# Presentation: 289087

## Migratory Bird Treaty Act

## MBTAWhat You Need to Know

** ****Purpose **
** ****The Law**
** ****Service Policy**
**How we impact**
**   ****MBs**
** ****Executive Order**
**     ****13186**
** ****Court Cases**
** ****NEPA **

**Notes:**
I am going to go over what you need to know and do to both get your projects built and protect yourself

## MBTA - Purpose

**Protect **
**Migratory birds, regulate take of any bird, body part, nest, or egg**

## MBTA – The Law

-  **Strict Liability Act**
** ****Prohibits unauthorized**
**   ****Take, defined as: **
**   ****- Pursue, hunt  shoot ,**
**     ****wound, kill, trap, **
**     ****capture, collect or**
**     ****attempts thereto**
**   ****- Intentional  OR**
**     ****Unintentional**

**Notes:**
Violating MBTA can be a felony if done knowingly / Take to do or attempt to /

## The Law

- “except as permitted by regulations ... unlawful at any time, by any means, or in any manner to pursue, hunt, take, capture, kill ... possess, offer for sale, sell ... purchase ... ship, export, import ... transport or cause to be transported ... any migratory bird, any part, nest, or eggs of any such bird ... (The Act) prohibits the taking, killing, possession, transportation, and importation of migratory birds, their eggs, parts, and nests, except when specifically authorized by the Department of the Interior.” The word “take” is defined as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to pursue, hunt, shoot, wound, kill, trap, capture, or collect.”

## The Law

- A 1972 amendment ...included bald eagles and other birds of prey ... ...MBTA provides criminal penalties for ... any means or in any manner, pursue, hunt, take, capture, kill, attempt to take, capture, or kill, possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver for shipment, ship, export, import, cause to be shipped, exported, or imported, deliver for transportation, transport or cause to be transported, carry or cause to be carried, or receive for shipment, transportation, carriage, or export, ***any migratory bird***.

## The Law

- The MBTA offers protection to 836 species of migratory birds, including waterfowl, shorebirds, seabirds, wading birds, raptors, and passerines (songbirds).
- The MBTA protects all birds occurring in the U.S. in the wild except for house (English) sparrows, European starlings, rock doves (pigeons), any recently listed unprotected species in the Federal Register and non-migratory upland game birds. *(Not really true!)*

## MBTA – Court Decisions

-  **Glickman Decision – brought in Federal **
**    ****agencies under DC District decision**
** ****Seattle Audubon v. Evans (District 9) – ****	****take of habitat not covered**

**Notes:**
 There have been  several court decision but these two really affects our projects:  DC circuit court found that federal agencies and state offers do need a permit / MBTA DOES NOT APPLY TO HABITAT- habitat modification that adversely impacts covered birds later in time is not covered

## Objectives of Service Policy

- _[www.fws.gov/policy/720fw2.html](http://www.fws.gov/policy/720fw2.html)_
- All Service employees should:
- Implement their mission related activities in a way that furthers the conservation of migratory birds, minimizes and avoids ...adverse effects of ...take, _***with the goal of eliminating take.***__***  ***__***(You awake now?***_

## www.fws.gov (Migratory Birds)

**Final List of Bird Species to Which the MBTA Does Not Apply.**** **_**[Federal Register Notice](http://www.fws.gov/migratorybirds/issues/nonnative/Final NonNative Species List.pdf)**_, _[Press Release](http://news.fws.gov/NewsReleases/showNews.cfm?newsId=A76B7418-1143-3066-40D6E7B7699AAB48)_ and _[additional information](http://www.fws.gov/migratorybirds/issues/nonnative/MBTADoesNotApplyDocs.htm)_ including Q&A's.
-  **AVIAN PROTECTION PLAN (APP) GUIDELINES **
**The Edison Electric Institute’s Avian Power Line Interaction Committee (APLIC) **
***and ***
**U.S. Fish and Wildlife Service (USFWS)**

## Birds of Management Concern

- 139 Focal species to receive heightened attention over the short term (next 10 years).
- Have at least one of the following five characteristics:
- 1) high conservation need,
- 2) representative of a broader group of species with similar conservation needs, ***(can you say “habitat”?)***
- 3) high level of current Program effort
- 4) potential to stimulate partnerships ***(the floggings will continue ‘till morale improves),*** and
- 5) high likelihood that factors affecting status can realistically be addressed

## MBTA – The Law

**Does not apply to habitat or empty nests not possessed (****The Omen****!)**
**No dead birds, no broken eggs, no take**
**So you can clear and grub, paint, clean, sand blast, use explosives, etc. in the absence of active nesting (as long as you don’t kill any adults)**
**You can harass to keep them away**

## MBTA – Executive Order

-   Applies to Federal Agencies
-    - with takings or
-    measureable negative
-    effects
-   Not grant in aid
-    programs – (ie, FHWA is
-    exempt  from the MOU)
-   MOUs with FWS
-  DOD and DOE so far

**Notes:**
State DOTs must still abide by the ACT

## Migratory Birds and  NEPA

**If Migratory Birds are **
***Likely to be ***
***impacted*****  by our Projects  – This should**** ****be disclosed in project NEPA documents**

## How are birds impacted under MBTA

***Only*** Direct take applicable to birds, including nestlings and eggs, occupied nests
- Clearing and Grubbing – seasonal restrictions
- Grading – Seasonal restrictions
- Bridge cleaning and demolition – preventive measures/nesting or seasonal restrictions
- Bird strikes on towers and bridges – design
- Bird strikes by highway users – design (barriers?)/location

## Questions & Discussion

## Topics for Discussion?

**Seasonal restrictions – what is reasonable for DOTs? (What can we live with?)**
**30 days?****	****	****90 days?**
**60 days?****	****	****???? Days?**
**Bridge exclusion devices? Successes?**
**Permits for “incidental” (but foreseeable) take?? (does that make it deliberate?)  Any successes? **
**NEPA Compliance Experiences**

## Discussion	

**FHWA Policy**
**Conservation Measures**
**Avoidance of take**
**Design**
**Construction**
**Operation and Maintenance**
**Compensatory mitigation**
**Habitat Preservation**
**Habitat Restoraiton**
**Eco-logical Opportunities**