number of efforts to control and 
manage exotic bird species for over a century. This effort was started 
by the U.S. Biological Survey (forerunner of the Service) in the late 
1890's, and was continued by the Service's Animal Damage Control 
program through the late 1980's (when that program was transferred to 
the U.S. Department of Agriculture). One means of addressing this issue 
is through import restrictions. For example, the Service prohibits the 
import of three exotic bird species (Rosy Starling, Pastor roseus; Red-
billed Quelea, Quelea quelea; and Red-whiskered Bulbul, Pycnonotus 
jocosus) into the U.S. because they are considered ``injurious 
wildlife.'' For almost a century, the Service has known of the 
potential for negative impacts from both the house sparrow and the 
European starling on native species. As a result, the Service has long 
condoned the removal of adults, eggs and nests of European starlings 
and house sparrows from artificial houses and nest boxes erected to 
benefit species such as bluebirds and purple martins. Most recently, 
the Service was working with the State of Maryland and 10 other states 
to manage mute swan (Cygnus olor) populations.
Mute Swans
    There is widespread concern among wildlife scientists about the 
impacts of non-native mute swans on natural resources of the U.S., 
including (a) aquatic habitats and vegetation and (b) native species of 
fish and wildlife.
    With regard to aquatic habitats and vegetation, an estimated 61 
million pounds (or 30 thousand tons) of submerged aquatic vegetation 
are removed annually from wetland habitats in the U.S., being directly 
consumed by an estimated 21,400 mute swans (Fish and Wildlife Service). 
Another 153 million pounds (or 77 thousand tons) of submerged aquatic 
plants may be uprooted by foraging swans, but not consumed, thereby 
causing habitat degradation and loss (Fish and Wildlife Service). This 
represents a net loss of some 214 million pounds (or 107 thousand tons) 
of vegetation that is no longer available to native species of fish and 
wildlife as protective cover from predators, nursery habitats for 
rearing young, and sources of food. It also represents an irretrievable 
loss of an important source of dissolved oxygen, an essential element 
for the survival of many species of aquatic organisms of economic and 
recreational value.
    In the Chesapeake Bay of Maryland, the current population of 3,600 
birds consumes an estimated 10.5 million pounds (or 5.3 thousand tons) 
of submerged aquatic vegetation annually; representing about 10.5 
percent of the total biomass of submerged aquatic vegetation in the Bay 
(Fish and Wildlife Service). If the mute swan population continues to 
double every eight years, as predicted in the absence of control 
efforts (Atlantic Flyway Council 2003, Maryland DNR 2003), they would 
be consuming 21 percent or more of the available aquatic vegetation 
annually by the year 2010.
    Mute swans are perhaps most detrimental to native species of fish 
and wildlife in an indirect manner, by altering and destroying aquatic 
vegetation (Gilham 1956, Willey 1969, Chasko 1986, Ciaranca et al 
1997). For example, the varied structure exhibited by beds of submerged 
aquatic vegetation (SAV) provides estuarine-spawning fish (e.g., shad, 
herring, stripped bass and rockfish) and other marine organisms (e.g., 
oysters and blue crabs) and their offspring with protection from 
predators. Any alteration or destruction of these habitats, including 
that which can be inflicted by foraging mute swans, can diminish their 
value for these commercially important species (Krull 1970, Hurley 
1991, Hindman and Harvey 2003). The density of juvenile blue crabs, for 
example, has been shown to be 30 times greater in SAV beds than in non-
vegetated areas of the Chesapeake Bay (Maryland DNR 2003).
    Mute swans can also have a direct effect on native species. Mute 
swans not only attack and displace native waterfowl from breeding, 
staging, and wintering areas (Willey, Reese 1975, Ciaranca 1990, 
Ciaranca et al. 1997), they have also been known to kill intruding 
birds of other species and their young (Stone and Masters 1970, Reese 
1980, Kania and Smith 1986). One of the more dramatic instances in 
which mute swans have displaced native species was documented in 
Dorchester County, Maryland, where an annual molt-gathering of up to 
600 mute swans caused repeated reproductive failures in, and ultimately 
the abandonment of, the largest colony of least terns in the State 
(accounting for 49 percent of the Statewide population) and one of only 
two known colonies of black skimmers in the Maryland portion of the Bay 
(Therres and Brinker 2003). Both of these species are listed as 
threatened by the State of Maryland.
The Hill Decision
    Prior to 2001, the Service considered the mute swan an exotic 
species and therefore not subject to the protections of the MBTA. 
Management of mute swans--including resolution of any problems that 
they might cause--was considered to be a de facto responsibility of the 
states, with no involvement required of the federal government. In 
July1999 the Service was sued for not affording the Mute swan 
protection under the MBTA. In December 2001, the U.S. District Court 
for the District of Columbia ruled that, as a ``swan'' and a member of 
the family ``Anatidae'' (both of which are expressly listed in the 
Canadian and Mexican conventions), the Mute swan qualified for 
protection under the Migratory Bird Treaty Act (the Hill decision). In 
the ruling, the court noted the absence of any clear and unambiguous 
evidence that Congress intended for the MBTA to apply only to native 
species.
    Following the Hill decision, the Service initially concluded that 
the issuance of depredation permits for the take of Mute swans was 
categorically excluded from NEPA and that further environmental review 
was not necessary. Thus, the Service issued depredation permits in 2002 
and 2003 as ``categorical exclusions'' to NEPA. In Spring 2003, the 
Service issued a permit to the Maryland Department of Natural Resources 
authorizing the take of up to 1,500 Mute swans. The Fund for Animals 
filed a lawsuit and sought an injunction. In response, the State of 
Maryland voluntarily relinquished their permit and the Service 
initiated an Environmental Assessment (EA) for the Management of Mute 
Swans in the Atlantic Flyway. Following a 30-day public comment period 
and final EA, the Service issued a new permit to the State of Maryland 
authorizing the take of approximately 900 Mute swans. However, the 
Judge ruled in favor of the Fund for Animals in granting an injunction 
and his ruling suggested that the Service would be unlikely to win the 
case on the merits. Thus the Service settled with the Fund for Animals 
and agreed not to issue any additional Mute swan depredation permits 
until a new environmental review was conducted.
    The Department of the Interior does not expect that the Court's 
concerns could be addressed through an Environmental Impact Statement 
(EIS). As a result, the Service does not intend to initiate a new 
environmental review in FY 2004. The result is that state wildlife 
agencies, National Wildlife Refuges, and other agencies and 
organizations wishing to implement programs to control the growth of 
Mute swan populations to alleviate their impacts on native plant 
communities, fish and wildlife resources, and local economic interests 
will be prevented from doing so.
    The Service's decision garnered broad support from 13 state 
wildlife agencies and a variety of organizations (more than 40 in 
total) dedicated to bird conservation, bird science, wildlife 
conservation, and wildlife management. However, several organizations, 
including Friends of Wildlife, Fund for Animals, Save Maryland's Swans, 
and Save Our Swans USA, were vocal and highly visible in expressing 
their opposition to the killing of mute swans for any reason.
Conclusion
    In summary, affording the protection of the MBTA to introduced 
birds that are not native to the United States is ecologically unsound, 
contrary to the stated purpose of the MBTA, and contrary to efforts by 
the federal government to control invasive species.
    Mr. Chairman, this concludes my prepared statement. Thank you again 
for the opportunity to testify at today's hearing. I would be pleased 
to respond to any questions you or the Subcommittee Members may have.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Hogan.
    Mr. Clay. I understand Dr. Robbins is not going to--you 
don't have any testimony.
    Dr. Robbins. No.
    Mr. Gilchrest. Mr. Clay.

     STATEMENT OF WILLIAM H. CLAY, ANIMAL AND PLANT HEALTH 
      INSPECTION SERVICES, U.S. DEPARTMENT OF AGRICULTURE

    Mr. Clay. Thank you, Mr. Chairman, and I appreciate the 
opportunity to speak with you this morning on behalf of the 
U.S. Department of Agriculture on exotic bird species and the 
Migratory Bird Treaty Act. I am the Deputy Administrator for 
the Wildlife Services Program, and I would like to first start 
out by giving you a brief overview of Wildlife Services.
    As part of USDA's Animal and Plant Health Inspection 
Services, the Wildlife Services Program provides Federal 
leadership and expertise in resolving damage caused by 
wildlife. Over the last decade, Wildlife Services' mission has 
expanded beyond traditional agricultural damage to also include 
minimizing public health and safety threats from wildlife, 
dealing with wildlife conflicts in urban areas, protecting 
property, helping to protect threatened and endangered species, 
and helping to protect other natural resources as well.
    The Wildlife Services Program provides assistance on a 
request basis. In addition to working with individuals, our 
program personnel also work with other Federal, State and local 
government officials that manage--that request wildlife damage 
management assistance. These cooperators share in the cost of 
many of our wildlife damage management activities.
    Resulting damage caused by exotic bird species is one of 
many areas where the Wildlife Services Program has seen an 
increased request for assistance. Some examples of exotic or 
non-native birds include starlings, rock doves, also known as 
feral pigeons, house sparrows and mute swans. Starlings which 
are native to Europe are probably the most problematic of the 
exotic bird species. Population estimates for starlings now 
exceed 200 million birds in North America. In the year 2002, 
Wildlife Services personnel removed or dispersed approximately 
2.7 million starlings from across the United States. Most of 
these were in dairies and feedlots where the birds congregate 
in the winter where they get food and shelter. But most of the 
damage from starlings occurs as the birds consume or 
contaminate livestock feed with their droppings.
    Rock dove, which are native to the Mediterranean area, are 
another exotic species that cause damage across the United 
States. Again, in 2002, Wildlife Services personnel dispersed 
or removed more than 69,000 rock doves mainly from urban areas 
in the United States where the birds caused property damage and 
threatened public health and safety from their droppings which 
accumulate on sidewalks and on buildings.
    Researchers estimate that Americans spend more than $1 
billion a year to control and to clean up after this exotic 
bird. In addition, rock dove also pose a serious threat to air 
travelers where the birds often collide with aircraft taking 
off or landing at airports. In fact, this threat at airports 
from exotic birds leaves us in Hawaii where we're actually 
dealing with two other exotic bird species, removing them from 
local airports, the chestnut mannikin and the zebra doves, 
where there is a serious problem if a bird strikes an aircraft 
there.
    Wildlife Services has the legislative authority to manage 
damage or threats posed by exotic bird species, but we do not 
have the authority to manage the species themselves. In order 
to manage damage caused by birds protected under the Migratory 
Bird Treaty Act, Wildlife Services personnel must first obtain 
a permit from the U.S. Fish and Wildlife Service. Starlings, 
rock dove and house sparrows are not protected by the Act and 
no permit is required for them.
    In the case of the mute swans here in Maryland, the U.S. 
Fish and Wildlife Service, the Army Corps of Engineers and the 
Maryland Department of Natural Resources requested Wildlife 
Service to assist them in their efforts to control damage 
caused by mute swans. Mute swans, along with nutria, are 
contributing to the destruction of the Chesapeake's marsh 
grasses, which provide a significant impact by filtering the 
bay, providing a valuable food source for native species and 
are also an important habitat for crabs, fish and other 
wetland-dependent species. Cooperative efforts by these 
agencies are helping to control populations of nutria. However, 
our cooperative efforts to manage the mute swans were halted 
earlier this year through a preliminary injunction issued in a 
lawsuit brought by the Fund for Animals against the U.S. Fish 
and Wildlife Service in August. And as Mr. Hogan mentioned in 
his testimony, that case was settled when the Fish and Wildlife 
Service agreed to withdraw its environmental assessment and 
management of mute swans in the Atlantic Flyway and withdraw 
their related finding of no significant impact and also 
withdraw and terminate all depredation permits. This agreement, 
however, did not alter the Fish and Wildlife Service's 
authority to issue Wildlife Service's permits on an emergency 
basis to protect public health and safety and to prevent bird 
strikes at airports.
    I would like to conclude by saying that Wildlife Services 
has a good working relationship with the Fish and Wildlife 
Service and with the many State wildlife agencies that we work 
with, and we are prepared to work with them in managing future 
problems caused by exotic bird species.
    Mr Chairman, thank you again for the opportunity to talk 
with you about Wildlife Services' role in managing damage 
caused by exotic bird species, and I would also be happy to 
answer any questions that you may have.
    [The prepared statement of William H. Clay follows:]

    Statement of Bill Clay, Deputy Administrator, Wildlife Services 
 Division, Animal and Plant Health Inspection Service, U.S. Department 
                             of Agriculture

    Mr. Chairman and Members of the Subcommittee, thank you for this 
opportunity to speak with you on behalf of the U.S. Department of 
Agriculture (USDA) about exotic bird species and the Migratory Bird 
Treaty Act. I would like to start by providing a brief overview of 
Wildlife Services.
    As part of USDA's Animal and Plant Health Inspection Service 
(APHIS), the Wildlife Services Division provides Federal leadership and 
expertise to resolve damage caused by wildlife. Over the last decade, 
Wildlife Services' mission has expanded beyond agricultural damage 
management to include minimizing threats to public health and safety, 
resolving wildlife conflicts in urban areas, protecting property, 
safeguarding threatened and endangered species, and preserving valuable 
natural resources, such as the Chesapeake Bay area.
    Wildlife Services provides assistance on a request basis. In 
addition to working with individuals, Wildlife Services works 
cooperatively with other Federal, State, and local governments that 
request assistance to manage wildlife damage. These cooperators share 
in the cost of many wildlife damage management activities conducted by 
Wildlife Services.
    Resolving damage caused by exotic bird species is one of many areas 
where Wildlife Services has seen an increase in requests for 
assistance. Some examples of exotic or non-native bird species include 
starlings, rock doves, house sparrows and mute swans.
    Starlings, native to Europe, are among the most problematic of 
exotic bird species. Population estimates for starlings now exceed 200 
million in North America. In 2002, Wildlife Services dispersed or 
removed approximately 2.7 million starlings, mainly at dairies and 
feedlots where in the winter the birds congregate for food and shelter. 
Damage occurs as the birds consume and contaminate feed with their 
droppings.
    Rock doves, native to the Mediterranean, are another exotic species 
that causes damage across the United States. In 2002, Wildlife Services 
dispersed or removed more than 69,000 rock doves, mainly from urban 
areas where the birds cause property damage and threaten public health 
and safety as their droppings accumulate on sidewalks and buildings. 
Researchers estimate that Americans spend more than $1 billion a year 
to control and clean up after the exotic bird. In addition, rock doves 
pose a serious risk to air travelers when the birds collide with planes 
taking off and landing at airports. In Hawaii, that threat led Wildlife 
Services to remove or disperse exotic chestnut mannikins and zebra 
doves from local airports.
    Wildlife Services has the legislative authority to manage damage or 
threats posed by exotic bird species, but we do not have the authority 
to manage the species themselves. In order to manage damage caused by 
species protected under the Migratory Bird Treaty Act, Wildlife 
Services must first receive a permit from the U.S. Fish and Wildlife 
Service. Starlings, rock doves, and house sparrows are not protected 
under the Act, and no permit is required.
    In the case of the mute swan here in Maryland, the Fish and 
Wildlife Service, the Army Corps of Engineers and the Maryland 
Department of Natural Resources requested that Wildlife Services assist 
in efforts to manage the mute swan. As you know, the mute swan, along 
with the nutria, a large rodent that has destroyed thousands of acres 
of pristine wetlands, is contributing to the destruction of the 
Chesapeake's marsh grasses, which filter the bay, provide a valuable 
food source for native species, and hold together the fragile marsh 
soil. Concentrations of mute swans have overgrazed bay grasses, which 
are important habitats for crabs, fish, and other wetland dependent 
species.
    Cooperative efforts of the aforementioned Agencies have helped 
control populations of nutria. Our cooperative efforts to manage the 
mute swan were halted by a preliminary injunction issued in a lawsuit 
brought by the Fund for Animals against the Fish and Wildlife Service 
in August of 2003. As Mr. Hogan mentioned in his testimony, that case 
was settled when the Fish and Wildlife Service agreed to:
      Withdraw its Environmental Assessment for the Management 
of Mute Swans in the Atlantic Flyway;
      Withdraw the related Finding of No Significant Impact; 
and
      Withdraw or terminate all depredation permits.
    This agreement did not alter the ability of the Fish and Wildlife 
Service to authorize Wildlife Services to remove mute swans on an 
emergency basis in order to protect public health and safety and 
prevent bird strikes at airports.
    I would like to conclude by saying that Wildlife Services has an 
excellent working relationship with the Fish and Wildlife Service and 
other State Agencies and we are prepared to continue to work with them 
in managing invasive bird species. Thank you again for the opportunity 
to talk to you about Wildlife Services' role in managing damage caused 
by exotic bird species.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Mr. Clay.
    Mr. Hindman. Am I pronouncing that correctly? Hindman. You 
may begin, sir.

   STATEMENT OF LARRY J. HINDMAN, WATERFOWL PROJECT MANAGER, 
            MARYLAND DEPARTMENT OF NATURAL RESOURCES

    Mr. Hindman. Thank you, Mr. Chairman, for the opportunity 
to testify before the Committee on the issue of Migratory Bird 
Treaty Act and exotic species. I am here to address issues 
surrounding the management of mute swans in our State. Mute 
swans are an invasive, non-native species that now inhabit the 
Chesapeake Bay in large numbers. Following the accidental 
introduction of five birds in 1962, the swan population grew 
slowly for two decades. However, after the mid-1980s, the swan 
population underwent dramatic growth and range expansion, 
rising to about 4,000 birds by 1999. At that rate of increase 
observed during that period and absent management, the swan 
population may have exceeded 30,000 birds by year 2010.
    In Maryland, mute swans are included in the statutory 
definition of wetland game birds. State law gives the DNR the 
authority to allow the taking of wetland game birds during open 
hunting season and to regulate the possession, sale, trade, 
exportation and importation of mute swans in Maryland. Mute 
swans feed primarily on submersed aquatic vegetation, commonly 
referred to as bay grasses or SAV. Recent food habits research 
has shown that swans in Chesapeake Bay feed primarily on 
widgeon grass and eelgrass, both important foods for native 
wintering waterfowl. While foraging, each bird consumes an 
average of about eight pounds of SAV daily. At this consumption 
rate, the 3,600 swans that exist in Maryland currently consume 
an estimated 10.5 million pounds of SAV annually. This level of 
grazing upon SAV by swans places additional stress upon this 
critically important habitat, especially at the local level 
which is already limited by other environmental factors.
    Although no quantitative assessment has been done in 
Maryland to determine the cumulative effects of grazing mute 
swans on SAV, studies of mute swans in several areas of the 
world have shown that these birds can negatively impact SAV 
communities. For example, a recent study conducted in Rhode 
Island found that mute swans overgraze SAV in shallow water and 
reduce SAV biomass by over 90 percent.
    Here in Maryland citizens frequently complain that 
concentrations of mute swans overgraze SAV. Mute swans have 
completely destroyed a number of bay grass planting projects. 
In the South River, mute swans destroyed plantings to improve 
water quality. The cost of replanting the site twice was about 
$4,700. And currently all SAV transplanting sites in the bay 
have to be fenced to prevent mute swan depredation.
    Large numbers of mute swans have caused State threatened 
species of colonial birds to abandon their island nest sites. 
The antagonistic behavior exhibited by mute swans toward other 
native wetland birds can prevent native waterfowl from using 
traditional nesting and feeding areas, and in some cases we've 
documented mute swans killing other wetland bird species. Mute 
swans also impact humans. They are one of the world's most 
aggressive waterfowl species. This large bird instills fear 
into citizens, preventing them from using their shoreline 
property and adjacent water. Their aggressive behavior in some 
cases exhibited as direct attacks can pose a safety risk, 
especially to small children.
    Because of the deleterious effect that mute swans have on 
SAV and other native wildlife, the mute swan population at or 
near its present level is in conflict with public policies 
aimed at restoring the Chesapeake Bay. In particular, the 
Chesapeake Bay 2000 agreement has a goal to preserve, protect 
and restore those habitats in natural areas vital to the 
survival and diversity of the living resources of the bay. Part 
of this goal is to protect and restore SAV. The Department 
views the mute swan population as an impediment to achieving 
these goals.
    To address these concerns, the DNR completed a statewide 
management plan that was adopted by the DNR secretary in April 
of 2003. The plan was developed with public input from a 
variety of sources, including the Citizens Mute Swan Task 
Force, citizen advisory Committees and hundreds of public 
comments. The plan has gained wide support by major 
conservation organizations. The goal of the plan is to manage 
the mute swan population at a level that minimizes the impacts 
of mute swans on native species and habitats.
    Prior to February 2001, all mute swans control activity 
conducted in Maryland was done under the authority of State 
law. The DNR conducted egg addling efforts aimed at reducing 
swan productivity and removed several hundred swans to protect 
threatened colonial waterbird colonies. Such control was done 
without a Federal permit. The DNR also provided citizens and 
other entities authorization to control mute swans to prevent 
depredation of private wetlands and to minimize nuisance and 
personal safety problems caused by swans.
    There are some positive aspects of the mute swans being a 
federally protected bird. One thing that it did it served to 
stimulate State wildlife agencies in the Atlantic Flyway to 
undertake an organized effort to control this species, leading 
to the development of the Atlantic Flyway Mute Swan Management 
Plan.
    But there are some negative aspects of being a Federal 
bird. An outgrowth of the pending legal challenges concerning 
the issuance of Maryland's depredation permit, the Fish and 
Wildlife Service has rescinded all Federal depredation permits, 
allowing the control of mute swans by State wildlife agencies. 
The Maryland DNR currently cannot conduct swan control 
activities. Failure to have a permit in hand by the spring of 
2004 nesting season will result in further population increase 
and thus will contribute to sustaining detrimental impacts from 
mute swans to native wildlife and their habitats.
    The Migratory Bird Treaty requires that the U.S. Fish and 
Wildlife Service maintain a viable population of migratory 
birds. This has led the Service to establish arbitrary State-
specific take limits for issuing depredation permits for 
controlling swans. In most States, these specific take limits 
place a constraint on swan management. The most efficient and 
cost effective method of reducing mute swans to achieve desired 
State population objectives is to remove a large proportion of 
the swan population as quickly and as humanely as possible. If 
a State wildlife agency is unable to remove enough swans in a 
single calendar year to achieve its statewide population 
objective, the Service should not prevent that action by 
imposing State-specific take limits for issuing depredation 
permits.
    Finally, there is a considerable uncertainty surrounding 
the issuance of Federal depredation permits. We have no 
assurance from the Fish and Wildlife Service that we will 
receive a Federal permit to continue swan control activities. 
Further delays in properly managing mute swans will cause 
negative impacts to native avian species and damage to critical 
bay resources. Thus we encourage you to consider to amend the 
Migratory Bird Treaty Act by excluding the mute swans from the 
list of migratory birds. This would return the primary 
management authority for managing mute swans to State wildlife 
agencies and allow them to effectively address the serious 
ecological and nuisance problems caused by this non-native 
species. Thank you for the opportunity to speak.
    [The prepared statement of Larry J. Hindman follows:]

Statement of Larry J. Hindman, Waterfowl Project Manager, Wildlife and 
       Heritage Service, Maryland Department of Natural Resources

    I am Larry J. Hindman, Waterfowl Project Manager for the Maryland 
Department of Natural Resources (DNR), Wildlife and Heritage Service. 
The Maryland DNR is a state government agency authorized to preserve, 
protect, enhance and restore Maryland's natural resources for the wise 
use and enjoyment of all citizens.
    Mute swans are an invasive, nonnative species that now inhabit the 
Chesapeake Bay in large numbers. In Maryland, mute swans are included 
in the statutory definition of Wetland Game Birds (Natural Resources 
Article [NR], Section 10-101). This law does not list the specific 
names of native species of waterfowl that winter and breed in Maryland, 
but only identifies ducks, mergansers, brant, geese, and swans as 
wetland game birds. This law was promulgated prior to the accidental 
introduction of mute swans in Maryland. State law gives DNR the 
authority to allow the taking of wetland game birds during an open 
hunting season, although no swan season has been opened in the state 
since 1918. Further, it gives the DNR the authority to regulate the 
possession, sale, trade, exportation, and importation of mute swans in 
Maryland (NR Article Section 10-903).
    Prior to a recent court ruling (http://www.II.georgetown.edu/Fed-
Ct/Circuit/dc/opinions/00-5432a.html), mute swans were not regulated by 
the U.S. Fish and Wildlife Service (USFWS). Primary management 
authority was held by individual states. Prior to February 2002, all 
mute swan control activity conducted in Maryland was done under the 
authority of State law (Natural Resource Section 10-206). This statute 
authorizes the DNR to reduce a wildlife population in any county, 
election district, or other identifiable area after a thorough 
investigation reveals that protected wildlife is seriously injurious to 
agricultural or other interests in the affected area. State law enabled 
the DNR to conduct mute swan control activities without a Federal 
Depredation Permit and allowed the DNR to issue authorization to 
citizens and other entities to control mute swans to prevent 
depredation of wetlands. It also allowed the DNR to authorize citizens 
to control swan pairs that caused nuisance and personal safety 
problems.
    Now with the U.S. Fish and Wildlife Service (USFWS) now having 
regulatory authority for the management of mute swans, state wildlife 
agencies must obtain a Federal Depredation Permit to conduct mute swan 
control activities. Because of recent legal challenges, Federal 
Depredation Permits issued to the Maryland DNR, and other state 
wildlife agencies, to control mute swan populations have been 
rescinded. These legal challenges may prevent the USFWS from 
authorizing the DNR to conduct mute swans control activities prescribed 
in Maryland's Statewide Mute Swan Management Plan. Without this 
authorization, the mute swan population can be expected to increase and 
expand its range. Further delays in properly managing mute swans will 
cause negative impacts to native avian species and damage to critical 
Bay resources.
    For this reason, we encourage Congress to amend the Migratory Bird 
Treaty Act by excluding the mute swan from the List of Migratory Birds. 
This would return the primary management authority for managing mute 
swans to state wildlife agencies and allow them to effectively address 
the serious ecological and nuisance problems caused by this nonnative 
species.
    The mute swan population in Maryland has been attributed to the 
escape of five captive birds along the Miles River in Talbot County 
during a spring storm in March 1962. Following this accidental 
introduction, the mute swan population grew slowly for two decades. 
However, after the mid-1980s, the swan population underwent dramatic 
growth and range expansion, rising to about 4,000 birds by 1999 (Figure 
1). At the rate of increase observed during this period, and absent 
management, the swan population may have exceeded 30,000 birds by 2010. 
The population decreased from 3,955 in 1999 to 3,624 in 2002. Egg 
addling and the removal of adult swans from Federal National Wildlife 
Refuges by shooting and authorized scientific collecting played an 
important role in the population change.
    Mute swans feed exclusively on submerged aquatic vegetation, 
commonly referred to as SAV or baygrasses. Recent food habits research 
has shown that mute swans in Chesapeake Bay feed primarily on wigeon 
grass and eelgrass, both important foods for native, wintering 
waterfowl. Further research has shown that each mute swan consumes 
about estimated 8.3 lbs. (3.789 kg wet weight) of SAV daily (Willey and 
Halla 1972). Fenwick (1983) determined that male swans in Chesapeake 
Bay consumed 34.6% 10.8 SD of their body weight per day, females 43.4% 
12.9 SD. Assuming that an adult/subadult mute swan consumes an average 
of 8 lbs. of SAV per day, we estimate that the current mute swan 
population in Maryland consumes an estimated 10.5 million pounds of SAV 
annually. This value is equal to about 10% of the total SAV biomass in 
the Bay (2001 Survey). This level of swan herbivory upon SAV, places 
additional stress upon this critically important habitat, especially at 
the local level, which is already limited by other environmental 
factors.
    SAV is critical to the health and well-being of a myriad of Bay 
organism. SAV protects water quality from pollutants, introduces oxygen 
into the Bay, prevents erosion, and offers food and shelter for fish, 
shellfish, invertebrates and waterfowl. By way of example, the density 
of juvenile blue crabs is 30 times greater in SAV beds than in non-
vegetated areas of the Bay. SAV has declined throughout the Bay because 
of water quality problems, and the large mute swan population is a 
threat to the native grass beds that remain, especially the new beds 
planted in restoration efforts.
    Although no quantitative assessment has been done in Maryland to 
determine the cumulative effects grazing mute swans on SAV, studies of 
mute swans in several areas of the world have shown that these birds 
can negatively impact SAV communities.
    For example, in Europe, mute swans have been known to completely 
remove individual plant species from some wetlands, eliminating this 
food source for other waterfowl that feed on the same SAV species.
    In high concentrations, mute swans can overgraze an area. In a 
recent Rhode Island study, consumption of SAV by mute swans was 
indirectly measured by comparing control and exclosure plots. Findings 
indicated that mute swans overgraze SAV in shallow water (0.5 m) and 
can reduce SAV biomass by 92-95%.
    Maryland citizens frequently complain that concentrations of mute 
swans overgrazed some SAV beds reducing the availability of SAV to 
native wildlife and reducing recreational crabbing and fishing 
opportunities. Mute swans have completely destroyed a number of bay 
grass planting projects (Chesapeake Bay Foundation's letter to 
Maryland's Secretary of Natural Resources). Presently, all SAV 
transplanting sites in the Bay have to be fenced to prevent mute swan 
depredation. The South River Association reports that Mute Swans have 
destroyed plantings of saltmarsh cordgrass (Spartina alternaflora) made 
to restore wetlands and improve water quality in the South River. The 
cost of replanting the site twice was about $4,700.
    Aside from simple biomass of SAV eaten by mute swans, there are a 
number of specific concerns about the effects of swan eating habits 
upon the recovering SAV populations in Chesapeake Bay. Swans have 
different, more destructive, feeding habits than do other species of 
waterfowl. This behavior involves disturbing the sediment to loosen it, 
then feeding on subterranean tubers used as asexual reproductive 
structures by SAV. Mute swans have also been observed pulling and 
consuming intact plants rather than feeding only on plant parts, as do 
native waterfowl. Mute swans uproot large quantities of aquatic plants 
and can disturb much more vegetation than they actually eat. Through 
the partial or complete destruction of individual SAV beds, this 
feeding behavior could impact future SAV growth, resulting in reduced 
food stocks for native waterfowl.
    The upper Chesapeake Bay region is one of the most important areas 
in North America for migrating and wintering waterfowl. One of the 
reasons the Bay has held such attraction for these birds has been the 
quantity and variety of SAV species. Native species of SAV in the Bay 
have evolved concurrently with native waterfowl, and the timing of 
feeding by native waterfowl does not overlap temporally with SAV 
reproduction.
    Unlike other swan and waterfowl species, most mute swans do not 
migrate during the winter months, and rarely move more than 30 miles 
during their lifetimes. Consequently, mute swans remain in and about 
the Bay feeding upon and disturbing SAV year-round. Mute swans feed 
extensively on above-ground biomass before tubers have begun to form, 
thus preventing the plants from forming these important reproductive 
structures and potentially eliminating the resource from some areas.
    Certain wintering waterfowl species dependent upon SAV have 
declined in Chesapeake Bay and remain suppressed due to the reduced 
abundance of SAV. Declines in SAV abundance appear to correlate with 
declines in local black duck (Anas rubripes) abundance. The loss of SAV 
over the past several decades has prompted the near abandonment of Bay 
waters by redheads (Aythya americana), leaving only a remnant 
population today. Population trends suggest that habitat degradation in 
Chesapeake Bay, especially loss of SAV, may be the principal cause of 
the decline of the Bay's canvasback (Aythya valisineria)) population.
    Canvasbacks prefer to eat tubers, seeds and vegetative matter of 
wild celery plants and other SAV when they arrive from the north to 
overwinter in Chesapeake Bay. Mute swans also feed preferentially on 
wild celery in the Bay. However, they do so long before the canvasbacks 
begin their migration, giving mute swans a substantial temporal feeding 
advantage. Probably more significant than the actual food removal 
implications, mute swans consume wild celery seed pods before the seeds 
inside have completed their development, resulting in the systematic 
loss of entire crops of seeds from wild celery beds. This phenomenon 
has been recorded in the Gunpowder and Potomac Rivers. Bay researchers 
who collect seeds for artificial propagation have experienced 
considerable difficulty locating mature seedpods for this reason.
    Because of the deleterious effect that mute swans have on SAV, a 
Bay-wide mute swan population above, at, or near its present level is 
in conflict with public policies aimed at restoring the Bay. In 
particular, the Vital Habitat Protection And Restoration section of the 
Chesapeake 2000 Agreement--an agreement and partnership entered into in 
2000 between the U.S. Environmental Protection Agency, the Chesapeake 
Bay Commission, the states of Maryland, Virginia and Pennsylvania and 
the District of Columbia for the protection and restoration of the 
Bay--has as a stated goal to ``Preserve, protect and restore those 
habitats and natural areas vital to the survival and diversity of the 
living resources of the Bay and its tributaries.'' Part of this goal is 
the protection and restoration of SAV. Because of the vital role that 
SAV plays in preserving water quality and in providing food and shelter 
for Bay organism, preservation and restoration of SAV is vital to the 
overall health of Bay ecosystems. Further destruction or degradation of 
SAV caused by mute swans--even if limited to localized areas--will 
certainly compromise the goals of the Chesapeake 2000 Agreement.
    The effect that mute swans have had--and potentially will have--on 
native wildlife within the Bay is best illustrated by the impact that 
swans have had on the least tern (Sterna antillarum) and black skimmer 
(Rynchops niger) populations in the Tar Bay area of Dorchester County, 
Maryland, (least terns and black skimmers are both listed as State 
threatened species). Tar Bay is a shallow tidal bay with dense beds of 
SAV, which, historically, has been a site for colonies of least terns 
and black skimmers. Between 1985 and 1987 approximately 60 to 250 
nesting pairs of least terns were located in Tar Bay; in 1987, the 
nesting least terns in Tar Bay accounted for 49% of the total nesting 
population statewide. In 1985, 13 nesting pairs of black skimmers were 
located in Tar Bay--one of only two small colonies of nesting skimmers 
in the Maryland portion of the Bay.
    In the late-1980s, a molting flock of between 600 and 800 mute 
swans began congregating in the Tar Bay area. During their molt, it was 
observed that swan tracks were completely covering tern and skimmer 
nesting areas and crushing tern and skimmer eggs into the sand. These 
disturbances continued into the early-1990s to the point were the 
number of nesting pairs of terns and skimmers declined. By 1993, the 
colonies were abandoned (colonial nesting waterfowl, such as terns and 
skimmers, will abandon colonies if disturbance is frequent or severe). 
During the mid-1990s, DNR and the USFWS reduced the size of the mute 
swan molting flock in the Tar Bay area, resulting in the return of a 
moderate population of least terns. By 1999, less than 25 nesting pairs 
of terns were present. No nesting pairs of black skimmers were present.
    The mute swan is also one of the world's most aggressive species of 
waterfowl. Breeding mute swans are known to aggressively protect their 
nets and young from all perceived threats. Some breeding mute swan 
pairs may also threaten or attack humans, such as swimmers, small 
children or those in small watercraft. Mute swan aggression may also be 
directed at pets. In Maryland, aggressive mute swan pairs have become a 
nuisance, preventing people from using shorelines where swans 
vigorously defend their nest during the breeding season.
    Beginning in 2001, the DNR initiated a more concerted effort each 
spring to addle mute swan eggs to slow the growth rate of Maryland's 
mute swan population. This work was continued in 2002 with a Federal 
Depredation Permit obtained from the U.S. Fish and Wildlife Service. In 
2002, 232 mute swan nests containing 1,243 eggs treated. In 2003, 276 
mute swan nests containing 1,449 eggs were treated. An additional 130 
adult swans were removed by shooting in 2003 before further mute swan 
control was suspended by a lawsuit filed against the USFWS for issuing 
Maryland DNR a permit that included lethal control.
    In 1999, the Maryland DNR initiated the development of a mute swan 
management plan. The DNR Secretary assembled a Mute Swan Task Force, 
which included citizen members of the DNR ``s Migratory Game Bird 
Committee and experts in animal welfare and bay ecology. In January 
2001, a summary of mute swan information and the Mute Swan Task Force 
recommendations to the DNR were made available for public review. More 
than 800 comments were received on the Mute Swan Task Force 
recommendations during the 60-day public comment period.
    The cornerstone of the Mute Swan Task Force recommendations was the 
protection of native species and their habitats from the effects of 
mute swans. The Task Force recommended that the DNR establish Swan-Free 
Areas, areas where mute swans would be excluded or removed to protect 
critically important habitats and wildlife resources. The DNR Waterfowl 
Advisory Committee endorsed the Task Force recommendations, but further 
recommended a rapid reduction of the mute swan population and the 
elimination of State protection for the species. The recommendations 
provided by the advisory committees, along with biological and wildlife 
management principles and public input, were considered in the 
preparation of a Draft Statewide Mute Swan Management Plan. More than 
400 comments were received from the public on the draft plan during a 
60-day public comment period. In April 2003, the Statewide Mute Swan 
Management Plan was adopted by the DNR Secretary (copy attached).
    The Statewide Mute Swan Management Plan directs the DNR to reduce 
the mute swan population in the Chesapeake Bay to a level that 
minimizes damage to SAV beds and eliminates the threat they pose to 
native bird species. Local and national environmental groups, including 
the National Audubon Society, the Chesapeake Bay Foundation, the Severn 
River Association, the South River Federation, the American Bird 
Conservancy, and others, have endorsed the plan.
    In implementing the plan, the Maryland DNR has increased public 
outreach to facilitate the understanding of the status of the mute swan 
population in Maryland, its impacts on the Chesapeake Bay ecosystem, 
and the problems it creates for humans, critically important habitats 
and native wildlife populations.
    State regulations are currently being developed to prevent the 
release and escape of mute swans into the wild. The DNR add conditions 
to federal and state permits that prohibit the sale, trade, barter, and 
importation of mute swans, or their eggs, in Maryland. In the future, 
the DNR will not authorize any additional possession of mute swans, 
except for scientific or educational purposes.
    The DNR has also cooperated with other 22 states and provinces 
within the Atlantic Flyway Council to complete an Atlantic Flyway Mute 
Swan Management Plan (adopted July 2003). The purpose of the plan was 
to facilitate efficient mute swan population management. The DNR also 
provided input on the U.S. Fish and Wildlife Service's Draft 
Environmental Assessment for Managing Mute Swans in the Atlantic Flyway 
and is participating in the development of a region-wide Chesapeake Bay 
Mute Swan Management Plan for managing mute swans.

    [Figure 1 follows:]
    [GRAPHIC] [TIFF OMITTED] T0953.001
    

    Figure 2. Swans are present in all major tributaries of the Bay. 
The largest circle in the attached map of the distribution of mute 
swans during August-September,2002, represent 472 swans.

    [Figure 2 follows:]
    [GRAPHIC] [TIFF OMITTED] T0953.002
    
                                 ______
                                 
    Mr. Gilchrest. Thank you, Mr. Hindman.
    Mr. Hogan, what does--how does U.S. Fish and Wildlife 
Service define the difference between an exotic bird and a 
native bird? Is there statutory language that defines that?
    Mr. Hogan. No, there is no statutory language, but we 
generally refer to a native species as one that as occurring 
naturally in an ecosystem or in an environment, as opposed to 
an exotic species which got here from unnatural purposes, 
whether it be a purposeful release or an unintentional release 
by individuals, by people. So in other words, a native species 
are those that are here naturally, and an exotic species, as 
the case of the mute swans since we are talking about that, is 
one that was either intentionally or unintentionally released 
into the environment.
    Mr. Gilchrest. So there has never been and you don't 
foresee a specific problem with the definition in a regulatory 
sense or a statutory sense or a court challenge to a 
distinction between a native and an exotic.
    Mr. Hogan. Well, I can't say that there will never be, sir. 
I think, certainly, given what has developed in the case of the 
mute swans that certainly is likely and that may be something 
we would consider as to codifying in either regulation or 
potentially statute the definition of native versus non-native, 
but it has generally been accepted that native--and there are 
definitions also for invasive species, which is a species that 
causes a detrimental impact on an ecosystem as opposed to being 
just exotic, not native or not natural to the ecosystem. They 
are one step further, they actually cause damage to the 
ecosystem. So there is a considerable Federal effort, as you 
well know, to control invasive species, whether it be certain 
species of birds or a case you know well, nutria, an exotic 
invasive species.
    Mr. Gilchrest. What steps does U.S. Fish and Wildlife 
Service go through to take a species, in this situation a bird 
species, from an exotic to designate that exotic as invasive?
    Mr. Hogan. Well, it would be a--under the Lacey Act, we 
have the ability to list something as injurious, and by doing 
so we can prohibit the import of that species to the U.S., and 
that would be through a formal rulemaking process we would do 
that. In the case of mute swans, I guess the horse has already 
left the barn. It is a little late to prohibit the import, so 
once the species is here we really don't have a lot of ability 
to control it through the Lacey Act, through the listing of it 
as injurious. It is really something that we can hopefully do 
in the future, and, as you know, there are lots of efforts at 
the Federal level to prevent the importation of a lot of these 
invasive non-native species to the U.S. to try and catch them 
before they become established.
    Mr. Gilchrest. So there is nothing in Federal statute to 
prohibit mute swans from further importation into the United 
States?
    Mr. Hogan. Right now we don't have them listed as 
injurious. It is certainly something we could consider if we 
thought that there was a--continued to be a problem with new 
birds being introduced in the U.S., but the best information we 
have is that the problem is really the established birds and 
the birds that continue to breed. There doesn't seem to be any 
indication of a real problem with new birds being brought into 
the country.
    Mr. Gilchrest. Have you had ongoing discussions over the 
last decade or so with your Canadian counterparts with exotic 
birds, invasive species and mute swans in particular?
    Mr. Hogan. We certainly do have discussions with them 
regularly on a number of issues under the MBTA and our treaty 
with them, and the issue of invasives has come up. We typically 
have--we kind of come to an understanding of how each country 
implements the treaty within their own country and our best 
understanding is that the Canadians are comfortable with our 
interpretation of exotic and native species in the U.S., just 
as we are comfortable with the way they deal with exotic and 
non-native species in their country.
    Mr. Gilchrest. Has mute swans come up as an issue 
specifically as an invasive?
    Mr. Hogan. Yes, sir. Of late, since the actions in the 
courts, we certainly have discussed that with the Canadians. 
They are certainly aware of it and know of kind of where we 
have been and have been supportive of our approach to dealing 
with mute swans to date.
    Mr. Gilchrest. If you designated mute swan as invasive--has 
the Service already designated mute swans as invasive?
    Mr. Hogan. We don't actually have a formal designation 
process to designate something as invasive. We do, under the 
Lacey Act, to designate it as injurious. I know it is kind of 
splitting hairs but that is something in which, again, we could 
prevent the importation or interstate commerce. We have not 
done that with mute swans.
    Mr. Gilchrest. But mute swans have been designated, if I 
could use that word, as injurious?
    Mr. Hogan. They have been considered invasive. We have 
never gone through a formal process. Invasive is, to the best 
of my knowledge, not a formal designation. It is kind of an 
understanding among biologists and others. Injurious is 
actually a designation under the Lacey Act in which we would go 
through a rulemaking process and propose that as a species 
listed as injurious we would prevent the importation of that 
species.
    Mr. Gilchrest. Have you gone through that process with mute 
swans?
    Mr. Hogan. No, sir.
    Mr. Gilchrest. Is there any reason to go through that 
process to designate mute swans as injurious by the Fish and 
Wildlife Service, and would that in any way violate any of the 
four treaties that we have under the Migratory Bird Treaty Act?
    Mr. Hogan. I can't speak to your second question as far as 
I don't believe it would violate any of our treaties to list it 
as injurious because at least in our discussions, our informal 
conservations with our counterparts in Canada, they are 
supportive of the way we basically view all exotic, non-native 
species under the Migratory Bird Treaty Act. As far as whether 
or not we would consider listing it as injurious, we don't have 
a great deal of information, to my knowledge, that there is a 
problem with new birds coming into the country. Really our 
efforts to date have been targeted at controlling the birds 
that are already here. So we have not gone through that formal 
process of listing swans, mute swans in this case, as an 
injurious species, like we have with other species like the 
snakehead, for example, here in Maryland. We listed that as 
injurious and have prevented the importation for fear that the 
real source of the problem, fish in this case, were fish that 
were being imported into the United States, not a population 
that was already here.
    Mr. Gilchrest. Well, you went through the snakehead process 
rather quickly. So you don't--I guess what I am trying to get 
at is U.S. Fish and Wildlife can state for the record that mute 
swans are injurious or damaging certain habitats around the 
country and in this hearing in particular the Chesapeake Bay, 
both in SAVs and disrupting habitat for other bird species. So 
can I say that the U.S. Fish and Wildlife Service has said on 
the record that mute swans are--have a degrading effect on the 
Chesapeake Bay?
    Mr. Hogan. Yes, sir. Yes. I would be hesitant to say that 
we would officially call them injurious, because, again, that 
would actually take a formal rulemaking process through the 
Lacey Act, but we can say with no equivocation that we feel 
that they are negatively impacting the habitats of the 
Chesapeake Bay.
    Mr. Gilchrest. Is there a reason that the Service has not 
gone through that process with the Lacey Act?
    Mr. Hogan. Mainly because again we don't really see the 
problem as being new birds coming into the country. It is birds 
that are already here, and our efforts that--when we worked 
with the State of Maryland, or attempted to, it was more of an 
effort of controlling the birds that were already here in the 
Chesapeake Bay as opposed to trying to prevent new birds from 
being brought in from overseas.
    Mr. Gilchrest. Could it be considered an aquatic nuisance 
species, an Aquatic Nuisance Species Task Force, as nutria was 
declared an aquatic nuisance species last year?
    Mr. Hogan. Yes, sir.
    Mr. Gilchrest. So mute swans could be declared an aquatic 
nuisance species. What would it take to do that?
    Mr. Hogan. If I could, would you mind if I confer with my 
colleague for 1 second just to make sure I give you the--
    Mr. Gilchrest. Sure.
    Mr. Hogan. --exact correct answer on this one? I can't tell 
you for certain, sir, that I know the exact process that we go 
through to list an aquatic nuisance species. I know it is not 
as, for lack of a better word, onerous as a formal rulemaking 
process under the Lacey Act for an injurious species, but that 
is certainly something that I would be glad to supply to you 
following the hearing, for the record, as how we would go about 
the process of listing it as an aquatic nuisance species.
    Mr. Gilchrest. I see. Thank you. Would you make any 
recommendation--if the Service feels that this exotic species, 
this mute swan is in fact invasive, is degrading water quality, 
is an aquatic nuisance species, do you have any recommendations 
for us as a Congress to help you deal with that issue?
    Mr. Hogan. Well, let me start by staying we certainly 
support everything we have done to date and feel that what we 
attempted to do, both by issuing the depredation permits and 
working with the State of Maryland to control the birds, was 
the right course of action. Unfortunately, the courts did not 
agree and we are abiding by the court's decision. We certainly 
believe that it is not in the best interest of wildlife or the 
American taxpayer to use our limited dollars that we have for 
migratory bird conservation in this country to protect a bird 
that is non-native, an exotic species, when there are so many 
other issues that we need to deal with with our native species. 
Unfortunately, though, sir, we are at a point where we feel 
like we just do not have the resources to dedicate toward going 
through the next stage in the process which would be a full 
blown environmental impact statement.
    Mr. Gilchrest. I see.
    Mr. Hogan. And we are fearful that we could go through that 
long and expensive process, take resources away from real 
pressing concerns of native species, migratory birds in this 
country and end up in the same spot, so we have made a decision 
that at this point anyway we are not going through with anymore 
environmental reviews. We would certainly be interested in 
working with you and help you in any way that you needed help 
in trying to address this issue and provide some opportunity to 
not have a non-native exotic species protected under the 
Migratory Bird Treaty Act.
    Mr. Gilchrest. Thank you. So do you feel that the Migratory 
Bird Treaty Act, the language in that act, does not or does not 
effectively deal with exotic species?
    Mr. Hogan. Well, I think certainly not knowing what was on 
the minds or what was the hot issues back in the early 1900s 
when the treaty was ratified and we implemented the Migratory 
Bird Treaty Act, the way that species were listed back then was 
by family groups. The family group, Anatidae, which is 
waterfowl, ducks, geese and swans, were listed as protected 
under the Migratory Bird Treaty Act. We do have two species of 
swans that are native to the United States: The tundra swans 
which are also present here in the Chesapeake Bay, and the 
trumpeter swans. So, certainly--I certainly can't speak for the 
people who were working on that issue back some, oh, close to 
80 years ago or more, but I don't think they envisioned a 
problem with a non-native species. I think they listed 
Anatidae, the family of waterfowl, as a natural family group to 
be protected under the MBTA.
    I can say that I think that as we developed treaties in 
more recent times with Russia and with Japan, we went to the 
extent of listing individual species. So we certainly have 
changed the way we list birds when we have new treaties, and I 
would say that if we were to renegotiate or if we were just now 
negotiating a treaty with the Canadians if the current treaty 
did not exist, I can't say for certain but certainly I would 
think there would be a great deal of discussion of listing 
individual species as protected versus listing whole family 
groups. But I just think it wasn't envisioned by the authors 
and sponsors of that back when it was ratified that this would 
become a problem.
    Mr. Gilchrest. So do you feel with increased knowledge, 
with increased problems with invasives, exotics, from pathogens 
to fish to a whole range of species that have crisscrossed the 
United States, in this one particular instance with the 
Migratory Bird Treaty Act, can the Service effectively deal 
with exotics and invasives with a regulatory change or do you 
think the Act needs to be changed by congressional statute?
    Mr. Hogan. Well, I don't--it appears that we have 
exhausted--I suppose we could take some more efforts 
regulatory--in a regulatory nature to address this issue, but 
to date they have been unsuccessful, and we have decided as a 
service that given our limited resources, it is not a priority. 
We certainly would not object to efforts by the Congress to 
relook at this issue and say that maybe there needs to be a 
legislative fix.
    Just as a side note, for example, there is a species of 
goose, called the barheaded goose, which is an Asian species, 
that is not specifically listed in our treaty with the 
Japanese. Certainly understanding that, as I said, when we 
negotiated the treaty with the Japanese we listed individual 
species. If we had negotiated a similar type of treaty when we 
listed family groups, that family of geese would be protected 
under the MBTA. So you could certainly argue that as we learned 
more about native and non-native species, we modified the way 
we negotiated treaties. So we have certainly changed the way we 
have done business, but I think as far as back to your original 
question, from a regulatory approach, we just feel like we are 
kind of frustrated at where we have gone and the amount of 
resources that have already been expended to really no avail at 
this point.
    Mr. Gilchrest. Well, we don't want the Service to be 
frustrated.
    Mr. Hogan. Well, we appreciate that.
    Mr. Gilchrest. Dr. Robbins, can you tell us from your 
perspective some of the challenges facing the conservation of 
native songbird species in the Americas and how exotic birds 
have threatened the native species?
    Dr. Robbins. Yes. Back in 1966, I designed a continent-wide 
survey, we call it the breeding bird survey, where annually we 
count all species of birds. We have volunteers in every State 
except Hawaii who go out and count these birds every year, and 
we now have like 3,000 people that go out and count birds along 
a random 50-stop route each year, and this gives us a wonderful 
data base for keeping track of populations of all species of 
birds in North America.
    And this survey has been showing that quite a few of our 
species are declining, especially those that migrate to the 
tropics for the winter. There are many factors affecting these 
birds, it is not an easy matter of tying in a particular event 
with a decline of a particular species, because there are so 
many factors affecting the populations of these birds, but 
there is a general concern because so many of our birds over 
the last several decades have been declining in numbers. And of 
course there are so many things going on, habitat loss and 
fragmentation, habitat alteration that permits invasive native 
species, such as cowbirds, to greatly expand their breeding 
range. And what happens is cowbirds lay an egg in the nest of 
one of the other species. Generally, the host species is not 
able to raise young from that nesting, so this is a big problem 
that has been increasing as the native cowbirds has been 
increasing its range.
    We have problems with casualties during migration as birds 
collide with tall buildings, communications towers, wind 
turbines and so forth, increasing predation from feral cats, 
which is a growing problem, environmental contaminants, 
collisions with vehicles, windows, airplanes, so forth, and 
competition with exotic species, competition for food and 
particularly for nesting sites. I am not talking specifically 
about the mute swan here, I am talking about other introduced 
birds, such as starlings, house sparrows, rock doves and so 
forth. Unfortunately, all these effects are additive.
    The particular concern for a lot of the songbird species, 
which is what the question related to, is the competition for 
nest sites. Starlings and house sparrows are usurping nest 
sites required by quite a few of our breeding species. Does 
that answer the question?
    Mr. Gilchrest. I think it does, yes. So exotics have a 
detrimental effect on native species of migratory birds--
    Dr. Robbins. That is correct.
    Mr. Gilchrest. --but so does just about every other human 
activity.
    Dr. Robbins. That is correct.
    Mr. Gilchrest. Is there any plan--is there anything--I have 
some neighbors--I live out in the country on the Eastern Shore 
and some of my neighbors who are in their late eighties put out 
nesting boxes for Native American birds. And whenever they see 
something that they consider a cowbird, well, they pop those 
cowbirds off with .22s. I know that may not be a plan for the 
Service or for USGS, but is this story out of the bag, the 
horse is out of the barn? Is there nothing we can do with some 
of these exotic songbirds and their wreaking havoc or at least 
certain problems on Native American migratory species?
    Dr. Robbins. Well, I don't think we are going to change the 
habits of the invasive exotics. Actually, the starling and the 
house sparrow are declining in numbers in their native habitat 
in Europe, and the breeding bird survey shows some decline 
here. They have been spreading their range until they now nest 
in every State, except Hawaii. But even here the populations of 
the species have been declining slightly. In the case of the 
house sparrow, I think it is because they were relying on the 
droppings from the horses, and since the horses have declined, 
in general, the house sparrow has declined, in general. But we 
still have an enormous problem for birds like the bluebird, 
which is a cavity-nesting bird. The purple martin is another 
familiar bird to a lot of people, and their nest box cavities 
as well as--well, practically all of them nest in nest boxes 
now, but there is a lot of competition with starlings and house 
sparrows in the case of this bird. There are problems with the 
great-crested flycatcher, another native songbird, in that they 
are driven from their nest holes by starlings and house 
sparrows. Problems with the red-headed woodpecker, for example, 
and the flicker where these species have declined.
    Mr. Gilchrest. What is the problem with the red-headed 
woodpecker?
    Dr. Robbins. Pardon?
    Mr. Gilchrest. The problem with the red-headed woodpecker 
is what?
    Dr. Robbins. Starlings taking over their nesting cavities.
    Mr. Gilchrest. Wow.
    Dr. Robbins. Woodpeckers drill holes in the trees to nest, 
and as soon as they get a hole completed, the starlings drive 
them out of it. Even though starlings are smaller, they are 
more aggressive. A group of starlings would gang up on them and 
chase the woodpeckers away. Used to be a common bird in most of 
Maryland and now it is gone from all but the more remote 
places.
    Mr. Gilchrest. The red-headed woodpecker.
    Dr. Robbins. The red-headed woodpecker, right.
    Mr. Gilchrest. Well, thank you very much, Dr. Robbins.
    Mr. Clay, could you tell us what your role is in managing 
exotic bird species and under what authority do you do that?
    Mr. Clay. Yes, sir. Our authority is technically in the Act 
of March 2, 1931. It is more commonly referred to as Animal 
Damage Control Act of 1931. It gives us legislative authority 
to deal with any type of wildlife, or it gives the Secretary of 
Agriculture wide responsibility to take any action she deems 
necessary to control any type of problematic wildlife species.
    Mr. Gilchrest. Now, when you create a plan to control those 
wildlife species or those exotics or whatever, do you first 
need to be given authority or what is your relationship with 
Fish and Wildlife Service regarding your role in eliminating 
some exotic species or some animal that is causing a problem?
    Mr. Clay. If it is a migratory bird that is protected under 
the Migratory Bird Treaty Act, we would need to get a permit 
from the Fish and Wildlife Service if it is causing a problem. 
If it is not listed under the Migratory--or not protected under 
the Migratory Bird Treaty Act, our program works on a request 
basis, so if we get a request from, say, a State or Federal 
wildlife agency, then that is all we need to go out and do the 
work on that. It depends on the particular species, the size of 
the area, whether or not we need to do an environmental 
assessment or possibly an environmental impact statement or if 
it is just a local problem of starlings causing problems, let's 
say, an individual feedlot, there are approved toxicants 
registered by the Environmental Protection Agency that we use 
in those situations. It just depends on the size of the 
problem, the extent of the problem and the bird species that is 
involved in it.
    Mr. Gilchrest. What would the difference be as far as 
nutria and mute swans are concerned with your role?
    Mr. Clay. Well, first we need a request for assistance, 
which we have gotten from both the U.S. Fish and Wildlife 
Service and the Maryland Department of Natural Resources. We 
have the equipment, the personnel and the expertise to go out 
and do that for them, and in this situation with the nutria 
project here in Maryland, we are working cooperatively with 
both Fish and Wildlife Service and the Maryland Department of 
Natural Resources to control the nutria in the Chesapeake. As 
far as exotic bird species, a lot of times we will get requests 
if they are not protected under the Migratory Bird Treaty Act 
we may get a request directly from a State wildlife agency. We 
may get a request from a homeowner association or private 
individuals. It just depends if it is a localized problem or 
more geographic in nature.
    Mr. Gilchrest. So if you get a request from a homeowners 
association, do you need to do anything with the State 
Department of Natural Resources, with the U.S. Fish and 
Wildlife Service? How do you make a decision as to whether you 
just went and fixed what they consider a problem or you 
communicate with these other agencies?
    Mr. Clay. Well, if the bird is not protected, we would work 
at the request of the homeowners association with the private 
individual, but we would also work closely with the Fish and 
Wildlife Service and the State wildlife agency to make sure 
they had no objections to the type of work being done. We have 
cooperative agreements with the State wildlife agencies and the 
Fish and Wildlife Service so we work very closely on these 
issues.
    Mr. Gilchrest. Which exotic bird species do you most often 
have to control or you most often deal with?
     Mr. Clay. We get probably requests for assistance for 
starlings, European starlings most, but we also get requests 
for a number of exotic bird species, primarily at airports, and 
a lot of these are in States like Hawaii where a majority of 
the birds that are present are non-native there. But I would 
say starlings overall because of both public health and safety 
threats from their droppings and because of contaminating and 
consuming livestock feed across the United States at the 
feedlots and dairies would probably be the one exotic bird that 
we get the most complaints and the most requests for assistance 
for.
    Mr. Gilchrest. And how do you control starlings again?
    Mr. Clay. Starlings are--there is a chemical that is 
available called the RC1339. It is a chemical toxicant, but in 
addition there is also traps for starlings, of course shooting 
is an option. Again, it depends on where it is and the 
situation.
    Mr. Gilchrest. How is the chemical used?
    Mr. Clay. It is mixed with grain bait. You pre-bait the 
grain bait for several days to allow the starlings to come in 
and feed on it, and then at a predetermined day you go in there 
and mix it with this chemical toxicant and the birds consume it 
and die within a day or two.
    Mr. Gilchrest. So the starlings are aggressive enough so 
that other species of birds are less likely to come in and pick 
at that grain?
    Mr. Clay. Yes, sir. It is primarily where we go in and do 
these type of activities it is almost 100 percent starlings 
there or other type of blackbirds that may be causing a problem 
that are also--where the chemical is also labeled for those 
control. There is really not much of a problem at all with non-
target species. In fact, part of our procedure requires us to 
while we are prebaiting without the chemical for several days 
in advance to visually observe the area during prebaiting and 
make sure that there are no non-targets present.
    Mr. Gilchrest. What size--is there an average size flock 
for starlings? Are there 100 birds, hundreds of birds?
    Mr. Clay. I don't know if there is an average size flock 
but the flocks I have seen can be over 100,000 birds in some 
areas. They just literally will cover the ground in feedlot 
areas where the ground is just black with them. I mean it 
depends on the size of the population in the geographic area, 
but starlings are flocking birds and a lot of times they will 
get into huge flocks.
    Mr. Gilchrest. How long have you been aware that mute 
swans, at least by some, have been considered a problem in the 
Chesapeake Bay region?
    Mr. Clay. Probably for the last 10 years. And each years 
there is more and more concern, as Mr. Hogan expressed, on the 
interest of exotic and invasive species, in general, but the 
last several years we have received more and more requests for 
assistance with mute swans, but it has been generally in the 
last 10 years or so that I have been aware of it.
    Mr. Gilchrest. Thank you, Mr. Hindman--Mr. Clay, sorry. Mr. 
Hindman, how would you--does the State of Maryland have a 
definition for native bird and exotic bird and invasive bird?
    Mr. Hindman. I can't really answer that. I can get an 
answer from our agency, but I can't answer that.
    Mr. Gilchrest. What would you consider mute swans?
    Mr. Hindman. Well, in our State, mute swans are legally 
classified as a wetland game bird. That statute is broad in 
that unlike the Migratory Bird Treaty that lists individual 
birds, it protects and allows us to regulate swans, in general, 
ducks, geese, rails, it is not specific, but they are in that 
category considered wetland game birds.
    Mr. Gilchrest. If the mute swan is considered a wetland 
game bird, is that the same classification you give Canada 
geese?
    Mr. Hindman. Yes, sir.
    Mr. Gilchrest. Was there ever a hunting season on mute 
swans like there are for Canada geese or some resident geese?
    Mr. Hindman. No, sir. There has never been a swan hunting 
season in our State since enactment of the treaty.
    Mr. Gilchrest. Would there be a problem with enacting a 
hunting season on mute swan given the fact that they might be 
difficult to distinguish between tundra swans?
    Mr. Hindman. Well, we considered that option in the 
development of our statewide management plan. It can be done if 
we are provided Federal frameworks from the U.S. Fish and 
Wildlife Service, but we have been told that they need to do an 
environmental impact statement to provide frameworks to States 
in the Atlantic Flyway. That aside, for a mute swan hunting 
season to be effective as a means of a population control, it 
probably should coincide with existing duck and goose hunting 
seasons, simply because they are not really a sporting bird, 
they don't fly around a lot, and they would probably be taken 
incidental by hunters while hunting ducks and geese. One could 
structure a season outside the time when native swans do occur 
here, but we didn't believe that a hunting on mute swans would 
be a very effective management tool.
    Mr. Gilchrest. How do you define exotic versus native?
    Mr. Hindman. Well, I mean, basically, birds that originated 
in the State I consider to be native. And birds that are 
introduced or brought here, as mute swans were, I consider them 
to be exotic.
    Mr. Gilchrest. What do you consider the best method for 
reducing--do you think eliminating mute swans from the 
Chesapeake Bay region, especially the Maryland waters, is a 
prudent thing to do, a good idea?
    Mr. Hindman. Well, we think it is prudent to reduce their 
numbers to a level where the population was prior to the mid-
1980s, when the population was small and we didn't see the 
ecologically harm that the birds were causing. But we think it 
is prudent. Our Department is committed to reducing the 
population to that level, and we think it is consistent with 
the bay policy to do that.
    Mr. Gilchrest. What would that level of population be?
    Mr. Hindman. Well, we are not real sure, but based upon our 
experience when we had fewer than 500 birds in our State, we 
didn't see the ecological impacts that the birds are causing. 
But a pair of breeding swans that are aggressive during the 
nesting season they can be a problem for citizens.
    Mr. Gilchrest. If you reduced the population to 500, how 
would you maintain them at 500?
    Mr. Hindman. Well, we would have to maintain it through the 
practices that we had employed until our Federal permit was 
suspended, and that was a combination of egg addling and 
removing adult birds through shooting or capture and 
euthanasia. But, you know, if you ever got the population to 
that level and it ever received unprotected status, I think 
there would be enough incidental take of mute swans to prevent 
the state wildlife agencies from having to go out and actually 
control there. There would be enough incidental take to 
increase mortality if it was unprotected to keep that 
population at a low level.
    Mr. Gilchrest. Now, reducing the population of the mute 
swan to about 500, which I am assuming now is a manageable 
number, was that part of the mute swan statewide management 
plan?
    Mr. Hindman. Yes, sir.
    Mr. Gilchrest. What is the status of that plan now? Is it 
put on hold as a result of this court decision?
    Mr. Hindman. Well, the management plan has been approved by 
our Secretary of Natural Resources and endorsed by our 
Governor. Certain strategies in that plan and one of which 
would be reducing the mute swan population is on hold because 
we have no Federal depredation permit. We cannot practice swan 
control activities.
    Mr. Gilchrest. So that means you can't addle the eggs?
    Mr. Hindman. No, sir.
    Mr. Gilchrest. What do you think caused the mute swan 
population explosion?
    Mr. Hindman. I think it was primarily the ban on the use of 
lead shot for waterfowl hunting.
    Mr. Gilchrest. What was that?
    Mr. Hindman. I believe it was linked to the ban on the use 
of lead shot for waterfowl hunting.
    Mr. Gilchrest. Lead shot.
    Mr. Hindman. Yes, sir.
    Mr. Gilchrest. How is that? Now, there was about a 5-year 
or so span of time where you couldn't hunt Canada geese. Would 
that have anything to do with--now, you could hunt snow geese 
but you couldn't hunt Canada geese. Fish and Wildlife Service 
and then the State of Maryland, in concurrence, had that 
moratorium on hunting. Would that have had any effect on the 
mute swan explosion?
    Mr. Hindman. Not really. Probably very little.
    Mr. Gilchrest. How would the ban on lead shot be correlated 
with the explosion of mute swans?
    Mr. Hindman. Well, if you--I have worked here for about 30 
years, and I can recall picking--frequently picking up mute 
swans that had ingested lead shot, OK? And Dr. Scott Petri in 
Ontario who has looked at the mute swan population in the Great 
Lakes and if you look at mute swan populations in Europe and 
other parts of the world where lead shot has been banned, you 
have seen an increase in the mute swan population. I think the 
conversion to non-toxic shot for waterfowl hunting has reduced 
the amount of lead ingestion by mute swans. And it just so 
happens that it coincides with the explosion of, if you will, 
mute swans in Chesapeake Bay.
    Mr. Gilchrest. Would there be an increase in other 
waterfowl because they didn't ingest the lead shot?
    Mr. Hindman. Well, there are a lot of factors that affect 
waterfowl populations, but waterfowl populations are much 
healthier for not ingesting lead shot.
    Mr. Gilchrest. What effect do mute swans have on tundra 
swans?
    Mr. Hindman. We don't know. We have a research project that 
is currently underway to quantify that, but we do have 
anecdotal reports from citizens and observations our staff have 
made where mute swans have prevented the feeding and use of 
protected codes, a shelter by tundra swans. I myself have 
observed that, even recently. But we don't really know if the 
lower number of tundra swans that we have in the State is 
related to the increase in mute swan population, but we believe 
that there may be some link there.
    Mr. Gilchrest. So we do have a lower number of tundra swans 
now.
    Mr. Hindman. Yes, sir.
    Mr. Gilchrest. Than when? Than 10 years ago?
    Mr. Hindman. It has declined in the last 25 years, and part 
of that I believe is due to the degradation of the habitat, the 
loss of submersed aquatic grasses. Some telemetry work that we 
are doing on tundra swans suggests that they don't spend as 
much time in Chesapeake Bay now and they will go and winter in 
North Carolina.
    Mr. Gilchrest. Does that have anything to do with the 
temperature or it is the amount of bay grasses that are not 
here?
    Mr. Hindman. I think it is more related to habitat rather 
than temperature.
    Mr. Gilchrest. Habitat loss.
    Mr. Hindman. Yes, habitat loss in terms of a decline in bay 
grasses. And, again, we have anecdotal reports where citizens 
who lived along the waterfront for years see their tundra swans 
disappearing and they are being displaced by mute swans in 
those tidal creeks.
    Mr. Gilchrest. How much of the reduction in the population 
of tundra swan is related to mute swans versus a general 
degradation of their habitat for a whole host of reasons: 
Pollution, development, you name it.
    Mr. Hindman. I can't really answer that. We don't know the 
impact of mute swans or the increase in mute swans and what it 
has had on the numbers of tundra swans. We suspect that there 
may be, in part, some link there.
    Mr. Gilchrest. If you took a look at the overall loss of 
bay grasses--now this is sort of I'm getting out of your 
bailiwick and the Department of Natural Resources, more or 
less, I think--if you looked at the total losses of bay grasses 
in the Chesapeake Bay over the last 40 years, could you 
categorize the causes for that loss, whether it is air 
deposition, sewage treatment plants, motor boat activity in 
shallow waters, agriculture and mute swans. How would you 
classify the loss of bay grasses in all those arenas?
    Mr. Hindman. Well, I think the science based upon the 
current science, the losses of bay grasses, the primary loss 
has been attributed to basically elevated levels of nutrients 
that have contributed to apathetic growth on the plants that 
has reduced photosynthesis and it stresses the plants and in 
some cases causes mortality. By far that is the primary loss of 
bay grasses, and then as suspended sediments as well. Mute 
swans they eat a lot of grass at their current population 
level, which is a very limited resource. We believe that that 
level of grazing and removal of plants, particularly during the 
spring when the plants are trying to reproduce, places an 
additional stress on the plants. But is by far it pales in 
comparison to the effects of elevated nutrients and suspended 
solids.
    Mr. Gilchrest. What is your, and I think you stated this to 
some extent in your testimony, if there is no management plan 
for mute swan population, what is the estimate of their 
population by 2010 or even 2020? And then the consequences of 
that to other native species, such as tundra swans, and then 
the consequences of that to bay grass.
    Mr. Hindman. Well, we expect the population to increase, 
because we won't be controlling annual reproduction through egg 
addling and we won't be removing adult swans. So our basic 
population model for mute swans suggested that by 2010 the 
population might approach 30,000 birds. At some point, and we 
can't predict the future, but the population could crash 
because of winter mortality or disease outbreak, but we would 
expect it to increase, we would expect the problems that we are 
seeing now with 4,000 birds to exacerbate. Currently, 
transplanting efforts for bay grasses have to be fenced. Birds 
are damaging bay grass beds and are feeding on these plants 
before they have been able to form reproduction structures in 
the spring. So the news would not be good, and we would expect 
other conflicts with native wildlife.
    Mr. Gilchrest. So the next 6 years we could go from 4,000, 
approximately, to about 30,000?
    Mr. Hindman. Keep in mind we have reduced the population 
through our activities in the last 2 years, so that number 
probably would not be as high. We can give you that number.
    Mr. Gilchrest. If the present situation doesn't change in 
regards to managing the mute swan population, they could, given 
everything, all the other consequences, they could rise to 
30,000?
    Mr. Hindman. Or above.
    Mr. Gilchrest. How many tundra swans winter in the 
Chesapeake Bay?
    Mr. Hindman. About 20,000.
    Mr. Gilchrest. About 20,000.
    Mr. Hindman. In Maryland.
    Mr. Gilchrest. So the mute swans could exceed the tundra 
swans.
    Mr. Hindman. They could in time.
    Mr. Gilchrest. But the mute swans wouldn't migrate out?
    Mr. Hindman. No, sir. Most of them live within 30 miles of 
where they were hatched.
    Mr. Gilchrest. Do you have--based on your experience with 
the Department of Natural Resources, do you have any 
recommendation to us, the U.S. Congress, to help resolve this 
issue?
    Mr. Hindman. Well, that is beyond my scope of expertise.
    Mr. Gilchrest. Does there need to be--
    Mr. Hindman. We are in a situation now where we need a 
Federal permit to do our mute swan control, and as I heard Mr. 
Hogan state today, that they don't plan to do any further 
environmental review. If the bird--if the State through some 
modification of the treaty or amendment of the treaty or some 
other legislative step would return primary management 
authority back to the State, we could implement it and 
implement the management plan and achieve our objectives. 
Unlike starlings, mute swans are--we can control them. They are 
large birds and they are not that many of them, and we can get 
them under control at a manageable level.
    Mr. Gilchrest. So given all the other problems with the 
health of the bay, all the other human activities that cause a 
degradation of the health of this estuary, at this point, mute 
swans are a tiny part of that but they are in fact a factor 
that has an effect on habitat and SAVs, but untouched, 
unmanaged could be more significant in factor in the continuing 
process of loss of habitat and degradation of the Chesapeake 
Bay itself. Is that a fair summary of Maryland's perspective on 
mute swans?
    Mr. Hindman. Yes, sir, but I might point out that 
concentrations of swans do significant damage at the local 
level.
    Mr. Gilchrest. I see.
    Mr. Hindman. And even though in the bay as a whole they may 
not do damage on magnitude of pollutants or nutrients. At the 
local level, they do a significant part--
    Mr. Gilchrest. So in tidal basins or rivers, the Sassafras, 
the Choptank, the Chester, the Nanocote, the Wicomico or I'm 
not sure what they are in the Western Shore, the Patuxent, the 
Middle River, Potomac or whatever, these tidal areas all have 
selected protected tidal ponds throughout the length and 
breadth of the Chesapeake Bay itself. So you get a few mute 
swans in those tidal ponds that are not only habitat for tundra 
swans, for other species of birds, but are spawning areas for 
rock fish or a whole range of other species. The mute swan in 
that very specific area could eliminate that for other species 
of birds, reduce the habitat for fish spawning areas and 
destroy the vegetation at one tidal pond and replicate it over 
and over again.
    Mr. Hindman. Yes. They can overgraze bay grasses at the 
local level, and if you look at the distribution of where swans 
are, they are located where you have the highest incidence of 
bay grasses.
    Mr. Gilchrest. One last question: Is it your understanding 
right now, because the staff just handed me a little note here, 
that says, ``The court injunction against U.S. Fish and 
Wildlife Service depredation permit did not include egg 
addling.'' So is that your understanding, that you can continue 
to egg addle or you can't continue to egg addle?
    Mr. Hindman. In my conservation with Diane Pintz, who works 
for U.S. Fish and Wildlife Service, Region V, she was--she 
could not give me assurance that we would be able to obtain a 
Federal depredation permit to addle eggs this spring. So there 
is a lot of uncertainty.
    Mr. Gilchrest. I see. Mr. Hogan?
    Mr. Hogan. Yes. I can add to that, that our interpretation 
is it does include egg addling.
    Mr. Gilchrest. It does.
    Mr. Hogan. It does, and so we are not issuing any permits 
for either egg addling or any direct control.
    Mr. Gilchrest. All right. I am going to read something that 
they just handed me. I think after the hearing we can probably 
get together and resolve this issue. But the language is, 
``Furthermore, issuance of an injunction prohibiting Maryland 
from killing any mute swans this year would not preclude the 
State from pursuing non-legal population techniques, such as 
egg addling, which they already tend to use as part of an 
integrated management plan and which has proven to be effective 
in the past.'' But I think we can pursue this further, get the 
appropriate number of people on the phone or in the same room 
so we could clear that up.
    Is there anything else that any of the witnesses want to 
say or contribute, comment?
    Mr. Hogan. If I could, Mr. Chairman--
    Mr. Gilchrest. Yes, sir.
    Mr. Hogan. --just in closing. I think you have pointed out 
that or it has been pointed out in testimony that mute swans 
are a problem but it is a question of how big of a problem. I 
think it is a problem that is fairly significant now and is 
going to continue to get worse, and we have missed our 
opportunity, potentially, to control them. And I do think this 
is an issue that is fairly urgent, and I just wanted to--and I 
think you are aware of that but that is certainly our opinion 
and certainly don't want to speak for my colleagues on the 
panel, but I do feel--or we do feel that it is an urgent issue 
and one that needs addressing. We, unfortunately, have 
exhausted just about everything we can do but certainly don't 
take that as any opinion on our part that we do not think that 
this is a crucial issue that needs to be addressed and 
rectified.
    Mr. Gilchrest. Thank you very much. And we will continue to 
pursue this. We appreciate the information that we have 
gathered here this morning from all of you. And as we continue 
to understand the relationship of human activity and our need 
for infrastructure and nature's own system and its need for an 
infrastructure, we are going to try to create a system of laws 
that provides compatibility between the two. And we will do 
that with the best available science, we will do that with a 
certain sense of ethics toward all the living creatures that 
there are under our jurisdiction and there are many, but we 
will pursue this with an open mind, with a sense of tolerance 
for other opinions and with great respect for the living 
resource and the creatures that live on it. And your testimony 
here this morning has been extremely helpful, and I want to 
thank you all for it, and have a pleasant day in Annapolis.
    Our next panel is Mr. David Pardoe, Member of the Board of 
Directors, National Audubon Society; Dr. Elizabeth Stallman, 
Wildlife Scientist, the Human Society of the United States; Dr. 
Rollin Sparrowe, President, Wildlife Management Institute; the 
Honorable Gerald W. Winegrad, Vice President for Policy, 
American Bird Conservancy.
    I want to thank you all for coming here, this is the 
afternoon now, and for your patience with all of our questions. 
We look forward to your testimony to try to understand this 
intriguing, most wonderful, complex ecological question about 
which species stays and which species goes. And I think the 
debate thus far and will continue to be of a high plain for us 
in a position to make a decision as policymakers. We take very 
seriously and we know the issues are complex, people have 
varying degrees of perspectives and varying degrees of emotion 
when it comes to these issues. When we view these things from 
the Subcommittee level, our focus is the ecological system and 
what is best for that ecosystem. For example, in this case much 
of the conversation has surrounded the Chesapeake Bay. Many 
different exotic birds but mute swans in particular. To sustain 
an ecosystem it is my judgment that you can't look at a single 
species but the big picture is vital.
    And as we assume and accumulate more information about 
these dramatic ecological systems and how they evolve and 
change over ions of time and a quick snapshot of one human 
lifetime, we try to make appropriate judgments, which we will 
do in this situation--well, I hope we make the appropriate 
judgment in this situation. We will try to make the appropriate 
judgment. But your testimony here this morning will be a 
significant part of that decisionmaking process. We look 
forward to your testimony, and, Mr. Pardoe, you may begin 
first, sir.

             STATEMENT OF DAVID H. PARDOE, MEMBER, 
          BOARD OF DIRECTORS, NATIONAL AUDUBON SOCIETY

    Mr. Pardoe. Thank you, Mr. Chairman. In the interest of all 
of our time, I would ask that the written testimony be made a 
part of the record, and I will not read it in its entirety.
    Mr. Gilchrest. Without objection.
    Mr. Pardoe. My name is David Pardoe. I am a member of the 
Board of the National Audubon Society, and I Chair the Board of 
Audubon in Maryland and D.C., which is the Maryland State 
Program for National Audubon. On behalf of the National Audubon 
Society's more than one million members and supporters, I am 
pleased to be here today to discuss the need for improved 
control of invasive mute swans populations in the northeastern 
United States as well as other invasive non-native bird species 
that are causing harm to native migratory birds.
    The mission of the National Audubon Society is to conserve 
and restore ecosystems with a focus upon birds and other 
wildlife and the habitat which sustains them. The Migratory 
Bird Treaty Act has been interpreted to provide protection for 
a human-introduced species. We believe that that should be 
corrected to exclude human-introduced species. This, we 
believe, has been the interpretation in the past of the 
Migratory Bird Treaty Act as the American Ornithological Union 
checklist of human-introduced species has been used in the past 
to exclude protection from those species.
    Some of these species are detrimental to Native American 
bird species. House sparrows and starlings are particularly 
disruptive to Native American cavity-nesting birds, such as the 
three species of bluebirds, tree swallows and various species 
of woodpeckers. Purple martins and great-crusted flycatchers 
are other cavity-nesting species that are affected. Pigeons are 
primarily a human health and a property nuisance problem, but 
they have been controlled for many years. The mute swan is a 
particular problem for the Chesapeake Bay, as is the human-
introduced nutria, which, of course, is not a bird but a 
rodent.
    The mute swan is a resident year-round bird that consumes 
bay vegetation, so-called SAVs. It is a large, aggressive bird 
resident during the breeding season and is destructive to 
native nesting black skimmers, least terns, black ducks, among 
other bird species. The health of the Chesapeake Bay is 
dependent upon healthy aquatic grasses. We are spending large 
amounts of the taxpayers' money to attempt to restore the bay's 
SAVs while a human-introduced non-native species is depleting 
the SAVs. SAVs support the life of the bay. SAVs support the 
life of fish, of Chesapeake Bay blue crabs, of wintering diving 
ducks and wintering native tundra swan. The mute swan is of 
course only one factor in the threats to SAVs and threats to 
the health of the bay, but it is one more factor when the bay 
is struggling for its own ecological existence. The continuance 
of a large population of mute swans is at odds with the 
Chesapeake Bay restoration effort.
    It is painful for the National Audubon Society to support 
the population control, that is killing of any bird, but it is 
also painful for us to watch the decline of the Chesapeake Bay, 
to watch the decline of black skimmers and least terns, to 
watch the decline of diving ducks, to watch the decline of blue 
crabs, of yellow perch and of other fish species in the 
Chesapeake. We support our native swan, the tundra, and we 
support the ecological health of the Chesapeake Bay in our 
support for the exclusion of human-introduced species from the 
protection of the Migratory Bird Treaty Act.
    Thank you for the opportunity to testify, and I will be 
glad to answer any questions.
    [The prepared statement of David H. Pardoe follows:]

         Statement of Dave Pardoe, Member, Board of Directors, 
                        National Audubon Society

    Mr. Chairman and Members of the Subcommittee:
    My name is Dave Pardoe. I have been a member of National Audubon 
Society's Board of Directors for more than six years. Audubon's mission 
is to conserve and restore natural ecosystems, focusing on birds, other 
wildlife, and their habitats for the benefit of humanity and the 
earth's biological diversity. Our national network of community-based 
nature centers and chapters, scientific and educational programs, and 
advocacy on behalf of areas sustaining important bird populations, 
engage millions of people of all ages and backgrounds in positive 
conservation experiences.
    On behalf of National Audubon Society's more than one million 
members and supporters, I am pleased to be here today to discuss the 
need for improved control of invasive Mute Swan populations in the 
Northeastern United States, as well as other invasive non-native bird 
species that are causing harm to native migratory birds. I will provide 
testimony regarding our position on control of invasive bird species in 
the U.S., and how they should be managed, the obstacles standing in the 
way of appropriate management of these birds, and recommendations to 
address these obstacles.
    Before I begin my testimony, I would like to thank the Chairman for 
his support on a wide range of conservation issues, including efforts 
to control invasive species, and support for protection of Blackwater 
National Wildlife Refuge and restoration of the Chesapeake Bay. I would 
also like to thank the Chairman and the Committee for the opportunity 
to testify today.
    Invasive species are one of the key factors in the decline of many 
migratory bird species. Throughout the nation, many threatened bird 
species are imperiled by invasive species, and invasive species have 
been partly or wholly responsible for many bird extinctions since 1800. 
Thus, as part of the program to achieve its mission, Audubon has 
consistently supported efforts to eradicate invasive species for the 
benefit of native birds and wildlife.
    Audubon has established a position in support of efforts by both 
state and national natural resource agencies to control invasive Mute 
Swans. Audubon filed comments on the U.S. Fish and Wildlife Service's 
(FWS) draft environmental assessment on the management of Mute Swans 
(Cygnus olor) in the Atlantic Flyway. Audubon supported the proposed 
action in the draft environmental assessment for Integrated Population 
Management of Mute Swans, including lethal methods to reduce the 
exploding Mute Swan population in the east by 67%. Audubon scientists 
support the culling of adult Mute Swans as a necessary measure to 
reduce or eradicate Mute Swan populations and thereby reduce the damage 
to the Chesapeake Bay ecosystem.
    The Maryland Department of Natural Resources has exhaustively 
studied and documented the problem and published the Mute Swan Task 
Force Report on their web site. The public has had many opportunities 
to comment. The scientific and birding community supports mute swan 
removal.
    In a recent case, we also urged the United States Court of Appeals 
to uphold the U.S. Fish and Wildlife Service permit because:
    a)  Mute Swans displace and adversely affect native birds such as 
Tundra Swans, Least Terns, Black Skimmers, Common Terns, and Forster's 
Terns and may affect many species of waterfowl, such as Black Ducks;
    b)  Mute Swans consume large amounts of submerged aquatic 
vegetation;
    c)  Mute Swans are non-native, invasive species that were 
introduced into Maryland in the 1960's; and
    d)  Mute Swan populations will continue to expand unless adults are 
culled, and such expansion would result in even more damage to other 
species.
    Bay grass recovery is important to water quality and Bay resources. 
Mute Swans consume large amounts of Bay grasses, perhaps as much as 12 
million pounds a year. These grasses are the subject of intense 
recovery efforts under the Chesapeake Bay Agreement and the Bay 
Restoration Plan. Millions of dollars in public funds are devoted to 
their recovery. The grasses are essential to sustain the Bay's Blue 
Crab population (its most valuable seafood), for many other aquatic 
resources, for water quality and for native species of waterfowl.
    As a responsible national conservation group dedicated to bird 
conservation, Audubon supports the FWS permit and the DNR removal 
efforts for Mute Swans. The Mute Swan is an introduced invasive species 
that threatens native birds and their habitat such as bay grasses. 
Addling and oiling eggs will not reduce populations and lethal removal 
is necessary to reduce or eradicate Mute Swan populations.
    We have supported a nationwide Depredation Order for this exotic 
species with a goal of the elimination of wild Mute Swan populations. 
There is no biological basis for supporting continued populations of 
Mute Swans in the wild while there are sound ecological reasons to 
eliminate all wild populations. FWS should work to attain that goal in 
the long-term, and not support the maintenance of a wild population of 
an invasive species.
    We believe such reductions/elimination are necessary because:
    1)  Next to habitat loss and alteration, invasive species have been 
identified as the greatest threat to birds in the U.S. Up to 46% of the 
plants and animals Federally listed as endangered species have been 
negatively impacted by invasive species. The Mute Swan is a large 
invasive species that has demonstrably negative impacts on other 
species, including native birds;
    2)  The large, aggressive Mute Swan has attacked and killed other 
birds and has extirpated breeding colonies of water birds. In Maryland, 
as noted in the Maryland Mute Swan Task Force Report, ``One of the more 
serious conflicts between Mute Swans and native Maryland wildlife 
occurred in the early 1990's, when a molting flock of about 600 to1,000 
nonbreeding Mute Swans excluded Black Skimmers (Rynchops niger), a 
state-threatened species; Least Terns (Sterna antillarum), classified 
as a species in need of conservation; and Common Terns (Sterna hirundo) 
from using the oyster shell bars and beaches in the Tar Bay area of 
Dorchester County for nesting sites.'' Tar Bay was the only remaining 
natural nesting site for Least Terns and Black Skimmers in the 
Chesapeake Bay;
    3)  Mute Swans impact other swans and waterfowl. According to the 
Maryland Task Force Report, ``Mute Swans are believed to pose a 
significant threat to the well-being of the Chesapeake Bay tundra swan 
population (W.J.L. Sladen, Swan Research Program at Airlie, VA, pers. 
commun.).'' In a Rhode Island study, one pair of Mute Swans vigorously 
defended a five acre pond, preventing use by other waterfowl (NY DEC 
1993). In central New York, three pairs of captive Mute Swans killed at 
least 50 ducks and geese (mostly young birds) on a small zoo pond over 
a 20-month period (NY DEC 1993). Such behavior may be a factor in 
inhibiting the recovery of such native species as Black Ducks. In 
addition, Mute Swans consume SAV preferred by many native waterfowl 
species; and
    4)  Mute Swans consume huge amounts of Submerged Aquatic Vegetation 
(SAV). George Fenwick's doctoral dissertation (1983) on Mute Swans in 
the Chesapeake Bay showed that the male Mute Swan consumed 34.6% of 
their body weight per day and females consumed 43.4%. Based on Dr. 
Fenwick's study, the Maryland Task Force Report notes that ``Assuming 
that an adult/subadult mute swan consumes an average of 3.789 kg wet 
weight of SAV per day (Willey and Halla 1972), a population of 4,000 
swans has the potential to consume more than 12 million pounds of SAV 
annually (L. Hindman, MD DNR). Consumption of immature seeds, removal 
of biomass before plant maturation, and uprooting of whole plants may 
have a very negative effect on SAV with minimal consumption (M. Naylor, 
MD DNR, pers. commun).'' Scientists at the Patuxent Wildlife Research 
Center have recently concluded that the introduced swan's diet is 
composed nearly entirely of vegetation during all seasons of the year. 
Mute Swans relied heavily on SAV with Widgeon Grass (Ruppia maritima) 
constituting 56 % and Eel Grass (Zostera marina) 43 % of their food. 
See (Perry et al 2000). These scientists noted localized depletions 
(eat-outs) of SAV during the growing period. The FWS Draft EA notes 
that the current population of Chesapeake Bay Mute Swans consumes 
almost 10 percent of the total biomass of submerged aquatic vegetation 
in the Bay. These grasses are critical to many other avian species, to 
recovery of fisheries (Blue Crabs), and to the general water quality of 
the Bay and other water bodies.
    To reduce or stabilize populations of Mute Swans, adults must be 
removed. Dr. Scott A. Petrie is Research Director of the Long Point 
Waterfowl and Wetlands Research Fund. He has authored a research paper 
on Mute Swans and he has published other work showing that Mute Swans 
have grown by 10% to 21% a year on the shores of Lake Erie and Lake 
Ontario, despite egg addling and oiling. In his paper published 
February 2002 in Birding, he finds that addling eggs does not work to 
reduce or stabilize populations of Mute Swans and that adults must be 
removed. Rhode Island began a control program of egg addling and 
pricking in 1979; despite the fact that 9,378 eggs have been destroyed 
in 1,629 nests over a period of 22 years, the population increased by 
over 500% (Allin, personal communication). Population models indicate 
that the most effective way to reduce population growth for a long-
lived species, such as the Mute Swan, is to reduce adult survival rates 
(e.g., Schmutz et al. 1996) Schmutz, J.A., R.F. Rockwell, M.R. 
Peterson. 1997. Relative effects of survival and reproduction on the 
population dynamics of emperor geese. J. Wildl. Mange. 61(1):191-201.
    Based on the best science obtainable, the take of adult Mute Swans 
is essential to prevent a substantial escalation in the Mute Swan 
population and the damage they cause to native avian species, SAV, and 
water quality. Without aggressive efforts to control and eliminate Mute 
Swans, the Mute Swan population will continue to rapidly increase. The 
Mute Swan population in the Chesapeake Bay has grown from 5 escaped 
birds in 1962 to about 4,500, including birds in Virginia and Maryland.
    This problem is not just limited to Mute Swans nor limited to the 
state of Maryland or to the nation's eastern coastline. For example, 
the European Starling has had widespread demonstrable negative impacts 
on native migratory birds. Although estimates vary, it is commonly 
believed that a total of about 100 individuals were released into 
Central Park in New York City in 1890 and 1891. The entire North 
American population, now numbering more than 200 million and 
distributed across the continent, is derived from these few birds. This 
is arguably the most successful avian introduction to this continent. 
Unfortunately, the European Starling offers intense competition for 
nesting cavities and has had a detrimental effect on many native 
cavity-nesting species.
    A recent decision by the United States Court of Appeals for the 
District of Columbia Circuit in Hill v. Norton found that the strict 
language of the Migratory Bird Treaty Act cannot be read to exclude 
from protection by the Act the invasive Mute Swan. This decision limits 
the authority of the United States Fish and Wildlife Service to manage 
and control Mute Swans and other invasive bird populations for the 
benefit of native migratory birds. The decision is also inconsistent 
with a longstanding common interpretation of the law among professional 
biologists, environmental professionals, and agency officials in both 
the United States and in countries that are signatories of the treaties 
underlying the MBTA that invasive, non-native birds are not meant to be 
protected by the Act, and instead they are a threat to the hundreds of 
other migratory bird species that are protected by the law.
    National Audubon Society supports a small, rifle-shot change to the 
MBTA that would make clear that invasive birds are not protected by the 
MBTA and can be controlled by state and national wildlife agencies for 
the benefit of native birds and wildlife. In offering this support, 
however, I want to make clear two caveats that are very important to 
consider if a legislative proposal comes before this committee:
    1.  The term ``invasive'' should be carefully defined and limited 
to birds that are part of a human-introduced non-native population that 
actively causes ecological harm or outcompetes native migratory birds 
or other wildlife. National Audubon Society is concerned that a 
broader, more inclusive term, such as ``non-native'' would authorize 
lethal control of migratory bird species that naturally expand their 
range or naturally change their migratory routes in search of better 
habitat. For example, if climate change were to cause habitat changes 
or modifications of other natural cues that lead birds to new areas or 
even to new countries, we believe these natural changes would not be an 
appropriate or sufficient rationale to justify elimination of 
protections under the MBTA. We also stress the need to focus on 
``human-introduced'' species as this would be a clear indicator of 
unnatural invasion of a species. We also believe there must be a 
distinction made between those species that are causing no harm to 
native birds and wildlife and those that are. As noted by the National 
Invasive Species Council, only a small percentage of non-native species 
cause serious problems in their new environment and are collectively 
known as ``invasive.'' The Council defines an ``invasive species'' as a 
species that is: 1) non-native (or alien) to the ecosystem under 
consideration; and 2) whose introduction causes, or is likely to cause, 
economic or environmental harm or harm to human health. The National 
Invasive Species Management Plan focuses on those non-native species 
that cause or may cause significant negative impacts and do not provide 
an equivalent benefit to society.
    2.  Any change to the MBTA should in no way diminish FWS authority, 
jurisdiction, or enforcement responsibilities with respect to indirect 
take of non-target migratory bird species that may be impacted by 
actions to control invasive birds. Although it may be necessary in some 
circumstances to use lethal control methods to manage populations of 
invasive species, some lethal control methods can have significant 
ancillary impacts on native migratory birds. For example, efforts to 
poison invasive European Starlings have had such negative impacts. Some 
poisons take days to take effect, leaving a risk that a predatory bird, 
like a Sharp-shinned Hawk, will eat the poisonous bird and become 
poisoned. Poison banquets left out on the ground for a target species 
can attract and kill a range of non-target migratory bird species. Just 
as the Fish and Wildlife Service exercised its authority to issue a 
permit under the MBTA on Anacapa Island in California to regulate the 
poisoning of invasive black rats that could impact non-target migratory 
bird species, the Fish and Wildlife Service should exercise its 
responsibilities under the MBTA to ensure efforts to control invasive 
species do not violate the terms and conditions of the Act and its 
judicial interpretations and implementing regulations. Therefore we 
strongly urge this Committee to ensure that any changes to the MBTA 
that may be considered to increase the authority of state and national 
resource agencies to control invasive bird species do not in any way 
abrogate Fish and Wildlife Service authority, jurisdiction, or 
enforcement responsibilities with respect to indirect take of non-
target migratory bird species that may occur as a result of actions 
aimed at invasive species control.
    In summary, Mr. Chairman, invasive bird species like the Mute Swan 
and the European Starling have had demonstrable negative impacts on 
native migratory birds throughout America. The recent court decision 
extending the protections of the Migratory Bird Treaty Act to invasive 
species that are harmful to a wide range of birds protected under the 
MBTA was inconsistent with longstanding common interpretations of the 
MBTA by resource professionals and limits the authority of natural 
resource agencies to implement proper and necessary control programs 
for the benefit of native birds and wildlife. National Audubon Society 
supports a small, rifle-shot change to the MBTA that would make clear 
that invasive birds are not protected by the MBTA and can be controlled 
by state and national wildlife agencies for the benefit of native birds 
and wildlife. In considering any legislative recommendations of this 
type, we urge the Committee to ensure that the definition of 
``invasive'' bird species is limited to those that are introduced by 
human actions and cause significant environmental harm in a manner 
consistent with the definition used by the National Invasive Species 
Council, and we also strongly encourage the Committee to ensure that 
any such legislative changes do not abrogate Fish and Wildlife Service 
responsibilities to protect migratory birds that may be harmed by 
control actions aimed at invasive species.
    Mr. Chairman, this concludes my prepared statement. I would be 
pleased to answer any questions that you or Members of the Subcommittee 
may have.
                                 ______
                                 
    Mr. Gilchrest. Thank you, Mr. Pardoe.
    Dr. Stallman

  STATEMENT OF ELIZABETH L. STALLMAN, WILDLIFE SCIENTIST, THE 
              HUMANE SOCIETY OF THE UNITED STATES

    Dr. Stallman. Thank you, Chairman Gilchrest, for the 
opportunity to present the views of the Humane Society of the 
United States regarding the management of mute swans, other 
non-native birds and the Migratory Bird Treaty Act. I am Dr. 
Bette Stallman, wildlife scientist with the Humane Society of 
the U.S. This testimony was prepared by Dr. John Grandy, the 
Senior Vice President for Wildlife Programs at the HSUS. Dr. 
Grandy could not be here to present this testimony today. I am 
presenting this testimony on behalf of our more than eight 
million members and constituents.
    Dr. Grandy, who prepared this testimony, is trained as a 
waterfowl--
    Mr. Gilchrest. Can you pull that mike a little closer?
    Dr. Stallman. Oh, I am sorry. Dr. Grandy, who prepared this 
testimony, is trained as a waterfowl biologist, and he has 
broad experience with the ecology and management of waterfowl 
and with Chesapeake Bay vegetation.
    The Humane Society of the United States is dedicated to the 
protection of all animals, including all wildlife, native or 
otherwise. If wildlife managers and scientists cannot 
demonstrate compelling justification, lethal control of any 
animal, native or non-native, should not be undertaken. I think 
it is important to keep in mind that, as you suggested earlier, 
ecosystems are always in flux. They are not rigid, stable 
systems, they should not be thought of as such. Expansion and 
movement of wildlife populations is a natural phenomenon that 
occurs with and without human intervention. Attempts to 
determine the natural state of an ever-changing ecosystem 
quickly dissolve into arbitrary discussions of how one chooses 
to define natural, and ultimately they become debates over what 
is the desired state of an ecosystem.
    For example, many of the wildlife--the same wildlife 
managers calling for lethal control of mute swans are silent on 
the subject of the purposeful introductions of non-native ring-
necked pheasants, Chukar partridges, which are both native to 
parts of Eurasia, where such introductions are desired by 
recreational hunters and other constituents. I don't mean to 
suggest that we should eliminate pheasants and Chukars, I only 
wish to emphasize the politics and the values behind wildlife 
management decisions as well as a reliance at times on a type 
of politically expedient pseudo-science that weakens science 
and the wildlife management profession.
    Regarding mute swans on Chesapeake Bay, the Chesapeake Bay 
Foundation's recent October 2003 report, which I attached to 
our testimony, on nitrogen pollution reminds us, as was 
mentioned earlier, that nitrogen pollution is the most 
significant problem facing the bay. Nitrogen enters the bay 
from sewage treatment plants that are outdated, agriculture and 
other sources. The increase in nitrogen leads to an increase in 
algae. That leads to a decrease in water clarity and a decrease 
in the sunlight that can reach the submerged aquatic 
vegetations upon which so many other organisms in the bay 
depend. Ultimately, the algae decays and this leads to 
decreased levels of dissolved oxygen in bay waters. This report 
focused on nitrogen coming from sewage treatment plants, but it 
also notes that agriculture is the number one source of 
nitrogen in the bay.
    In addition to nitrogen, phosphorous is the other primary 
pollutant, according to the Chesapeake Bay Foundation's ``State 
of the Bay 2003'' report. Water clarity is affected by both 
nitrogen and phosphorous and also by sediment which washes into 
the bay as a result of land use activities that increase 
erosion.
    Mute swans are not mentioned in the ``State of the Bay 
2003'' report by the Chesapeake Bay Foundation, which logically 
focuses on those factors with well-documented impacts that are 
clearly of greatest concern in restoring the bay. Evidence 
presented by the U.S. Fish and Wildlife Service and by the 
Maryland DNR regarding impacts of mute swans on submerged 
aquatic vegetation and regarding aggression toward native 
waterfowl is primarily anecdotal, not peer-reviewed or is peer-
reviewed but is based on research in other regions or on other 
continents. The DNR has said on a number of occasions that at 
current levels the impact of mute swans bay-wide is negligible 
or pales in comparison to these other factors, such as 
pollutants and sediment.
    With respect to the Migratory Bird Treaty Act, we urge you 
to retain mute swans on the list of protected species. 
Excluding these swans won't fix the bay. Exclusion of any 
migratory bird species from the coverage of the MBTA may 
denigrate the purpose and intent of the Act and may set an 
unfortunate precedent of decreasing or removing MBTA's 
protections based on whether a bird population is in vogue. 
Exclusion of the mute swan from the MBTA is also simply 
unnecessary because management actions can be undertaken under 
the authority of the MBTA.
    We commend you, Mr. Chairman, for your interest in the 
Chesapeake Bay and its still incredible resources and 
potential. We urge you to do everything in your power to solve 
the major problems identified by the Chesapeake Bay Foundation 
and other organizations which are clearly affecting the bay 
negatively. At the same time, we urge you to oppose any effort 
to kill mute swans or to remove the needed protection of the 
mute swan under the MBTA. Thank you.
    [The prepared statement of Mr. Grandy submitted for the 
record follows:]

      Statement of John W. Grandy, Ph.D., Senior Vice President, 
       Wildlife Programs, The Humane Society of the United States

    Thank you Chairman Gilchrest, and members of the Subcommittee on 
Fisheries Conservation, Wildlife and Oceans, for the opportunity to 
present the views of The Humane Society of the United States (HSUS) 
regarding the management of mute swans and other non-native birds, and 
the Migratory Bird Treaty Act (MBTA). I am Dr. Bette Stallman, Wildlife 
Scientist, with The HSUS.
    First, I want to explain that this testimony was prepared by Dr. 
John W. Grandy, Senior Vice President for Wildlife of The Humane 
Society of the United States, on behalf of our President Paul G. Irwin, 
whom you invited to this hearing. I assisted Dr. Grandy in the 
preparation of the testimony and, although Dr. Grandy could not be here 
to present the testimony, I am doing so on his behalf. This testimony 
is presented on behalf of The Humane Society of the United States and 
our more 8 million members and constituents.
    I should also note that Dr. Grandy has broad and relevant 
experience with ecological issues, the mute swan, and waterfowl in the 
Chesapeake Bay. He grew up on the shores of the Chesapeake Bay, studied 
aquatic vegetation under Fran Uhler and other experts at the then-Fish 
and Wildlife Service's Patuxent Wildlife Research Center in the mid-
1960's, and went on to become a waterfowl biologist and an 
internationally recognized expert on black ducks, a premier species of 
the Chesapeake Bay.
    First, it is important to keep in mind that ecosystems are always 
in flux and should not be thought of as rigid, stable systems. The 
expansion and movement of wildlife populations into new regions is a 
natural phenomenon that occurs with or without intentional or 
unintentional human involvement. In short, there is no right state and 
there is no benchmark year against which we measure ecological 
correctness. Indeed, as the facts surrounding the mute swan illustrate 
all too well, attempts to determine the ``natural state'' of an ever-
changing ecosystem can quickly dissolve into an arbitrary discussion of 
how one chooses to define ``natural'' and ultimately becomes a debate 
over what is the ``desired'' state of the ecosystem--desired by those 
holding the most political power.
    The HSUS is dedicated to the protection of all animals. We strongly 
support the lives and welfare of all animals whether native or non-
native. All deserve protection, humane treatment, and freedom from 
cruel and abusive treatment at the hands of people. If managers or 
scientists cannot demonstrate compelling justification, lethal control 
of any animal, native or otherwise, should not be undertaken. The rule 
must be that all resident animals in a natural habitat deserve, and 
must be accorded, sensitive humane treatment and stewardship. Indeed, 
we must have a new paradigm for dealing with the stewardship of 
wildlife on the continent--not a philosophy based on year of residence, 
but a philosophy centered on our need to treat all wild living 
creatures with the compassion and respect that they deserve.
    This new paradigm is required by ourselves and our new world. There 
is no turning back the ecological or chronological clock for North 
America or the world. Most agriculture utilizes non-native species. 
Plant nurseries are dependent on non-native species. The ubiqitousness 
of so-called non-native species grows daily, as does the homogeneity of 
the world. Indeed, the hunter-supported wildlife profession which is 
here testifying piously on the alleged destructiveness of a few 
thousand swans in the nation's largest estuary is utterly silent on the 
subject of the introduction of non-native pheasants or Chukar 
partridges (both native to parts of Eurasia) where such introductions 
are desired by their hunter constituents. I should quickly point out 
that we are not suggesting that we want pheasants or other so-called 
non-native residents eliminated from the United States. This only 
emphasizes the political nature of a decisionmaking process concerning 
non-native species that is all too often supported on the basis of 
politically expedient alleged science. This sort of pseudoscience 
weakens both science and the integrity of the wildlife management 
profession.
    Indeed, nowhere is the generalized case that I make for sanity in 
our relation to non-native species and our opposition to pseudoscience, 
more clear than with the mute swan in the Chesapeake Bay. So let me 
take a few minutes, based on the ecological history of the Bay and my 
extensive experience and love affair with the Bay, to discuss the 
ecological factors which bring it to today's state.
    First, I should start with the most recent published materials of 
the Chesapeake Bay Foundation. In their recent reports on the declining 
state of the Bay and the causes for its decline, they never mention the 
few thousand mute swans in the Chesapeake Bay. Specifically, the 
Chesapeake Bay Foundation's October 2003 report on nitrogen pollution 
(which is attached to this testimony) reminds us that ``nitrogen 
pollution is the most significant problem facing the Bay.'' Nitrogen 
entering the Bay from sewage treatment plant--effluent, agriculture, 
air deposition and urban runoff, and other sources stimulates 
``blooms'' (population explosions) of microscopic plants called 
algae''. (The) algae decrease water clarity, blocking sunlight from 
underwater Bay grasses. When algae die, they sink to the bottom, and 
the bacterial process of decay removes oxygen from the water.'' Though 
this report focuses on nitrogen from sewage treatment plants, it notes 
that ``(a)griculture contributes 42% of the nitrogen loading and is the 
largest source of nitrogen pollution to the Bay.'' In addition to 
nitrogen, phosphorous is the other primary pollutant, according to the 
Chesapeake Bay Foundation's ``State of the Bay 2003'' report. Water 
clarity is affected by both of these nutrients and also by sediment 
washing into the Bay as a result of various land use practices that 
increase erosion, such as logging and residential and commercial 
development. Another notable problem facing the Bay is the loss of 
wetland habitat due to rising sea levels and to illegal or unregulated 
activities. In its discussion of underwater grasses, the State of the 
Bay 2003 report indicates that ``new grass beds--have struggled from 
the stress of increased pollution and sediment delivered by heavy 
rainwater runoff.''
    Mute swans are not implicated by the State of the Bay 2003 report, 
which logically focuses on those factors with well-documented impacts 
that are clearly of greatest concern for the Bay.
    There is simply no way that these few swans could be accused of 
nearly anything in an ecological sense on the Bay. Mute swans are 
simply the most politically impotent animal there is to blame for the 
Bay's deterioration. Let me elaborate.
    Nearly 30 years ago, I spent a number of summers as an employee of 
the Fish and Wildlife Service's Patuxent Wildlife Research Center 
studying aquatic vegetation on the shores of the Chesapeake Bay. Even 
then people were talking of the decreasing abundance of vegetation and 
its impact on the bay and its waterfowl populations. But to be sure, 
the beds of aquatic vegetation, Vallisineria, Potomogeton, Najais, and 
Ruppia, et al., were massive compared to today. These beds of submerged 
aquatics are not, and were not, the victims of a few to a few thousand 
mute swans. Rather, they are the victims of the very things the 
Chesapeake Bay Foundation points to: runoff, nitrogen and phosphorous 
pollution from poor and inadequate sewage treatment plants and from 
agricultural and residential sources, turbulence caused by siltation 
and boats, and massive erosion from farms and home building. It is 
absurd for us to sit here and consider harming mute swans because of 
the deteriorating state of the Bay.
    Frankly, we should be grateful for the beauty of swans, geese, 
ducks and other wildlife. Of course, they eat submerged aquatic 
vegetation--that is their preferred food. But they should not be killed 
because they eat it. Rather, we should focus on the things we can do to 
restore the Bay and preserve the species that live there. Killing swans 
is not on any realistic list.
    I ask you to look at another relevant example of the Bay's 
troubles, with somewhat similar overtones and interrelationships. In 
the mid- to late-1950's, the most common breeding duck around the 
Chesapeake Bay was the black duck. Today, the black duck has been 
largely eliminated as an eastern shore breeder and has been replaced by 
the mallard. Pen reared mallards for many years have been released in 
Maryland to be shot by hunters, while escapees have lived to breed and 
compete with black ducks. But black ducks are now largely gone. Does 
that mean that we should start a vendetta against mallards breeding in 
Maryland? Of course not.
    Mallards occupied eastern Maryland largely because of habitat 
changes. Black ducks disappeared because they are largely a forest duck 
that does not adapt well to people. As people destroyed Bay shores and 
lake edges for homes and agriculture, the black duck's range was 
restricted to suitable parts of the Northeastern United States and the 
eastern Canadian boreal forest. Mallards were not to blame for the 
reduction in black ducks any more than mute swans are responsible for 
the reduction in submerged aquatic vegetation in the Chesapeake Bay, 
although both changes are truly regrettable.
    With respect to the MBTA, we urge you to retain the mute swan on 
the list of protected species. Excluding the mute swan from the 
protection of the MBTA will neither solve the perceived depredation 
issues nor give greater protection to the environment. Moreover, 
exclusion of any migratory avian species from the coverage of the MBTA 
will denigrate the very purpose and intent of the Act and set the 
unfortunate precedent of permitting the diminution of the protections 
of the MBTA based on whether a bird population is ``in vogue.'' 
Exclusion of the mute swan from the MBTA is also unnecessary as 
justifiable management actions are envisioned and permissible through 
the strictures of the MBTA, which examines and fuses the welfare of the 
particular avian species with the welfare of the supporting 
environment. Furthermore, the mute swan is now a resident migratory 
bird on this continent and has broad public support; it deserves and is 
entitled to the protections afforded by the MBTA.
    We commend you, Mr. Chairman, for your interest in the Chesapeake 
Bay and its still incredible resources and potential. We urge you to do 
everything in your power to solve the major problems identified by the 
Chesapeake Bay Foundation, ourselves, and others, which are clearly 
affecting the Bay negatively. At the same time, we urge you to oppose 
any effort to kill mute swans or to remove the needed protection of the 
mute swan under the MBTA.
    Thank you.
                                 ______
                                 
    [NOTE: The Chesapeake Bay Foundation Report has been 
retained in the Committee's official files.]
    Mr. Gilchrest. Thank you very much, Dr. Stallman.
    Dr. Sparrowe.

          STATEMENT OF ROLLIN D. SPARROWE, PRESIDENT, 
                 WILDLIFE MANAGEMENT INSTITUTE

    Dr. Sparrowe. Thank you, Mr. Chairman. I am pleased to be 
here and offer mainly some perspectives from my long experience 
with migratory birds. I am not going to try to duplicate the 
very detailed testimony that you have had from both government 
and non-government so far.
    I have experience in the past as Chief of Migratory Bird 
Management with the Fish and Wildlife Service and other 
administrative positions. I was with the Service for more than 
22 years, and since that time my 12 years outside in which I 
have learned a lot more as a citizen, having a long history 
with government and I now have some different perspectives on 
things, I have continued to have a great deal to do with 
various types of migratory bird activities.
    Mr. Gilchrest. You are saying you learned more outside of 
government than inside of government?
    Dr. Sparrowe. I have a different perspective on life and 
government now that I have been outside for 12 years for a 
variety of reasons. That would take a long time to discuss.
    Mr. Gilchrest. So there is life outside of government.
    Dr. Sparrowe. Yes, there is. I still believe in government, 
and I have great respect for the people who work there in 
public service. My understanding, personally, of MBTA 
throughout my career is that it was not an Act to deal with 
exotic birds but rather to provide a sound framework for 
protection of native migratory species moving between the 
countries involved in the treaties and particularly to provide 
some boundaries for human use of those resources.
    In my experience in the Fish and Wildlife Service, the 
focus was understood to be on maintaining populations of native 
species and avoiding unnecessary losses to human activities. 
Generally, not a direct and literal translation of protection 
for individual birds unless protection of individual birds was 
necessary often to make a point that widespread abuse could 
really have a population impact.
    One of my most unusual experiences I think has some bearing 
on this. It is an experience since I left government. The Fish 
and Wildlife Service and others involved in concerns over the 
impact of Arctic nesting white geese on their habitats during 
migration led to consideration of what to do about these 
habitat problems when its cause was an apparent overabundance 
of birds. Now, these are not exotic birds, they are protected 
under MBTA, but the situation was similar. There was 
considerable evidence that the impact of these birds in great 
numbers congregating in migration was doing such damage to 
their habitat that it may not sustain them over time. So I 
assembled an international stakeholders group that included 
pretty much all of those who have testified here to assess the 
need to reduce numbers of Arctic nesting geese as a method of 
avoiding further damage to the habitat with the long-term goal 
of habitat recovery.
    The stakeholders, in general, while not in full agreement 
about the methods, concluded that long-term habitat concerns 
and evidence of a rapid growth rate in the goose flocks 
warranted direct reduction of populations to protect the 
habitat. We, as stakeholders, did not need definitive cause and 
effect data to recommend action. In fact, many people thought 
that we had waited--we and the Canadians had waited too long to 
address a problem that we saw coming, which has some bearing on 
your questions about when have we known about some of these 
problems coming along.
    I happen to be an owner of a marsh near Centreville, 
Maryland for the last 24 years, a hunting marsh, and in my 
entire time there we have not had mute swan problems on it, but 
the general knowledge and concern in Chesapeake Bay about mute 
swans has been pretty common talk among people. It is just 
another influence that we didn't think we needed.
    This does not seem to be a situation envisioned by the 
drafters of the Migratory Bird Treaty Act, nor by the managers 
for many decades thereafter who have exercised the 
responsibility of bird protection. Exotics, in general, are 
something we know in our society now are becoming an increasing 
problem and we need very much to anticipate problems and take 
action when we can and not wait too long until the problem is 
insurmountable.
    Control of wildlife that are more abundant than people want 
in areas where people are is a growing problem, probably the 
biggest problem facing wildlife management in America, and it 
has affected a lot of species, both exotic and non-exotic. Some 
very common species are in that situation. So the major 
question is how do we respond to this? Modification of the 
Migratory Bird Treaty Act is certainly one clear approach. 
There have been a lot of people in my career who have wanted to 
reinterpret the Migratory Bird Treaty Act. I think from a long-
standing observer it is quite unfortunate that we are 
continuing the epidemic of court interpretation of laws and 
management of resources, and that seems to be what has happened 
in this case. If we move to amend the act, it really should be 
a pretty surgical approach that is very carefully designed to 
solve the specific problems with exotics and avoid expanding it 
into the desires of others who may have other agendas for the 
act.
    So I would simply conclude by thanking you for the chance 
to be here and acknowledging this as an important problem that 
has some parallels elsewhere in wildlife management in America. 
Thank you.
    [The prepared statement of Rollin D. Sparrowe follows:]

              Statement of Rollin D. Sparrowe, President, 
                     Wildlife Management Institute

    Mr. Chairman: I am pleased to offer testimony on administration of 
the Migratory Bird Treaty Act (MBTA), based on my previous experience 
with the U.S. Fish and Wildlife Service for more than twenty years, and 
my direct involvement as a professional conservationist working outside 
government, working closely with migratory bird management.
    From 1984 to 1989 I was Chief of Migratory Bird Management with the 
Service, and, from 1989 to 1991, was Deputy Assistant Director with 
oversight for migratory bird programs, including refuge management, law 
enforcement, and the Duck Stamp program. I was responsible for 
development of annual hunting season recommendations and held public 
meetings and listening sessions with the state wildlife agencies and 
the public. From 1984 through the late 1990s I was extensively involved 
with the U.S. and Canada in a dialogue seeking to amend the Migratory 
Bird Treaty to legally recognize the need for far-northern residents to 
be allowed to take migratory birds for food and other necessities 
outside the guidelines of the original treaty. I served on a task force 
that helped two Service directors pave the way for responsible 
amendment first with Canada, then Mexico.
    During that same period I had a lead role in drafting the North 
American Waterfowl Management Plan, and in its implementation both with 
the agency and later in my role at the Wildlife Management Institute. 
The Migratory Bird Treaty and the Migratory Bird Treaty Act were 
primary considerations in many international and U.S.-based discussions 
of migratory bird management, habitat needs and management, and 
enforcement.
    The list of birds considered covered under the MBTA was revised 
several times while I was with the Service, mainly to respond to 
taxonomic clarifications or new range information. I do not recall any 
changes made to accommodate management of exotic species. My personal 
understanding of MBTA is that it was not enacted to deal with exotic 
birds, but rather to provide a sound framework for protection of native 
migratory species moving between the countries involved in the 
treaties. It was well into the existence of the treaty and MBTA that 
such common nuisance species, such as English sparrows, rock doves, and 
starlings, became a recurrent problem. They are among species 
controlled daily across America because of damage that they do, and are 
not considered covered by MBTA.
    In my experience with migratory bird management through the Fish 
and Wildlife Service, the focus has been understood to be on 
maintaining populations of native species and avoiding unnecessary 
losses to human activities. It has not generally been viewed as a law 
directly designed to protect individual birds, unless they might be 
threatened or endangered, or unless the enforcement would make a point 
to the public that might preclude a larger number of deaths. In my 
professional interactions with Canada, and with people in the 
management and political arena across America, there has been a general 
feeling that literal enforcement bird by bird was in most cases not 
feasible, and not reasonable. We have struggled for decades with what 
to do about transmission lines and towers, buildings with bright 
windows that birds collide with, and a whole array of human activities 
that show no signs of diminishing in our lifetime. Reasonable efforts 
to solve problems associated with structures and human activities are 
entirely called for, and supported by everyone. More work undoubtedly 
needs to be done with that, but it would appear infeasible to any 
reasonable person to literally interpret the Migratory Bird Treaty Act 
as protecting the welfare of every bird across the continent.
    In large issues concerning the welfare of birds the consideration 
of how literal to be in the enforcement of MBTA inevitably comes up. I 
testified before administrative legal hearings held by the 
Environmental Protection Agency in seeking ways to reduce the damage 
caused by the use of chemicals on golf courses. There was considerable 
debate over whether the best course of action was enforcement 
concerning any bird death, or making a case of a widespread problem and 
seeking solutions through different management, use of different 
compounds, or outright ban of certain chemicals. This dilemma is common 
in migratory bird management in balancing the needs of birds against 
the needs of humans.
    In the 1990s, concern over the impact of arctic nesting white geese 
on their habitat during migration, led to broad consideration of what 
to do about a habitat problem when its cause was an apparent 
overabundance of birds. I assembled an international stakeholders group 
to assess the need to reduce numbers of arctic nesting white geese to 
avoid further damage to their habitats, with a long-term objective of 
affecting habitat recovery. While there was not agreement by all 
parties, stakeholders, in general, concluded that long-term habitat 
concerns and evidence of a rapid growth rate of goose flocks warranted 
direct reduction of populations to protect that habitat. In the end the 
Fish and Wildlife Service has allowed hunting seasons outside the 
normal recreational seasons, designed to directly reduce populations. 
We, as stakeholders, did not need definitive cause and effect data to 
recommend action.
    The issue of what constitutes a truly ``exotic'' species is itself 
difficult. The Service has resisted listing species under MBTA because 
of incidental occurrences and infrequent movements between continents. 
While mute swans, for example, may well be capable of joining other 
swans in migration and moving between continents, it is quite clear 
that the mute swan in America has come from release or escape of 
exotics. This does not seem to be a situation envisioned by the 
drafters of MBTA, nor of the managers for many decades thereafter who 
have exercised the responsibility of bird protection. Exotics are, in 
general, a negative influence and should not be encouraged in the wild.
    Control of wildlife that become more abundant than people 
inhabiting the same area's desire, or that come into direct conflict 
with people or pets, or threaten either crops or people's well-being 
have grown to be one of the biggest issues in wildlife management in 
North America. Symposia through professional societies, focus on 
alternative solutions, and a considerable amount of public disagreement 
will likely continue. Expecting an almost one-hundred-year-old statute, 
although a a very valuable law, to cover the problems of today may not 
be a reasonable solution to many of these problems.
    An important question is what would it take to modify the Migratory 
Bird Treaty Act if that were sought as a solution? Hazards seem to 
include action by those who wish to either expand the reach of MBTA, or 
reduce it. In either case rational conservation may suffer. Yet, 
amendment of MBTA may well be the most direct way to solve modern 
problems, such as the exotic mute swan. If so, it must be attempted 
surgically to solve the problem at hand, and not opened to wider 
agendas for change.
    In conclusion, the mute swan is a problem for native habitats and 
species. Including it under MBTA protection seems a departure from many 
decades of useful discretion in application of MBTA. There seems to be 
abundant experience with MBTA that argues for direct action now based 
on what we know, to directly reduce mute swan populations and influence 
as much as possible. Thank you for this opportunity to testify.
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Dr. Sparrowe.
    Next is the friend of the Maryland General Assembly, post-
graduate, the Honorable Gerald Winegrad. Welcome, Gerry.

  STATEMENT OF GERALD W. WINEGRAD, VICE PRESIDENT FOR POLICY, 
                   AMERICAN BIRD CONSERVANCY

    Mr. Winegrad. Thank you, Mr. Chairman. Gerald Winegrad, I 
am vice president for Policy at American Bird Conservancy, and 
as you were alluding to, I am a recovering politician. American 
Bird Conservancy is a national non-profit organization whose 
sole purpose is the conservation of wild native birds in the 
Americas. Our staff consists of leading ornithologists, bird 
enthusiasts, other professionals and recovering politicians and 
attorneys like myself.
    American Bird Conservancy is very concerned over the 
application of the Migratory Bird Treaty Act of 1918 to 
introduce non-native avian species. Actually, we believe it is 
a misapplication and that until December 2001 when the Hill 
case was decided by the U.S. Court of Appeals for the District 
of Columbia Circuit, everyone acted and everyone managed and 
everyone operated in the United States as if the Migratory Bird 
Treaty Act truly applied only to migratory native species. That 
act, based on the mute swan here in Maryland and its 
management, overturned over a half century of management and 
management decisions.
    Under the Migratory Bird Treaty Act of 1918 and the various 
conventions with the other countries, the Fish and Wildlife 
Service administers this Act and lists by Code of Federal 
Regulation publication all the birds covered specific to 
species under the Migratory Bird Treaty Act, and that is at 50 
CFR 10.13. In publishing the most recent list, the United 
States Fish and Wildlife Service specifically alluded to the 
fact that in that publication, and I will quote, and this was 
October 12, 2001, ``We do not list species whose appearance in 
the United States is strictly the result of intentional human 
introductions.'' So the case is why we are here today, Mr. 
Chairman, and what the American Bird Conservancy is proposing 
to you, to this Subcommittee, to the Committee and the Congress 
that the Migratory Bird Treaty Act, which we understand is the 
basic law that has protected birds in this country, that the 
Migratory Bird Treaty Act be amended to exempt all introduced 
non-native species. This amendment would do no more than simply 
return the status of the Migratory Bird Treaty Act in the 
United States to the pre-Hill case status for introduced non-
native species. We would suggest, as Rollie and others have 
alluded to, that any such amendment be very carefully drafted 
to avoid any misapplication of the amendment and to make clear 
the amendment was limited to simply preventing the MBTA's 
application to introduce non-native species.
    Without such an amendment, basically, if you extend it to 
Hill logic, you would be applying this to a minimum of 86 total 
species of non-native birds that have established populations 
here in the United States and that are in families covered by 
the migratory bird conventions and hence a judge could rule 
that indeed you would have to go through the full-blown 
permitting process, perhaps EIS, at least environment 
assessments for each of these 86 species, which would put the 
United States Fish and Wildlife Service in turmoil in efforts 
to manage these species because of the time and money that 
would be devoted any time a management plan called for an MBTA 
take permit or lethal control. Any group or a person that 
considered these animals part of their concern, that is they 
were either, as someone said about the mute swan, they were 
their aquatic pets, that they could go in and sue and then 
monkey wrench any lethal control of these species.
    In addition to the 86 species that would be or could be 
covered by the MBTA under the Hill extension, there are a total 
just in one State, Florida, and I have submitted this to the 
Committee, the documentation, 196 non-native introduced species 
of birds in one State. And of those, 73 are in families that 
would be covered by the Migratory Bird Treaty Act, and most of 
the ones that are excluded, 74 of 125, are in a family not 
covered, and that is the parrots and parakeets. In one county 
alone, Miami-Dade County, there are 120 species of exotics 
flying around, some of them establishing breeding colonies. So 
without this amendment, literally all of the rest of the 
species of migratory birds that need protection that Chan 
Robbins talked about you would throw a monkey wrench into much 
of the money resources being devoted to managing and bringing 
back and recovering those populations because of the need to 
deal with all of these exotics invasive species.
    I want to point out specifically that one of the birds that 
would be covered under the MBTA expansion would be the rock--
what was known as the rock dove, now the rock pigeon, everyone 
calls them pigeons. Those birds were introduced by European 
settlers in the 17th century for food and have caused roughly 
half of the total damage caused by avian species in the United 
States property damage and that's about $1.2 billion a year. 
You would then, technically, if you went into court, have to do 
a full NEPA compliance document, if not just an environmental 
assessment, a full-blown EIS examining their populations and 
going through this, and eventually you could go into court 
again and have a judge just in the recent case in September say 
that, ``This isn't enough, I'm staying, temporary staying any 
control of this species.''
    Finally, we will get to the issue that brought us here 
probably, the mute swan. The mute swan was introduced into the 
United States. It is a Eurasian species. Everyone thinks they 
came from Europe, but technically they were brought from Europe 
here but they were not naturally occurring in Europe. It is a 
Eurasian species. It was brought here from England where they 
graced the lords' and princesses' and the kings' ponds and 
manors. And that was back in the 1800s.
    Now, it is an ornamental bird. Five mute swans were brought 
into Maryland on a pond in Talbot County. Those birds escaped. 
They were three and two, male and female mixed, and those birds 
escaped into the wild. Those birds from those five in the 
Chesapeake Bay country spawned a population now that exceeds 
4,000 animals, and that population, as you have heard if you 
read Larry Hindman's paper or do other population projections, 
it could grow to as many as 38,500 by the year 2010 because 
from 1986 to 1999 the mute swan population increased an 
incredible 23 percent a year and it slowed to 10 percent from 
1993 to 1999. This is all in Hindman's paper.
    So if you take the low projection, you would be at over 
11,300 birds. If you take the high one, you are at 38,000 with 
the consequent impacts on our native wildlife and on submerged 
aquatic vegetation. Nationally, we have 21,400 mute swans, over 
14,000 in the Eastern Flyway. Why we advocate and have 
advocated that we need to control mute swans, we are a bird 
group, bird enthusiasts, birds are us 100 percent of the time, 
and we have taken the position that not only do we support 
Maryland's efforts to control mute swans but 25 groups signed 
onto a letter, which I have submitted for the record and I have 
here, including my friends here from the Wildlife Management 
Institute and National Audubon and many other leading 
ornithological and national conservation groups, including the 
International Association of Fish and Wildlife Agencies, the 
Cornell Lab of Ornithology, not only supporting lowering those 
numbers by two-thirds, which was in the EA that was thrown out 
by the--or the temporary restraining order stopped action 
under, but going beyond that and eliminating all mute swans 
from the wild. And we do that with only very studied scientific 
basis as well as very much concern for people that like swans, 
as well as us as bird enthusiasts because of the damage by this 
exotic species.
    Let me outline quickly some of that damage that we see. One 
of the emphasis has been at this hearing and has been seemingly 
consistently on submerged aquatic vegetation. I want to start 
with a different perspective, and that is the impact on 
displacement of other native birds. You have heard mention here 
very quickly of mute swans displacing the only natural breeding 
colony of black skimmers and of least terns in Chesapeake Bay. 
Both of those species are State listed, they are listed by the 
United States Fish and Wildlife Service as national species of 
birds of management concern that is required under the Fish and 
Wildlife Conservation Act to be published to prevent birds from 
going on the endangered species list. So these birds are not 
only State listed but they are also of national concern, and so 
you have mute swans documented in Tar Bay, Dorchester County, 
in your congressional district being displaced by the non-
indigenous, introduced, non-native mute swan. And in addition, 
there were also common terns which are a species of concern in 
the State of Maryland and also another species that is listed 
as a species of national concern.
    In addition to that, there is growing concern that mute 
swans are impacting by their incredible amount of submerged 
aquatic vegetation that they eat and destroy other species that 
are in some population trouble, such as black ducks, 
potentially, and also our native tundra swans. In fact, in the 
Maryland Mute Swan Task Force Report, one of the leading swan 
experts in our country who is also--he ia a Ph.D. as well as a 
medical doctor, he is quoted as saying that he believes that 
there is increasing evidence that they are impacting native 
tundra swans.
    Finally, shifting to the submerged aquatic vegetation, one 
of the disturbing things to me, as someone that has been 
involved in the bay cleanup since its inception 20 years ago, 
we are celebrating this month with the signing of the bay 
agreement in 1983, is this rationalization, this thing of a 
minimization that if you really deal with agriculture folks, 
for instance, that is a prime source of phosphorous and 
nitrogen to the bay, the farmers will tell you almost every 
time you really ought to deal with sewage treatment plants, 
they are the real problem. If you deal with municipal sewage 
treatment plants, they will tell you it is industrial 
discharges and farmers that really cause the problem. If you 
deal with power plants and automobile exhaust bringing down 
atmospheric nitrogen, they will tell you you should deal with 
sewage treatment plants. It is never the person or the entity 
that is causing the problem, no matter what documentation you 
can show.
    And without going into the literature, I have submitted it 
to the Committee, the studies show that adult mute swans, which 
are the biggest bird species in the Chesapeake Bay, consume an 
incredible amount of bay grasses a day, somewhere around eight 
pounds. The male is bigger, males can weigh up to 30 pounds or 
more and average in the order of somewhere in the 20 pounds, 
over 21 pounds, 25 pounds, and females may be around average of 
21 pounds, and they are consuming 30-some, 40-some percent of 
their body weight every day in submerged aquatic vegetation, 
which is the prime--the vast majority of their diet in the 
Chesapeake Bay. So when you take that computation out and they 
are here 24-7, 365 days a year, they are rooting up the grasses 
in the spring when the seeds are being set. They just don't eat 
the grass itself. It is not just what they consume, they 
destroy a lot of the other grasses by the roots, but the 
computations show, and this is in the Fish and Wildlife Service 
EA, it is in Larry Hindman's paper, it is in the paper by Dr. 
Matt Perry, it is about 10 to 12 percent of the total biomass 
of bay grasses are consumed by mute swans. That is significant. 
Whether phosphorous and nitrogen--phosphorous and nitrogen 
clearly have to be cleaned up to prevent the decline of bay 
grasses, but that is nothing to be overlooked and say, well, 
mute swans aren't a problem, we should let them proliferate, 
they are beautiful birds. We need to address the problem of the 
mute swan.
    And I will end by saying in the judge's decision the judge 
stated in his decision, obviously from the swan's standpoint, 
that he would--the court will essentially speak for the mute 
swans. We ask the Congress and this Committee to speak for 
black skimmers, least terns, common terns, black ducks, tundra 
swans and all of the remaining species in the Chesapeake that 
are impacted by these exotic species and to amend the Migratory 
Bird Treaty Act to exempt out all non-native introduced 
species.
    [The prepared statement of Gerald W. Winegrad follows:]

      Statement of Gerald W. Winegrad, Vice President for Policy, 
                       American Bird Conservancy

    I am Gerald W. Winegrad, Vice President for Policy of the American 
Bird Conservancy. ABC is a national non-profit organization dedicated 
to the conservation of wild, native birds in the Americas. ABC has more 
than 300 partner organizations in the Americas primarily through its 
leadership roles in the North American Bird Conservation Initiative, 
Partners in Flight, ABC's Policy Council, and ABC's international 
network. The Policy Council, with which I work, has more than 80 member 
organizations that work collaboratively for bird conservation, and 
these member organizations include the country's most prestigious 
ornithological and conservation groups. ABC has ornithologists and 
other staff headquartered in Washington, D.C., and The Plains, 
Virginia. We also have offices and staff in New Hampshire, Maine, 
Maryland, Indiana, Missouri, Colorado, Montana, and Oregon.
    American Bird Conservancy is concerned over the application of the 
Migratory Bird Treaty Act of 1918 (MBTA)* (see below), codified as 16 
United States Code, Section 703 et seq., to introduce non-native, avian 
species. Bird species in the United States protected by the MBTA are 
listed in regulations in 50 CFR 10.13. Our concern over providing the 
full protection of the MBTA to introduced non-native species surfaced 
with the court decision of Hill v. Norton, 275 F.3d 98 (D.C. Circuit 
2001). The court in Hill ruled that the introduced non-native Mute Swan 
(Cygnus olor) was covered by the MBTA and, therefore, should be treated 
as a protected species under the MBTA. Previously, this exotic species 
was not afforded Federal protection and management was left to the 
states and to federal agencies. All such introduced non-native avian 
species had not been included as birds covered by the MBTA and were 
thus not afforded Federal protection. Federal, state, and local 
wildlife managers had previously been free to appropriately control 
introduced non-native birds as professional management standards 
required.
    Next to habitat loss and alteration, introduced non-native species 
(also termed invasives or exotics) have been identified as one of the 
greatest threats to birds in the U.S. Up to 46% of the plants and 
animals Federally listed as endangered species have been negatively 
impacted by invasive species.
    According to the U.S. Fish and Wildlife Service, at least 86 
species of introduced, non-native birds belong to families covered by 
the MBTA, and thus could be considered protected by the MBTA if the 
logic of the Hill decision were fully extended. Unless the Congress 
acts to restore the pre-Hill case exclusion of introduced non-native 
birds, our native birds, other wildlife, ecosystems, and human health 
and property may be impacted by providing MBTA protection to 86 species 
of non-native birds.
    American Bird Conservancy supports amending the MBTA to exempt all 
introduced non-native species. This amendment would simply restore the 
pre-Hill status for these introduced species. We would suggest that any 
such amendment be very carefully drafted to avoid any misapplication of 
the amendment and to make clear the amendment was limited to simply 
preventing the MBTA's application to introduced non-native species.
    Without such an amendment, the U.S. Fish and Wildlife Service, 
already significantly underfunded for its migratory bird work, could be 
tasked with developing management strategies for at least 86 species of 
introduced non-native birds. Completing such management plans with 
attendant NEPA requirements and potential law suits whenever a 
management plan included lethal controls would be extremely costly and 
would shift limited resources from native migratory and nonmigratory 
species to introduced species. Further, delays in properly managing 
introduced non-native avian species will cause negative impacts to 
native avian species and damage to other resources.
    Of the 852 native avian species found in the U.S., 778 are 
migratory nongame birds and roughly 350 are migratory songbirds 
species. About 250 of these songbirds are neotropical migrants that 
migrate between summer breeding areas in the United States and Canada 
and wintering areas in Latin American and the Caribbean. Many of these 
migratory song birds are in serious decline. There has been 
documentation of an overall 50% decline in the volume of annual flights 
over the Gulf of Mexico in the last twenty years of neotropical 
migratory songbirds.
    Of the 852 native birds found in the U.S., 90 are listed as 
endangered or threatened under the Endangered Species Act. Another 131 
species are listed by the U.S. Fish and Wildlife Service as being Birds 
of Management Concern, meaning that they may become candidates for 
listing under the ESA without additional conservation action or that 
special attention is warranted to prevent declines. This latter list is 
mandated by Congress under 1988 amendments to the Fish and Wildlife 
Conservation Act and was updated this year. Thus, over one-quarter of 
all U.S. native bird species are either endangered, or threatened with 
extinction, or may become candidates for ESA listing without additional 
management measures. Priority must be given to the protection and 
recovery of these species, as well as to Partners in Flight priority 
species in bird conservation regions. Introduced non-native species not 
only negatively impact some of these listed species but could also 
divert needed resources from the management of our native species.
    The 86 species of introduced, non-native birds include: 16 species 
of waterfowl e.g., Bar-headed Goose, Black Swan, Mute Swan, Graylag 
Goose, and Swan Goose (all common in collections of exotic waterfowl); 
19 species of pigeons and doves e.g., Bar-shouldered Dove, Eurasian 
Collared-Dove, Rock Pigeon, and Zebra Dove; and 35 species of songbirds 
e.g., White-rumped Shama, Common Canary, Blue-gray Tanager, Varied Tit, 
and Red-crested Cardinal. All of these species are competitors or 
potential competitors of native birds.
    Of these 86 species, about 17 have become established, some with 
serious ecological consequences, others with unknown consequences. For 
example, the Rock Pigeon (formerly known as Rock Dove) accounts for an 
estimated $1.2 billion in damages annually in the U.S., fully one-half 
of the $2.1 billion in damages attributed to all exotic bird species 
combined. This species was brought to the United States by European 
settlers in the 17th century for food.
    Eurasian Collared-Doves were brought to the Bahamas in cages and 
escaped, eventually flying into south Florida. Now, these birds are 
firmly established and are breeding in Florida, Georgia, South 
Carolina, and Louisiana. These exotic birds have shown an ability in 
Europe to rapidly expand range and increase populations and are 
expanding rapidly to the north and west in the U.S.
    Muscovy Ducks are not now listed under the MBTA and are another 
introduced non-native species widely established in Florida and around 
the U.S. Introduced in the mid-1960's from Venezuela, these ducks are 
found around the U.S. as farm pond and park animals. They interbreed 
with Mallards.
    Black Swans were first noted in Florida in 1961 and are now well-
established in at least six counties. These birds are successfully 
breeding and consume large amounts of vegetation and may create 
conflicts with native avian species.
    One of the more recent introductions that could be covered by the 
MBTA under Hill is the Purple Swamphen, in the same family as rails. 
This exotic species was first noticed in Broward County, Florida, in 
December 1996. The birds are spreading in south Florida and there is a 
sizeable breeding population. The population in the wild probably 
exceeds 200 birds. Researchers believe that the source of the birds was 
Miami MetroZoo, which lost eight Swamphens following Hurricane Andrew 
in August 1992.
    Purple Swamphens use Florida's abundant wetlands, have high 
reproductive potential, and are expanding their range. Researchers note 
that ``....there is no similar avian precedent available in Florida--or 
North America--to compare to Purple Swamphens.'' Discovery, Origin, and 
Current Distribution of the Purple Swamphen (porphyrio porphyrio) in 
Florida, William Pranty et al. (2000). Pranty et al. state that, ``In 
their native range, Swamphens are often observed away from wetlands and 
can damage grain and vegetable crops (Ripley 1977, del Hoyo et al. 
1996), so the impact of Swamphens in Florida may extend beyond wetland 
species. Although they are primarily vegetarians, Swamphens are known 
to prey upon mollusks, fish, lizards, frogs, snakes, bird eggs and 
nestlings, and other small birds (Ripley 1977, Cramp and Simmons 1980). 
Purple Swamphens occasionally move long distances (up to 1000 km; 
Grussu 1999), thus they potentially could colonize a large part of the 
state.''
    Biologists believe that as Purple Swamphens increase their range 
and numbers, there is the potential that they could become another 
invasive species threat to Florida's native wildlife and the imperiled 
Everglades system.
    Other introduced non-native species with established U.S. 
populations that are not currently listed under the MBTA, but could be 
required to be listed in 50 CFR 10.13 under the logic of the Hill 
decision include:
      Ringed Turtle-Dove (Florida, Texas, and Puerto Rico);
      Spotted Dove (California and Hawaiian Islands);
      Japanese Bush-Warbler (Hawaiian Islands);
      Saffron Finch (Hawaiian Islands and Puerto Rico);
      Yellow-billed Cardinal (Hawaiian Islands); andYellow-
fronted Canary (Hawaiian Islands and Puerto Rico).
    Two of our most numerous bird species are introduced, non-native 
species: European Starlings and House Sparrows. Both fall outside the 
parameters of the MBTA as they don't belong to covered families of 
birds. They are therefore not subject to protection under the MBTA. 
European Starlings were brought over from Europe in the 1890's by 
private individuals in New York who released them into Central Park as 
part of a plan to introduce all species of birds mentioned in 
Shakespeare. This bird has been documented to take over nesting holes 
for cavity nesting birds such as Eastern Bluebirds and native 
woodpeckers. House Sparrows also use nesting cavities that would 
otherwise be available to such species as Eastern Bluebirds. House 
Sparrows were introduced in 1850 when eight pairs were released in 
Brooklyn to control canker worms, and there were numerous releases into 
the 1880's for aesthetic reasons and for insect control e.g. drop worm.
    There are more than 125 other species of exotic, introduced, non-
native avian species whose families are not covered by the MBTA and 
would be beyond the reach of the Hill decision. Author Bill Pranty 
documents the occurrence of 196 exotic avian species in Florida, 73 
species that could be covered by Hill and 123 that would not. An 
amazing 125 exotic avian species have been reported in one county, 
Miami-Dade. Of the 123 exotic species in Florida excluded from the 
MBTA, 74 species are parrots (Psittacidae are not covered under the 
MBTA). At least 27 exotic avian species are known to or thought to 
breed in Florida that could be covered under the MBTA under the Hill 
case rationale. See the attached: The Exotic Avifauna of Florida, 
William Pranty (July 2001).
    Introduced non-native species known to breed in Florida and not 
previously mentioned include the Spot-breasted Oriole, first noted in 
1949, and Great and Common Black-Hawks, first noted in the 1970's. 
These and other Florida exotic breeders also could be covered under the 
Hill rationale.
    The 86 species of introduced non-native birds that could be 
protected by the MBTA under Hill does not include MBTA-protected 
species that have been introduced and have become established in 
localities outside their native ranges in North America, e.g., resident 
Canada Goose, Gadwall in Florida, and Northern Cardinal in California 
and Hawaii. Nor does the list of 86 species include a myriad of exotic 
species, particularly waterfowl and raptors, that are bred in captivity 
in the U.S. Should these latter species escape or be released, they 
could establish breeding colonies in the U.S. and gain MBTA protection.
CASE EXAMPLE: MUTE SWANS.
    The Mute Swan (Cygnus olor) was first brought to the U.S. from 
Europe in the 1800's as an ornamental bird. Five Mute Swans, previously 
brought as ornamentals to a pond in Talbot County, Maryland, were 
released in 1962. These birds spawned a current population of about 
4,000 Mute Swans in Chesapeake Bay country. There are more than 14,000 
in the Eastern Flyway and, nationwide, the Mute Swan population has 
grown to 21,400. The Bay Mute Swan population increased at an annual 
rate of about 23% between 1986-1999 and 10% between 1993-1999. If these 
growth rates continued, the population could reach 11,300 (at 10%) to 
38,500 (at 23%) by 2010.
    The introduced non-native Mute Swan, the subject of the Hill case, 
is an example of an invasive avian species that has demonstrably 
negative impacts on other species and resources, including native birds 
listed under the Congressionally mandated Birds of Management Concern 
list. These species include Black Skimmers, Least Terns, and Common 
Terns.
    Federal, state, and local wildlife managers were free, until the 
Hill case, to control the exotic Mute Swan without Federal protections 
and permitting. Hill changed that. In both 2002 and 2003, the U.S. FWS 
issued 66 MBTA permits for the lethal take of Mute Swans. When the 
Maryland Department of Natural Resources (as a result of the Hill case) 
was forced to apply for, and was granted, an MBTA permit in March 2003 
to control Mute Swans by lethal take, a law suit was filed under NEPA 
and other laws by The Fund for Animals and others. DNR then withdrew 
the permit while the FWS completed a NEPA Environmental Assessment.
    Upon completion of the Environmental Assessment in July 2003, DNR 
applied for, and was granted, another MBTA lethal take permit in August 
to control Mute Swans. Again, The Fund for Animals and others sued. On 
September 9, 2003, Judge Emmet G. Sullivan of the U.S. District Court 
for the District of Columbia, issued a temporary injunction blocking 
DNR from any lethal control of Mute Swans. The Judge so thoroughly 
criticized the Environmental Assessment and FWS NEPA compliance, that 
the Justice Department attorneys settled the case, agreeing not to 
issue further MBTA permits for Mute Swan take. Thus, Maryland and all 
other states and the Federal government have ceased any control of Mute 
Swans. This will have serious consequences for native birds and other 
resources such as submerged aquatic vegetation (SAV) as mute swan 
populations rapidly expand.
Displacement of Native Birds.
    The aggressive Mute Swan has attacked and killed other birds and 
has extirpated breeding colonies of waterbirds. In Maryland, as noted 
in the Maryland Mute Swan Task Force Report, ``One of the more serious 
conflicts between mute swans and native Maryland wildlife occurred in 
the early 1990's, when a molting flock of about 600-1,000 nonbreeding 
mute swans excluded black skimmers (Rynchops niger), a state threatened 
species; least terns (Sterna antillarum), classified as a species in 
need of conservation; and common terns (Sterna hirundo) from using the 
oyster shell bars and beaches in the Tar Bay area of Dorchester County 
for nesting sites.'' Tar Bay was the only remaining natural nesting 
site for Least Terns and Black Skimmers in Chesapeake Bay. Black 
Skimmers, Least Terns, and Common Terns are all native birds listed as 
of National Concern under the Congressionally mandated Birds of 
Management Concern.
    According to Maryland DNR biologists writing in Status and 
Management of Mute Swans in Maryland, Larry Hindman and William F. 
Harvey, IV of Maryland DNR (2003):
      Observations in Maryland and findings reported in 
scientific literature support the fact that territorial mute swans can 
be very aggressive towards other waterfowl, displacing native species 
from their breeding and foraging habitats (Willey 1968, Stone and 
Masters 1970, Kania and Smith 1986, Ciaranca 1990). Mute swans occupy 
and defend relatively large territories of wetland habitat during 
nesting, brood rearing and foraging. Not only do they displace native 
waterfowl from breeding and staging habitats, they have been reported 
to attack, injure or kill other wetland birds (Willey 1968, Stone and 
Masters 1970, Kania and Smith 1986, Ciaranca 1990). In Maryland, mute 
swans have been observed killing mallard ducklings, Canada goose 
goslings, and mute swan cygnets.
      The most serious instance of conflict between native 
wildlife and mute swans occurred in the early 1990's, when a large 
flock of mute swans (600-1,000 swans) caused the abandonment of nesting 
sites for state-threatened colonial nesting birds at Tar Bay in 
Dorchester County. These colonial nesting birds nested on oyster shell 
bars and beaches that were used by swans as loafing sites. Tar Bay was 
the only area in the Maryland portion of the Bay where black skimmers 
and least terns nested on natural sites (Therres and Brinker 2003).
      There is growing concern among wildlife managers that the 
increase in mute swans may be playing a role in the failure of tundra 
swans to increase, as they have done in other areas of the Atlantic 
Flyway.
      The large mute swan population in Maryland consumes SAV 
that might otherwise be available to native waterfowl. This competition 
for space and food imposed by mute swans reduces the carrying capacity 
of breeding, staging, and wintering habitats for native species of 
migratory waterfowl in Chesapeake Bay where mute swans are established.
    As noted in the Maryland Mute Swan Task Force Report, ``Mute swans 
are believed to pose a significant threat to the well-being of the 
Chesapeake Bay tundra swan population (W.J.L. Sladen, Swan Research 
Program at Airlie, VA, pers. commun.)''. In a Rhode Island study, one 
pair of mute swans vigorously defended a five-acre pond, preventing use 
by other waterfowl (NY DEC 1993). In central New York, three pairs of 
captive mute swans killed at least 50 ducks and geese (mostly young 
birds) on a small zoo pond over a 20-month period (NY DEC 1993). Such 
behavior may be a factor in inhibiting the recovery of such native 
species as Black Ducks. In addition, Mute Swans consume SAV preferred 
by many native waterfowl species.
Destruction of Bay Grasses.
    Mute Swans consume huge amounts of Submerged Aquatic Vegetation 
(SAV). Mute Swan average weight is about 25 pounds for the adult male; 
the female, 21 pounds. Some Mute Swans may weigh more than 30 pounds. 
The male Mute Swan consumes 34.6% of their body weight per day and 
females consume 43.4%. See Fenwick, G.H., 1983, Feeding behavior of 
waterfowl in relation to changing food resources in Chesapeake Bay. 
Ph.D. dissertation, Johns Hopkins University, Baltimore, Md. Based on 
this study, the Maryland Task Force Report notes that ``Assuming that 
an adult/subadult mute swan consumes an average of 3.789 kg wet weight 
of SAV per day (Willey and Halla 1972), a population of 4,000 swans has 
the potential to consume more than 12 million pounds of SAV annually 
(L. Hindman, MD DNR). Consumption of immature seeds, removal of biomass 
before plant maturation, and uprooting of whole plants may have a very 
negative effect on SAV with minimal consumption (M. Naylor, MD DNR, 
pers. commun).''
    Scientists at the Patuxent Wildlife Research Center have concluded 
a study documenting that the introduced Mute Swans' diet is composed 
nearly entirely of vegetation during all seasons of the year. Mute 
Swans relied heavily on SAV with Widgeon Grass (Ruppia maritima) 
constituting 56% and Eel Grass (Zostera marina) 43% of their food. (see 
Perry et al. 2000). These scientists noted localized depletions (eat-
outs) of SAV during the growing period. The FWS Environmental 
Assessment notes that the current population of Chesapeake Bay Mute 
Swans consumes almost 10 percent of the total biomass of submerged 
aquatic vegetation in the Bay. These grasses are critical to many other 
avian species, to recovery of fisheries (blue crabs), and to the 
general water quality of the Bay and other water bodies.
    Hindman and Harvey (2003) found that: ``Adverse ecological effects 
are being caused by the large mute swan population in the Bay and these 
impacts will increase if the population continues to grow. ... A simple 
mathematical extrapolation of SAV consumption by mute swans suggests 
that 4,000 mute swans may consume up to 12 million pounds of SAV 
annually, representing about 12% of the SAV biomass in the Bay (Perry 
et al. 2003). This level of impact is greatest on the mid-Eastern Shore 
where high numbers of mute swans concentrate and acreage of SAV is 
small. This level of grazing, especially during spring and fall SAV 
growth and reproductive periods and in SAV restoration plantings is an 
impediment to achieving the objectives of the Chesapeake 2000 
Agreement, specifically the restoration of 114,000 acres of SAV by 
2010.''
    Also from the Hindman and Harvey 2003 publication:
      Unlike the native tundra swans (Cygnus columbianus) that 
only spend winter months in the Bay, the nonnative mute swan inhabits 
the Bay year-round. Mute swans utilize large amounts of emergent 
vegetation (e.g., Juncus romerianus, Phragmites communis, Spartina 
alternaflora, Typha latifolia) in Maryland for nest building. They also 
feed exclusively in shallow wetlands where they consume large amounts 
of SAV (Berglund et al. 1963, Owen and Kear 1972, Birkhead and Perrins 
1986).
      Because adult mute swans tend to paddle and rake the 
substrate to dislodge SAV and invertebrates for them and their cygnets, 
additional SAV is destroyed and uprooted that is not eaten (Owen and 
Kear 1972, Birkhead and Perrins 1986). At high densities, mute swan can 
overgraze an area, causing a substantial decline in SAV at the local 
level (Cobb and Harlan 1980, Mountford 2003).
      The removal of large quantities of SAV and the physical 
impact of the grazing upon SAV by mute swans reduces the capacity of 
the remaining SAV beds in the Bay to support wintering waterfowl and 
other fish and wildlife populations.
      Mute swans forage on SAV shoots before they can mature. 
This grazing during the spring and summer growing season has been shown 
to reduce plant survival and reproduction, reducing SAV abundance in 
subsequent years (Allin and Husband 2000, Bortolus 1998, Sondergaard et 
al.1996). Over time, areas with high densities of mute swans exhibit a 
decrease in plant diversity and abundance, sometimes becoming devoid of 
SAV (Naylor 2003).
      SAV is critical to the health and well-being of a myriad 
of Bay organisms. Not only does SAV protect water quality and prevent 
erosion, it also provides food and shelter for fish, shellfish, 
invertebrates, and waterfowl (Hurley 1991). For example, research has 
shown that the density of juvenile blue crabs is 30 times greater in 
SAV beds than in unvegetated areas of the Bay (Naylor 2003).
Strong Scientific and Conservation Support for Removal of Mute Swans.
    Because of these serious concerns over Mute Swans that have been 
scientifically documented, twenty-five groups dedicated to bird 
conservation and science joined together to support the U.S. FWS EA's 
proposed action that was stopped by the September 9, 2003, Court 
action. These groups went even further--supporting removal of all 
introduced non-native Mute Swans from the wild in the U.S. The groups' 
letter is attached with the supporting basis for advocating the removal 
of all Mute Swans from the wild. These groups include a number of 
Maryland groups, such as the Maryland Ornithological Society, Audubon 
Naturalist Society of the Central-Atlantic States, and the Delmarva 
Ornithological Society, as well as other such prestigious 
ornithological entities as the Cornell Laboratory of Ornithology, 
Cooper Ornithological Society, The Waterbird Society, and Archbold 
Biological Station. Other groups signing-on include the International 
Association of Fish and Wildlife Agencies, National Audubon, Wildlife 
Management Institute, Environmental Defense (EDF), Ducks Unlimited, 
Izaak Walton League of America, and American Bird Conservancy.
    Also attached is ABC's more detailed letter of comment to the 
Maryland DNR Mute Swan Task Force.
    The Mute Swan is an introduced non-native species, no different 
from other invasives in their potential for damage to native species 
and ecosystem functions, except they are big and aesthetically pleasing 
to humans. The Mute Swan has demonstrably negative impacts on other 
species, including native birds. The Congress under Rep. Gilchrest's 
leadership wisely appropriates considerable sums to eradicate all 
nutria on Maryland's Eastern Shore by shooting and trapping them. 
Because the nutria is a big rat-like marsh rodent not very 
aesthetically pleasing to humans, not much opposition surfaced to this 
eradication. Maryland fights vigorously to control snakehead fish, 
phragmites, and other invasives. All these species are destructive to 
native plants or animals and need to be removed from the wild. The 
Federal government and Maryland have even prevented the introduction of 
a foreign oyster to the Bay for years. And yet now, wildlife mangers 
are prevented from controlling another introduced non-native species 
that causes documented damage to other avian species and to bay 
grasses, the Mute Swan.
    The proper management of Mute Swans has been thwarted by the Courts 
and management of many of the 86 other species may be thwarted in the 
future without Congressional action. We ask this Subcommittee, the 
House Resources Committee, and the Congress to amend the MBTA to exempt 
all introduced non-native species of birds from coverage. Judge 
Sullivan stated in his September 9, 2003, opinion, ``The Court will 
essentially speak for the mute swans...''. We ask the Congress to speak 
for Black Skimmers, Least Terns, Common Terns, Black Ducks, Tundra 
Swans, and the many other species of native wildlife and Bay grasses, 
that have been, or may be, adversely affected by a growing Mute Swan 
population and by other introduced non-native birds.
    We at ABC are individually and organizationally committed to the 
conservation of native wild birds in the Americas and we are dedicated 
bird enthusiasts. We urge Congressional action to protect these native 
birds by amending the MBTA to exclude all introduced non-native 
species.
*The Migratory Bird Conventions (from page 1).
    The United States recognized the critical importance of 
internationally coordinated management of migratory birds by ratifying 
bilateral conventions for their conservation with Canada (Convention 
for the Protection of Migratory Birds with Great Britain on behalf of 
Canada 1916) and Mexico (Convention for the Protection of Migratory 
Birds and Game Mammals-Mexico 1936), and for the conservation of 
migratory birds and their habitats with Japan (Protection of Birds and 
Their Environment- Japan 1972) and Russia (Conservation of Migratory 
Birds and Their Environment-Union of Soviet Socialist Republics 1978), 
collectively known as the migratory bird conventions.
    The Migratory Bird Treaty Act of 1918 (MBTA), codified as 16 United 
States Code, Section 703 et seq., implements these conventions in the 
U.S. and has served as the basic U.S. law governing the protection of 
avian species. The first convention with Canada and the original MBTA 
were enacted by Congress because of the wanton slaughter of birds for 
food, feathers, and recreational pursuits that had led to extinctions 
and great declines in may species.
    Bird species in the United States protected by the Migratory Bird 
Treaty Act of 1918 are listed in 50 CFR 10.13. The migratory bird 
conventions impose substantive obligations on the United States, 
Canada, Mexico, Japan, and Russia for the conservation of migratory 
birds and their habitats, and articulate important conservation 
principles, such as:
      To conserve and manage migratory birds internationally;
      To sustain healthy migratory bird populations for 
consumptive and non-consumptive uses;
      To provide for, maintain, and protect habitat necessary 
for the conservation of migratory birds; and
      To restore depleted populations of migratory birds;
    Under the provisions of the U.S. Migratory Bird Treaty Act, it is 
unlawful ``by any means or manner to pursue, hunt, take, capture [or] 
kill'' any migratory birds except as permitted by regulations issued by 
the U.S. Fish and Wildlife Service. The term ``take'' is not defined in 
the MBTA, but the U.S. Fish and Wildlife Service has defined it by 
regulation to mean to ``pursue, hunt, shoot, wound, kill, trap, capture 
or collect'' any migratory bird or any part, nest or egg of any 
migratory bird covered by the conventions, or to attempt those 
activities. The United States Department of the Interior's Fish and 
Wildlife Service is the primary federal agency responsible for the 
conservation and management of migratory bird resources. MBTA permits 
must be issued for the take of listed migratory species, unless a 
general depredation order exists.
    [NOTE: Attachments to Mr. Winegrad's statement have been retained 
in the Committee's official files.]
                                 ______
                                 
    Mr. Gilchrest. Thank you very much, Mr. Winegrad. Very well 
done. And we, as a Congress, will speak with a voice that is 
sensitive to all the living species and try to understand the 
ecology of the region.
    I would like to start with a question that each of you can 
answer. A number of people this morning and this afternoon have 
focused on the Migratory Bird Treaty Act, and what I have been 
trying to do is pin down some--well, I am not trying to pin 
anybody down, but I would like to have a perspective, since it 
has been mentioned here a couple of times, on the original 
Migratory Bird Treaty Act. As Dr. Sparrowe said, provided 
general protection--does not provide general protection for 
individual birds. It was a treaty and a relationship with 
various countries so that the overall migration of a number of 
species would be considered seriously and protected. Should the 
Migratory Bird Treaty Act be specifically statutorily modified 
to list or to make mention of exotic species that it would not 
provide protection for? Mr. Winegrad mentioned 86 species of 
birds. So would it be the recommendation of this panel to, and 
we can start with Mr. Pardoe--would it be your recommendation 
to modify the Act to specifically exclude in a surgical way 
exotic species from protection of the act?
    Mr. Pardoe. Mr. Chairman, our position would be that human-
introduced species should not be covered and protected by the 
act. It is not necessary to list them individually because 
another one might be introduced tomorrow. But if non-native, 
human-introduced species are excluded, then that covers all 
that category. If the birds get here on their own, as cattle 
egrets did, they are protected. They got here naturally, they 
weren't brought in like sparrows or starlings or other 
introduced species.
    Mr. Gilchrest. Dr. Stallman?
    Dr. Stallman. The Humane Society of the U.S. would not 
support the idea of amending or modifying the MBTA in this way. 
I think that, first of all, it is difficult to try to guess 
what the original authors of the MBTA intended, but that aside 
I think it is also difficult in some cases, even if you were to 
try to be as surgical as you could about it, to try to 
distinguish whether an expansion or a movement of a wildlife 
population was affected by humans in any way or not, to what 
extent was it affected, how much human intervention is 
necessary for it to be a human-caused introduction? I think it 
could get into a little bit of stickiness.
    Mr. Gilchrest. Thank you. Dr. Sparrowe?
    Dr. Sparrowe. The situation with something like the mute 
swan appears quite clear, where it is introduced and expands 
and a population grows and it is a problem. I think the comment 
from Mr. Pardoe makes sense, that I think science would be 
concerned that we not exclude coverage for an animal that 
expands its range into North America, but that is a pretty rare 
case compared to what we are talking about here. Most of these 
animals that we are concerned about, the ones mentioned in 
Florida and others, have come from various types of human-
induced introductions, and so I think it is certainly worth 
proceeding with serious consideration of amending the Act to 
deal with introduced exotics.
    Mr. Gilchrest. Thank you. Mr. Winegrad?
    Mr. Winegrad. Mr. Chairman, we would support and suggest 
that the Act be amended to specifically exclude introduced non-
native species, that those words be used. That is for species 
that may expand their range naturally, maybe because of global 
warming, temperature changes, natural expansion, food sources, 
whatever, but introduced, non-native species be explicitly 
spelled out as being excluded from the act. That would simply 
return the Migratory Bird Treaty Act of 1918 to its pre-Hill 
case management techniques. It would just go right back to pre-
Hill. But we would not support trying to list species. The way 
the Act is administered now in the United States is that you 
have families of birds in some of the earlier treaties and then 
you have specific species in the latter treaties. And then the 
Fish and Wildlife Service is tasked under the Act of listing 
the species that are covered, not the reverse, just the species 
that are covered. And what the judge ruled in Hill was the 
Service did not act correctly because the family of swans was 
included in the act, and he believed they were migratory 
because they might move across the Canadian border and back, 
which of course doesn't make them migratory in the true sense. 
And so he believed that they should have been listed under that 
CFR listing. What I am saying is that that Congress needs to do 
is exempt out non-native introduced species, and then the Fish 
and Wildlife Service is free to list. If the species wasn't 
listed, it is not covered.
    Mr. Gilchrest. If we move in that direction, do we need to 
have some framework or definitive definition of exotic versus 
invasive?
    Mr. Winegrad. No, not if you say non-native, introduced. 
That covers it. It has to be introduced and it is non-native, 
it was never here. Ornithologically, people know every species 
that was here from records and accounts. We know our native 
species pretty well. There is not many surprises. I mean there 
is still speculation about some that are thought extinct like 
the ivory-billed woodpecker, but basically we know that non-
native--introduced, non-native species should cover it.
    Mr. Gilchrest. OK.
    Mr. Winegrad. What is confusing, and I can sense the 
confusing from all the discussions back and forth, is that when 
you get into invasives, exotics, introduced, non-native, what 
is the definition, what is covered, what isn't, the tricky 
point is is that the Migratory Bird Treaty Act, even under the 
Hill case, the broadest expansion of Hill, wouldn't cover all 
exotic avian species. Like it might strike you right now as 
strange if I told you that European starlings and house 
sparrows would not be covered even under the Hill case 
expansion of the Migratory Bird Treaty Act, because their 
families aren't listed. But the rock dove, the pigeon, the rock 
pigeon would be covered because they are listed.
    There was mention of Chakars and ring-necked pheasants and 
they are a hunted species. The Feds don't regulate them because 
they are not covered under the Migratory Bird Treaty Act. Their 
families aren't included. Nor are the parrots. So you could 
see, though, that a court or there might be actions in the 
conventions to expand that to cover all exotic birds until we 
would have literally a wildlife zoo outside and our native 
species all would be at risk and some of them would be 
extricated.
    Mr. Gilchrest. Sticking with mute swans as opposed to a 
number of other species of exotics or other species of 
migratory birds that are covered under the Migratory Bird 
Treaty Act, Dr. Stallman, I was curious to how you feel about 
the mute swan in Maryland, a statewide management plan and 
their reduction of the population of mute swan to a population 
which I guess the State of Maryland considers manageable, of 
about 500. Do you have any thoughts or perspective, opinion on 
the management plan that Maryland has?
    Dr. Stallman. I reviewed their management plan and 
submitted comments to the DNR on that. And I know one of our 
comments was, as I said in our testimony, we are concerned that 
there is a real paucity of data linking mute swans to 
degradation of the bay or to native waterfowl in the native 
ecosystems.
    Mr. Gilchrest. I am not sure if I heard you. You said there 
is not enough data pointing to the fact that they have degraded 
SAVs?
    Dr. Stallman. Exactly. The lack of data, the lack of strong 
data. There is a lot of anecdotal evidence, there is a lot of 
stories of aggressiveness between mute swans and other 
waterfowl. There just hasn't been a lot documented on the bay 
or similar watersheds in the eastern United States documenting 
that not only of course the mute swans do eat submerged aquatic 
vegetation but that doesn't mean that their herbivory is 
limiting submerged aquatic vegetation growth. The SAV, the 
submerged aquatic vegetation, like all or almost all plants you 
can think of, evolved with herbivory as a natural pressure. And 
so one shouldn't consider herbivory as something that the plant 
can't necessarily withstand.
    Mr. Gilchrest. Shouldn't consider what?
    Dr. Stallman. Herbivory, the eating of the plants by birds 
like swans, anything that is a herbivore.
    Mr. Gilchrest. Mr. Pardoe, could you comment on Dr. 
Stallman's statement regarding not enough data to show that the 
mute swans are degrading the SAVs and that SAVs evolve with, I 
guess, coevolution. I don't know what came first, the grass or 
the swans or the migratory geese, but that it is natural for 
the grass to be eaten.
    Mr. Pardoe. First of all, there are two separate issues. 
One is the impact of the mute swan upon native bird 
populations, so that is black skimmers, least terns, et cetera. 
That is separate from the SAV issue, and I think that has been 
well documented that they are aggressive and that they do 
displace black skimmers, least terns and black ducks and other 
birds.
    On the SAV issue, it is unquestionable that they eat them, 
it is unquestionable that the mute swan, unlike the native 
swan, is here year-round 12 months a year. So it is consuming 
the grasses 12 months a year. It is also consuming those 
grasses during the spring and summer when the grasses are 
attempting to rejuvenate and grow, so they are at the most 
vulnerable state of their lives. I think it has been documented 
that quantity and if you look at the size of the bird and the 
amount of food that it has to consume simply to live and 
multiply that by 4,000 at this point and magnitude of that as 
to what would happen over the course of time if we had 15,000, 
20,000 of these, the impact upon the SAVs is real.
    Does that mean it is the only impact? No, it is not. I 
mean, obviously, nutrient degradation and sediment and a whole 
lot of other factors are influencing the SAVs. The question is 
do we want to allow still one more substantial degradation to 
the SAVs to exist when we can control it? We are trying to 
control all the others with pollution and sediment, et cetera. 
We should control this one as well.
    Mr. Gilchrest. Thank you. One other question, Dr. Stallman. 
Dr. Sparrowe mentioned a problem that took place five or 6 
years ago. It was over a period of time where there were just 
large number of nesting geese in the Arctic where they were 
destroying their own habitat, and it was the conclusion, it was 
my understanding, of numerous scientists on both sides of the 
border that the population needed to be culled in order to save 
the habitat and then in order to save the species. Could you 
comment on that issue of wildlife management, in particular, 
and then wildlife management, in general?
    Dr. Stallman. With the issue of the light geese, the snow 
geese and ross geese supposedly destroying their Arctic 
habitat, and I know that in that case I wasn't at the HSUS when 
that first came up but I was able to look into that issue more 
recently, and our argument and my argument as a scientist is 
that at some point the geese are going to--the population is 
going to increase and the population is most likely going to 
crash. This is a natural population fluctuation, this happens a 
lot, it may not be nice to see. At some point, the geese have 
density-dependent factors kick in, the geese don't get enough 
to eat or they aren't able to reproduce as much, they may not 
look as healthy for a time, but then the population crashes by 
natural factors. This type of large goose the main non-human, I 
would say, control on their life or reproduction happens with 
the offspring not surviving to adulthood, with reproduction not 
being possible due to a lack of food or with offspring being 
eaten by predators or eggs being eaten by predators. The adults 
themselves are not generally affected very much by predation. 
Our argument with the snow goose issue was that if you let the 
population fluctuate naturally, it will eventually crash and 
the Fish and Wildlife Service actually said as much in their 
most recent--at least in their most recent documents that I 
read, and they seem to be expressing some concern that if that 
happened, it would reduce hunting opportunities for snow geese. 
I don't know what else I can say about that.
    I think, again, the Arctic vegetation you can put up 
exclosures to try to keep the geese out and show--which is what 
they did with the Arctic vegetation and the snow geese. They 
put up exclosures to show, look, without goose herbivory this 
is what the Arctic vegetation looks like, and here is what it 
looks like with goose herbivory and look at the difference. 
Well, they are excluding a natural process. They are excluding 
herbivory which has always been a part of that ecosystem, and 
what they are seeing is certainly a difference. It is taller 
vegetation, it is more vegetation, but is that natural? Again, 
it comes down to how you define natural.
    Mr. Gilchrest. That is a $64 billion question, maybe $64 
trillion question, how do you define natural? And I guess we 
could have defined, to some extent, natural pre-European colony 
of North America but with human activity not running in cycles 
but just one big, steady, long thud, the environment is now 
reacting to that.
    But I just wanted to ask Dr. Sparrowe if you could comment 
on Dr. Stallman's statement about if we just let those snow 
geese, those nesting geese in Canada, go through the natural 
cycle, the population would have crashed, there would have been 
a lot more space for other nesting geese in years to come and 
the cycle would have started over again.
    Dr. Sparrowe. Well, I, of course, come from a good deal of 
experience as a waterfowl manager, being concerned about 
heading off major fluctuations in population levels and so on. 
This is not a natural situation confined strictly to the 
Arctic. Some of the reasons for increased survival of these 
geese include agricultural changes in the United States on 
their wintering grounds where they are able to feed more 
securely and head back North each year in better condition and 
therefore breed more successfully. So this was looked upon as a 
major problem with the focus in the end on what the majority of 
the stakeholders felt was a serious problem already in clear 
evidence on these aggregation areas where geese migrate. So we 
made a choice, which is what I suggested earlier in my 
testimony was a growing problem for America, and the choice was 
to do something before we watched this all go down and before 
we watched the habitat be so degraded that it wouldn't support 
the goose populations. And that seems to me to be what you have 
with the mute swan at this point. Do you accept pretty strong 
but not definitive perhaps evidence of environmental effects 
and other things and look at the exponential growth of the 
population or do we wait and watch that until it gets so great 
that we then don't have very many options for what we can do? 
And I think you will find that wildlife managers would advocate 
that to the extent that we can work with the public and get 
agreement, that we ought to take those kind of actions somewhat 
preemptively when there seems to be some reasonable evidence 
that we should.
    Mr. Gilchrest. Thank you. Mr. Pardoe?
    Mr. Pardoe. Brief comment because the issue of the Central 
Flyway snow geese was the first issue that I voted on when I 
joined the National Audubon Board back in 1997. But the Board 
of National Audubon Society strongly supported reducing the 
population of the Central Flyway snow geese, but it was 
precisely because it was not a natural situation, it was, as 
Dr. Sparrowe had indicated, the result of agricultural 
processes and changes in the wintering grounds, particularly in 
rice fields, so that more of the snow geese were surviving the 
winters and they were stronger and healthier and more were 
returning to the breeding grounds so the population was 
exploding. So it had to be controlled as a result of that.
     Mr. Gilchrest. Dr. Stallman, could you give us your 
definition of exotic, your definition of invasive, if there is 
such a thing, and in cases where there is no question that 
introduced species, exotic species have become invasive and 
they are having a detrimental impact on the surrounding 
environment, for example, nutria in the mideastern shore, do 
you have a recommendation for dealing or managing species that 
do have a degradating effect?
    Dr. Stallman. I could attempt to define exotic or non-
native but, as I implied before, I think that is a tricky 
definition to get at. Essentially, you would have come down to 
some sort of arbitrary designation, was it here pre-European 
settlement, is there evidence the species was here before any 
human settlement? You might try to find a definition like that, 
and I am not sure which definition I personally like.
    Invasive, I think that the Humane Society of the United 
States has no problem defining the word, invasive, as a 
presumably non-native species that is unquestionably causing 
damage to native species. The question, as you are getting at, 
is what do you do if you had such evidence? First, we would 
argue that in a lot of cases like the mute swan people rush to 
a management decision before there is evidence. And we 
understand that people have very strong concern for native 
ecosystems, we share that concern, and a lot of times that 
concern overrides what would otherwise be legitimate attempts 
to get more solid data determining not just are the swans 
there, not just are they eating what they eat, but is that 
limiting the growth of what they are eating, is that limiting 
the growth of crabs or other waterfowl?
    If we were convinced that they were having such an impact, 
then it would depend--as far as what the organizational view is 
on this, it would depend on the situation. This has always been 
a tricky subject for us, we would have to take it on a case-by-
case basis. If it is a situation where you have a discrete 
area, an island where there are native species that are found 
there and nowhere else and you have an opportunity--because it 
is separated from the mainland, you have an opportunity to 
eliminate a non-native species that is clearly causing 
problems, then that may be unavoidable. But if you have a 
situation--
    Mr. Gilchrest. If you find a situation where there is an 
invasive species that is having a dramatic detrimental effect 
on the local flora and fauna, how would your organization 
propose to manage that species or to eliminate that species?
    Dr. Stallman. Well, we would ask that humaneness of any 
population control or any population management be considered 
first and foremost. With the mute swan in particular, there are 
ways to--if it is deemed necessary, if concern must override 
the obtaining of more solid data, then there are ways you can 
do that without necessarily killing adult birds, ways that are 
considered more acceptable. It is always a question is it 
really more humane, is it really helping the birds' welfare, 
but things like the egg addling or egg oiling there is research 
on other population control methods underway for both Canada 
geese, for example, and for mute swans and other birds. We 
would say those avenues should be explored and exhausted first. 
In other cases, sometimes, like with the Chesapeake Bay, you 
may have very sensitive areas where it is just not going to 
work to have mute swans there. You can exclude them with 
fencing. And I know that there--
    Mr. Gilchrest. Is there any way to identify those areas of 
the Chesapeake Bay where it is not a good idea to have mute 
swans?
    Dr. Stallman. I wouldn't be the one to ask. I am not sure 
how that would be done, but if such areas could be identified 
and if fencing could be both put up and maintained, I know the 
maintenance is a problem, it can be expensive, but that would 
be an additional thing that could be done in addition to the 
reproductive control that we would find acceptable.
    Mr. Gilchrest. Does the Humane Society ever take on that 
type of project, to look at certain sensitive shallow tidal 
ponds or tidal basins, certain ecosystems throughout the bay 
where there is--there has been in the past a thriving tundra 
swan population that migrates back to Canada and Alaska and 
then is replaced by a mute swan population where it not only is 
the habitat taken away from the tundra swans but its effect on 
the SAVs has a dramatic effect on the spawning area let us say 
for rock fish where then triggers areas that the osprey or 
eagles are left with less fish?
    Dr. Stallman. Well, I think in an area like this where it 
is not separated from the larger mainland, it is not a discrete 
area, it would--it might be difficult to exclude birds--I am 
not sure what size area you are talking about.
    Mr. Gilchrest. Well, let us say you take almost any tidal 
basin or river, whether it is the Nanacote or the Chester or 
the Sassafras or the Choptank, you will have just, for lack of 
a better term, these magnificent rivulets. All up and down 
those tidal basins you have little tidal ponds, you have small 
little estuaries that go off into a farm or an upland or things 
like that. And in all of these they are pervasive with a number 
of species, and this is where a lot of the fish will spawn, 
this is where SAVs generally are very good because you have 
very little boat traffic in the shallower areas, but then mute 
swans comes in and push out other species. I don't think as a 
layman it would be too difficult as a pilot project to identify 
certain areas around bay where mute swans would definitively, 
clearly, have a degradating effect on that ecosystem. And if 
that was uncovered, would you choose as an organization to go 
along with the consensus that these areas the mute swans should 
be managed or egg addling would be appropriate or would you say 
that is the natural cycle, that is the natural process, another 
species has moved in and the ecosystem is going to change in 
that natural order?
    Dr. Stallman. Well, I think it is difficult, as we have 
been talking about, to decide what is natural, and it becomes 
what you want in your ecosystem. What do you value? Do you 
value a species from a particular time period? Pre-European 
settlement seems to be usual choice. Whether that is right or 
not, I don't know. I mean I would question that, but once you 
have decided on that I guess we would say any management of the 
population should first and foremost be attempted using 
reproductive control rather than killing adult animals which is 
arguably less humane. And if fencing can be used to exclude 
them from small areas, if that is feasible, if organizations 
can help get volunteers to help maintain those fences, I think 
that is an option to consider too.
    Mr. Gilchrest. I think you raise an excellent point as to 
whether or not we are in a position to make decisions about 
what we want the ecosystem to look like. But it is a question 
that I think has already been answered, not by any one single 
person in this room but by the mere fact that human population 
now exceeds six billion people. So if we don't manage the 
landscape, if we don't find a way to use only those resources 
that we need and not diminish future generations, the resources 
that they are going to need, then we have to move into the 
process of understanding how best to manage this ecological 
system so that it is sustained. And in this small situation 
with migratory birds, the Migratory Bird Treaty Act, and in 
much of the conversation today dealing with mute swans, I think 
it is a very difficult but most important struggle for we, as 
policymakers, to make a decision, not a definitive decision, 
not a decision that is going to be around for the next 1,000 
years but a decision that can move us to a better understanding 
of how the process, that ecological system, will work to 
benefit us and certainly future generations.
    So I can appreciate your sensitivities to these difficult 
issues, and your questions make us a little bit more aware of 
not only the bigger picture but the respect we need for all 
life, not to dismiss it categorically, which I don't think any 
of your other colleagues on the panel have done in relationship 
to the mute swan issue.
    I want to ask you this next question. Your feeling on the 
management plan for nutria at Blackwater and the surrounding 
area. Do you have a perspective on that? Have we as legislators 
done a fairly good job in understanding that nutria is, from 
our perspective, invasive, it is destroying the habitat down 
there for a whole range of other species and we have decided to 
move in and not only reduce the number of nutria but actually 
if it is possible eliminate that species that was introduced 
here in the 1950s?
    Dr. Stallman. Well, it has been a while since I looked into 
the nutria issue. From what I remember, I did serve on an 
invasive species--I did go to a workshop and we focused on 
nutria in the workshop. I think we commented on one 
environmental assessment by Maryland DNR or some management 
plan. From what I remember, I believe there was more evidence 
of damage by the nutria, but that is on the side of science. I 
mean science doesn't tell us how we should manage wildlife, it 
only tells us what possible--what might happen if you manage 
wildlife in this way versus in this way, what will happen to 
the wildlife population, what will happen to anything that they 
happen to be damaging, any human interest or ecological 
interest they might be damaging. Science can tell us that, but 
we still have to then make a decision, and that is where values 
come in and ethics come in.
    And with the nutria, I would say we certainly would have 
preferred it if other options had been explored, such as, 
again, not to keep beating a dead horse, so to speak, but the 
reproductive control option is something that I know some 
researchers were interested in exploring. They didn't have 
funding, and it just never happened, to my knowledge. That 
definitely would have been something we would have preferred in 
that case.
    Mr. Gilchrest. Well, thank you very much. That was an 
unfair question because you came here to testify on bird 
species, not those beautiful little critters called nutria. 
Does anyone else--would anyone else on the panel, any of the 
other witnesses, wish to address another issue that we haven't 
raised, make a comment or another recommendation? Specifically, 
what would you like to see as far as the next steps are 
concerned?
    Mr. Winegrad. Mr. Chairman, if I--
    Mr. Gilchrest. Mr. Winegrad.
    Mr. Winegrad. --could just quickly, I mean the next step in 
thinking this through, the Migratory Bird Treaty Act is the 
main law, more than any other law, including the Endangered 
Species Act, that has prevented the wholesale slaughter of 
birds in the United States and in the signatory countries. It 
was enacted originally the convention with Canada and Great 
Britain for Canada. It was enacted in 1960 in a convention 
because of this feather trade and the hunting too, you know, 
packing them in barrels and shipping birds off. And if it 
weren't for that act, we would be in deeper trouble in terms of 
our avian species. So it isn't likely that the American Bird 
Conservancy request you to amend the Migratory Bird Treaty Act, 
but looking at all the parameters for the management of non-
native, introduced avian species, it is the way we see that the 
Congress needs to go, and it is the way we see the management 
to go just to restore to pre-Hill conditions.
    But I wanted to point out two things, to emphasize two 
points, if I may. One is that there was discussion about egg 
addling on another panel and we haven't commented on that, so 
if I may, the Act itself, the Migratory Bird Treaty Act, 
prohibits the take by any means or manner or the pursuit or 
hunting or take, capture or killing of any migratory bird. 
Under regulations of the Fish and Wildlife Service that 
includes not only the killing, wounding, shooting, hunting, 
capture or collection of any migratory bird but it includes any 
part, nest or egg thereof. So in order for the Maryland 
Department of Natural Resources to addle those eggs, if the 
bird is protected by the Migratory Bird Treaty Act, which the 
judge ruled it was, they still have to get permits, and to get 
a permit to take the eggs, just like you need it to do to kill 
the bird once that judge's opinion was issued, you would still 
need to do an environmental assessment, or an EIS, that would 
pass the court's mustard under that decision. The judge said he 
is giving the temporary restraining order because he believed 
it would be more injurious to the birds than allowing the 
department to go forward and pointed out the inadequacies of 
the EA. And so the reason they have held it up is because the 
judge's ruling really puts them in limbo in the sense that they 
would have to go back to ground zero and either do a new EA or 
do a full-blown EIS, which would probably cost half a million 
or more and then also would take a couple years. So that is on 
the egg addling.
    Secondarily to that is that egg addling does not and has 
not and cannot work to reduce or even stabilize mute swan 
populations. This is large aggressive bird with once it is 
grown there are very few, if any, predators, and the bird lives 
16, 20 years, so it can have many, many, many young. And egg 
addling that has been tried, and this is documented in the 
literature, it is in the Mute Swan Task Force, it is in the 
report that I hope the Committee has of the mute swans and the 
Chesapeake Bay habitat from the Wild File Trust Symposium, I 
moderated that June 7, 2001. And in these papers I was struck, 
as the moderator, they had a gentleman from Rhode Island who is 
with the Rhode Island Department of Environmental Management 
who reported on 22 years of intensive egg addling because of 
public outrage over killing mute swans there. They were left 
with egg addling. And it is a small State, as you know, 
Naragansett Bay. They did intensive aerial surveys, the big 
white birds. They went in and had an intensive egg addling 
program, fairly costly for a small State, and the results of 
that were that the average population growth of the mute swan 
was reduced in Rhode Island to 5.6 percent a year during these 
period of these 22 years. And the population increased five-
fold, and the management objective was 300 mute swan set in the 
1960s. They are now in excess of 1,600, maybe 1,700 birds now. 
It was slow, the otherwise exponential population growth, but 
it doesn't ever reduce. You have to go to lethal control.
    A second study was done in the Great Lakes by Scott Petri, 
he was mentioned in earlier testimony, and his study shows that 
egg addling done at Lake Eerie and Lake Ontario where they have 
a growing population, they oil and addle the eggs, he published 
a paper in February 2002 that addling eggs does not work to 
reduce or stabilize populations, and he found a population 
growth rate up there that was approaching over 10 percent or 
more, even with the egg addling program. So it is a feel good 
solution, it is something that the more moderates on the side 
of the ones that would sue can agree to, but it will not 
reduce, it will not stabilize mute swan populations, and it 
would be quite costly as compared to lethal control.
    My final point is that less than a year--
    Mr. Gilchrest. So, Mr. Winegrad, you don't count yourself a 
moderate?
    Mr. Winegrad. No. I am saying the moderate in the really 
animal rights group. I consider myself pretty moderate in terms 
of conservation, conservation meaning it is conserve. And 
conservative is in the word, ``conservation.''
    Mr. Gilchrest. I was just kind of--
    Mr. Winegrad. I know.
    Mr. Gilchrest. I am considered a radical moderate in 
Washington.
    Mr. Winegrad. You know, they say radical times call for 
radical actions.
    Mr. Gilchrest. OK. Very good.
    Mr. Winegrad. But my final thing is on I don't want this to 
sound like we are only here to amend the MBTA because of the 
mute swan, that isn't really the case. There are 85 other 
species besides mute swans, which with my limited testimony I 
did submit some of the species names. But one of the ones I 
wanted to use as an example is an exotic, an invasive, a non-
native introduced species is the purple swamphen. And you are 
going to say what is a purple swamphen, and that was my 
reaction a while ago up until I heard about these birds, and 
this species was a newly introduced species, and it was brought 
into the Miami MetroZoo and it was in an open part of the park 
on these ponds, and during Hurricane Andrew in August 1992 
eight swamphens escaped out into the Florida wilds. This bird 
has its origin, there are different subspecies that are in the 
South Pacific, Australia, New Zealand and the Islands, and 
there are ones that are in Eurasia and Turkey, and they migrate 
to Africa, but it is not ever been in America. And it is a very 
large--if you think of a big--it is in the rail gallulul 
family. If you think of a very large morehen, you know, purple 
morehen--
    Mr. Gilchrest. So it is now in the wilds in the Everglades?
    Mr. Winegrad. It is 50 percent bigger than a normal 
gallulul and it is now around the Everglades and where the 
Everglades were. When it escaped out there it was in one 
county. It started breeding up. Birders were flocking to get it 
on their list. It really shouldn't count because it got out of 
the zoo. It is now up to about 200 birds. They are breeding, 
and the bird is known from other parts of the world to be very 
aggressive. It actually has been seen in people's backyards on 
a pond, a lake, kicking other birds away from food sources that 
they put out. The bird also eats grasses and it is going into 
the Everglades system, in and around the Everglades. It is now 
in two counties. So if you applied the MBTA Hill decision to 
this species because rails and gallululs are in a family 
covered by the conventions, you wouldn't be able to touch this 
bird. Eventually, this could become another mute swan for 
Florida and it could expand its range to other States unless 
something is done immediately to manage it now.
    Mr. Gilchrest. Well, we will move forward to take all these 
things in consideration and try to act in a very judicious 
manner. And we appreciate all of your testimonies here this 
morning. Mr. Pardoe, Dr. Stallman, Dr. Sparrowe, and Mr. 
Winegrad, thank you very much, it has been very helpful. We 
have no further witnesses, we will be around for a few more 
minutes for anyone that wants to have a question or a comment. 
The hearing part of this session is now adjourned.
    [Whereupon, at 1:31 p.m., the Subcommittee was adjourned.]