Mute Swans in Maryland: A Statewide Management Plan
Maryland Department of Natural Resources
Wildlife and Heritage Service
April 14, 2003

LEGAL DEFINITION AND PUBLIC POLICIES

Legal Status

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. The USFWS based its exclusion of the mute swan from the Migratory Bird Treaty Act (MBTA) on its argument that the mute swan was exotic to the United States and non-migratory.  However, on December 28, 2001, the U.S. District Court of Appeals for the District of Columbia, ruling in the case of Hill v. Norton, found that this was not legally supportable and that the mute swan should not be excluded from the List of Migratory Birds (Title 50 Code of Federal Regulations Part 10.13).

In Maryland, mute swans are included in the statutory definition of Wetland Game Birds (Natural Resources Article [NR], Section 10-101) (Appendix B). This law does not list the specific names of native species of waterfowl that winter in Maryland, but only identifies ducks, mergansers, brant, geese, and swans as wetland game birds. The state law was promulgated prior to the accidental introduction of mute swans in Maryland. The 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).

With the inclusion of the mute swan in the MBTA and federal List of Migratory Birds, a federal permit is now required for all activities directly involving the mute swan, their eggs and young. These activities include take, possession, transportation, sale, purchase, barter, importation, exportation, banding, and marking mute swans. The MBTA does not necessarily afford strict protection or preservation to any species. Rather, appropriate management of migratory bird populations is provided for in the MBTA. Thus, mute swan management activities conducted in Maryland can be implemented, but are now subject to federal permit requirements. Currently, there is no open hunting season for mute swans in the U.S. Thus, a hunting season for mute swans in Maryland is not a management option, until the U.S. Fish and Wildlife Service completes an Environmental Impact Statement and proposes regulations that offer state wildlife agencies mute swan hunting season frameworks.

Public Policies Pertaining to Invasive Species and Mute Swans

Several federal, regional and state public policies address the concerns associated with invasive species and specifically are directed at the management of mute swans (Appendix C). An invasive species is defined 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 Migratory Bird Treaty Act (U.S. Code [USC] 703-712, Ch. 128; July 13, 1918; 40 stat. 755) authorizes the U.S. Department of Interior, represented by the USFWS, to regulate the take of migratory game birds that appear in the List of Migratory Birds (50 CFR 10.13). The mute swan is now included on this list. In February 2002, the USFWS distributed a leaflet to USFWS regional offices, state wildlife agencies and private entities describing the management implications of the recent court ruling and activities involving mute swans that are now regulated by the USFWS.
  

• The Chesapeake 2000 Agreement is a cooperative agreement signed by the Governor’s of Maryland, Pennsylvania, and Virginia, Mayor of the District of Columbia, Chesapeake Bay Commission, and the Environmental Protection Agency representing the federal government. The Agreement includes goals that address invasive species and SAV restoration. Specifically, the Agreement directs the jurisdictions to identify non-native, invasive species, which are causing or have the potential to cause significant negative impacts to the Bay’s aquatic ecosystem. Further, the Agreement requires the development and implementation of management plans for those species deemed problematic to the restoration and integrity of the Bay ecosystem. In December 2001, the mute swan was identified as one of the priority species requiring regional management planning and population control.
  

• Executive Order 13112 enacted February 13, 1999, by the President of the United States, directs all federal government agencies to prevent the introduction of invasive species and provide for their control and to minimize the economic, ecological, and human health impacts that invasive species cause. The order further directs federal agencies to refrain from actions likely to increase invasive species problems.
  

• The National Invasive Species Act (NISA) (1996) (16 U.S.C. § 4701. et seq.) established an Aquatic Nuisance Species Task Force (ANSTF) to assess whether aquatic nuisance species threaten the ecological characteristics and economic uses of U.S. waters. The ANSTF is also directed to evaluate approaches for reducing risk of adverse consequences associated with unintentional introduction of aquatic species. The NISA also authorized funding for state and regional management of aquatic non-indigenous species plans, research on aquatic nuisance species prevention and control in major aquatic systems, including the Chesapeake Bay.
  

• On August 1, 1997, over growing concern for the impacts mute swans were having on habitats important to migratory birds, particularly waterfowl, the Atlantic Flyway Council (AFC) adopted a policy directing its member government agencies to manage and control mute swans. The AFC is an administrative body comprised of 23 state and provincial wildlife agencies, including Maryland, in the easternmost flyway. Presently, the AFC is developing a flyway mute swan management plan.
  

• On March 24, 1996, the USFWS enacted a policy directing managers to control mute swans on federal lands, including National Wildlife Refuges, to protect the habitats from degradation and damage by mute swans.
  

• In 2001, Maryland Natural Resources Article, Section 10-211 was enacted, requiring the DNR to establish a program to control the population of mute swans and authorizing the DNR to include the managed harvest of adult mute swans in this program.
  

• In 2002, the Maryland General Assembly adopted Senate Joint Resolution 15 urging the USFWS to act with expedience to craft and conduct appropriate regulatory processes under the MBTA which would allow Maryland to establish a method of controlling the mute swan population and to mitigate the mute swan population's impact permanently and statewide.