Roughly one-third of the nation's American oystercatcher population flocks to South Carolina beaches each winter, their long bright orange beaks and equally orange eyes a striking sight as they scamper across the sand.

If not for the Migratory Bird Treaty Act, these shy and sturdy shorebirds might not be the seasonal fixture they have become.

American oystercatchers were hunted to near-extinction in the 19th century for their black-and-white plumage and their speckled eggs, but those populations recovered well after the passage of the Migratory Bird Treaty Act in 1918.

Considered one of the nation's oldest conservation laws, the Migratory Bird Treaty Act currently protects more than 2,000 native bird species nationwide, including some 417 species in South Carolina, according to the state Department of National Resources. 

That protection extends to the red knot, a tiny flier that makes its way from Argentina to Beaufort to sample horseshoe crabs in the late summer and early fall. It prevents the killing of the red-tailed hawk and owls without a federal permit. And the law protects ospreys who build their nests on utility poles.

But in what was supposed to be a year spent celebrating the centennial of the conservation agreement, 2018 is proving to be a year where the law is fighting for its own survival amidst threats from the Trump administration and Congress.

"To say the law is needed is a major understatement," said Jim Elliott, the director of the Awendaw-based Center for Birds of Prey.

"This is a firewall that has been in place for all the right reasons," he added. "Birds are vulnerable by their very nature and, in our view, the risk to birds has always increased and not decreased."

The challenges

In November, U.S. Rep. Liz Cheney, R-Wyoming, introduced an amendment to change the law so that energy operators would no longer be liable for incidental or accidental deaths of protected birds. 

So, under the proposed revision to the law, if birds land in oil fields that they mistake for water or fly through the blades of a wind turbine along their migratory path, the companies responsible for those oil fields and wind turbines would not be responsible for the unintended bird deaths.

Cheney has criticized the federal law for being too vague and, as a result, says it is hampering energy operators in her home state.

"Our operators take multiple precautions to ensure migratory birds, as well as other wildlife, are not injured during operations, but if these precautions fail, the current language could impose criminal liability for the taking of the bird even though it’s accidental," Cheney said in a press release.

The amendment was tacked onto a House energy bill related to promoting expanded exploration, development and production of oil, gas and wind resources both onshore and offshore. The bill passed the House Natural Resources Committee with Cheney's provision attached. It can now come up for a vote in the House though no timetable on a showdown has been announced.

Both moves have angered bird conservation groups. 

"This would be the biggest rollback to the Migratory Bird Treaty Act in its history," said Erik Schneider, a policy analyst for the National Audubon Society.

Pushing back

Last month, more than 500 conservation groups — eight from South Carolina — signed onto a letter urging members of Congress to keep the act in its current form. 

The Audubon Society has coined Cheney's provision the "Bird Killer Amendment," which is the same moniker the group gave to a similar resolution put forth in 2015 by South Carolina Rep. Jeff Duncan, R-Laurens.

Wind energy experts in the Southeast, though, say the federal law as it is currently written is is not really a problem. Adam Forrer, manager of the Atlantic Region for the Southeastern Wind Coalition, said the conservation law has been more positive than cumbersome. 

"Any considerations for the MBTA are not going to be a make or break for the project until you have things like cost under control there, or until you have a buyer," said Adam Forrer, manager of the Atlantic Region for the Southeastern Wind Coalition. 

"What developers want most when building a project, especially in the Southeast, is regulatory certainty. They want to know that the rules in place when they start building are going to be the rules they finish with when building a multi-million dollar project," he added.

The group, based in Raleigh, has not taken a formal policy stance on Cheney's amendment but said it has become routine for developers, energy utilities and conservationists to work together to reduce environmental impacts, including to birds.

What is the new incentive?

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Elliott, the director of Birds of Prey, said has worked with utility companies like Santee Cooper, SCANA, Berkeley Electric and some of the state's co-ops to help them mitigate their number of bird deaths.

Sometimes, he said, the solutions can be as simple as putting a net over an oil pit or flagging a transmission line. 

Elliott described the interactions with utilities thus far as positive, but questions whether these interactions will continue if there is no legal repercussion for companies.

In the aftermath of the Deepwater Horizon oil spill of 2010, BP pleaded guilty to 14 criminal counts, including one misdemeanor count of violating the Migratory Bird Treaty Act. As part of the settlement, BP shelled out $100 million to fund projects focused on wetlands restoration and conservation.

"What's going to be the incentive for best conservation practices to protect birds? What is the new incentive going to be if it's not legal exposure?" Elliott asked. "I just wonder when it comes down to time, profit, and priority where those conservation practices are going to fall in that corporate hierarchy."

A spokesman for Duncan, the South Carolina Republican who introduced similar legislation to modify the MBTA in 2015, said the congressman remains a strong supporter of the MBTA but still wants to see intent clarified in the law so that motorists, homeowners and corporations are not put "in the same boat as poachers and flagrant offenders."

Duncan is also one of South Carolina's outspoken advocates of offshore drilling exploration. 

Some members of South Carolina's congressional delegation declined to comment on how they would vote on the bill.

For U.S. Reps. Mark Sanford, R-Charleston; James Clyburn, D-Columbia; and Tom Rice, R-Myrtle Beach, the bill's stance on offshore drilling — much less its revision to the Migratory Bird Treaty Act —  was enough for them to tell The Post and Courier they planned to vote against it.

Bird advocates say the issue comes down to enacting protections, or possibly looking the other way.

"Where is that line when it becomes a moral question and not a legal one?" Elliott said. "If we judge on a moral rule, I worry about where we are headed."

Reach Caitlin Byrd at 843-937-5590 and follow her on Twitter @MaryCaitlinByrd.

Political Reporter

Caitlin Byrd is a political reporter at The Post and Courier and author of the Palmetto Politics newsletter. Before moving to Charleston in 2016, her byline appeared in the Asheville Citizen-Times. To date, Byrd has won 17 awards for her work.