DRAFT 

Memorandum of Understanding 

Between the U.S. Environmental Protection Agency Office of Pesticide Programs

and the Department of the Interior U.S. Fish and Wildlife Service

Regarding Implementation of Executive Order 13186,

“Responsibilities of Federal Agencies to Protect Migratory Birds”

This Memorandum of Understanding is entered into, by, and between the Office of Pesticide 

Programs at the U.S. Environmental Protection Agency and the U.S. Fish and Wildlife Service,

herein collectively referred to as the Parties.

A. Purpose

This Memorandum of Understanding (MOU) is entered into pursuant to Executive Order 13186,

“Responsibilities of Federal Agencies to Protect Migratory Birds” (66 FR 3853, January 17, 

2001). The purpose of this MOU is to promote the conservation of migratory bird populations 

through enhanced collaboration between the Environmental Protection Agency’s (EPA) Office 

of Pesticide Programs (OPP) and the U.S. Fish and Wildlife Service (FWS) regarding actions 

directly carried out by OPP.

This MOU does not alter or waive any responsibilities of EPA or FWS, as applicable, under the 

Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (Eagle Act), the 

Endangered Species Act (ESA), or any other statute, nor does it authorize the take of migratory 

birds. EPA actions delegated to or assumed by States, Territories, Commonwealths, or Tribes, or 

carried out by States, Territories, Commonwealths, or Tribes with EPA assistance are not subject 

to this MOU. The Parties resolve to implement responsibilities and activities described herein to

the extent permitted by law, subject to the availability of appropriations, within Administration

budgetary limits, and in harmony with the Parties’ missions. In carrying out the activities 

described in this MOU, OPP does not intend or expect that OPP’s ability to meet its statutory 

deadlines for completing registration and re-evaluation decisions will be impacted.

B. Authority

The Parties’ responsibilities under this MOU are authorized by or consistent with the purpose of 

provisions of the following laws and other authorities available to the Parties:

• Bald and Golden Eagle Protection Act of 1940, as amended (16 U.S.C. §§ 668-668d);

• Endangered Species Act of 1973, as amended (16 U.S.C. §§ 1531-1544);

• Executive Order 13186, Responsibilities of Federal Agencies to Protect Migratory Birds 

(66 FR 3853, Jan 17, 2001);

• Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. §§ 136 et seq.);

• Fish and Wildlife Act of 1956, amended (16 U.S.C. §§ 791a et seq.);

• Fish and Wildlife Conservation Act of 1980, as amended (16 U.S.C. §§ 2901 et seq.); 

• Fish and Wildlife Coordination Act of 1980, as amended (16 U.S.C. §§ 661 et seq.);

• Migratory Bird Conservation Act of 1929, as amended (16 U.S.C. §§ 715 et seq.);
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• Migratory Bird Treaty Act of 1918, as amended (16 U.S.C. §§ 703-712);

• National Environmental Policy Act of 1969, as amended (42 U.S.C. §§ 4321-4347).

C. Missions of Both Parties

Office of Pesticide Programs

The mission of EPA is to protect human health and the environment. EPA is committed to 

ensuring that the American public has air that is safe to breathe, water that is clean and safe to 

drink, food that is safe to eat, and communities that are protected from toxic chemicals. Within 

the context of EPA’s broad mission, OPP protects human health and safeguards the environment 

from potential risks associated with the use of pesticides.

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The primary statutes regulating pesticide use in the United States are the Federal Insecticide, 

Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. §§ 136 et seq.) and the Federal Food, Drug, 

and Cosmetic Act (FFDCA) (21 U.S.C. §§ 346a). FIFRA gives EPA the authority to regulate 

the registration (licensing) and use of pesticides and FFDCA governs the establishment of 

tolerances (also known as maximum residue limits) on food and animal feed to ensure that

human dietary exposures are safe. In order for a pesticide to be registered (licensed) under 

FIFRA, it must be demonstrated that the pesticide’s use will not result in unreasonable adverse 

effects on the environment. 

FIFRA provides EPA with authority to make pesticide regulatory decisions necessary to ensure 

the safe use of pesticides and to require any data the Agency determines are needed to reach 

those decisions. FIFRA also requires the periodic review of existing registrations to ensure 

pesticides continue to meet the most current scientific and regulatory standards. In connection 

with registration, EPA reviews and approves pesticide product labeling which, once approved, 

provides legally binding use instructions and limitations to ensure that use of the product will not 

result in unreasonable adverse effects to the environment2

. EPA also is authorized by FIFRA to 

approve use of unregistered pesticides in emergency situations. Under certain circumstances, 

States are also authorized to issue State-specific registrations (known as Special Local Needs 

registrations) for additional uses of EPA registered pesticides to address pest problems within the 

State.

 1 A pesticide is defined by FIFRA as any substance or mixture of substances intended for preventing, destroying, 

repelling, or mitigating any pest. Though often misunderstood to refer only to insecticides, the term pesticide also 

applies to herbicides, fungicides, and various other substances used to control pests. Under United States law, a 

pesticide is also any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant. 2 As defined by Section 2(bb) of FIFRA, the term “unreasonable adverse effects on the environment” means (1) any 

unreasonable risk to man or the environment, taking into account the economic, social, and environmental costs and 

benefits of the use of any pesticide, or (2) a human dietary risk from residues that result from a use of a pesticide in 

or on any food inconsistent with the standard under section 408 of the Federal Food, Drug, and Cosmetic Act (21 

U.S.C. §§ 346a) The Administrator shall consider the risks and benefits of public health pesticides separate from the 

risks and benefits of other pesticides. In weighing any regulatory action concerning a public health pesticide under 

this act, the Administrator shall weigh any risks of the pesticide against the health risks such as the diseases 

transmitted by the vector to be controlled by the pesticide.
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By controlling insect pests3, plant diseases, and invasive species, pesticides can be beneficial for 

a variety of reasons, including (but not limited to) the following: increasing food production, 

controlling household pests, protecting rights-of-way, keeping waterways navigable, restoring 

native habitats, and protecting human health (e.g., disease vector control). However, depending 

on their particular mode of action, pesticides may also be associated with risks to non-target 

organisms. Therefore, pursuant to its FIFRA responsibilities, before EPA registers a pesticide 

under FIFRA, OPP conducts ecological risk assessments to determine what potential risks to the 

environment are posed by various pesticides, and whether changes to the use or proposed use of 

such pesticides are necessary to protect the environment from unreasonable adverse effects. This 

standard of safety encompasses consideration of effects to migratory birds.

In addition, under the Endangered Species Act (ESA), OPP considers the potential impacts of 

pesticides on the species listed as endangered or threatened by the FWS and National Marine 

Fisheries Service (NMFS) and on any designated critical habitat for those species. OPP is 

required to consult with the FWS and/or NMFS on an action if OPP determines that use of a 

pesticide “may affect” a listed species or designated critical habitat.

OPP works with the U.S. Department of Agriculture (USDA) to implement research, 

demonstration, and education programs to support nationwide adoption of Integrated Pest 

Management (IPM). OPP assists FWS and other Federal agencies in applying IPM techniques 

and approaches for pest management activities and supports efforts to promote IPM through 

Federal procurement and regulatory policies. To achieve such broad collaboration and

coordination on advancing IPM techniques and policies, OPP participates in the meetings and 

program activities of the Federal IPM Coordinating Committee. As resources allow, OPP 

awards financial assistance agreements for demonstrating and implementing the use of IPM in 

agricultural and non-agricultural settings, especially as a means for reducing the risk of 

pesticides.

In addition to its regulatory functions, OPP promotes a variety of partnerships related to pesticide 

use, including the Pesticide Environmental Stewardship Program (PESP), a voluntary private and 

public partnership dedicated to reducing pesticide use and risk, and the IPM in Schools Program.

Fish and Wildlife Service

As a Federal agency within the U.S. Department of the Interior, the mission of the FWS is to 

work with others to conserve, protect, manage, and enhance fish, wildlife, plants, and their 

habitats for the continuing benefit of the American people. The FWS Migratory Bird Program 

serves as a focal point in the United States for policy development and strategic planning, 

program implementation, and evaluation of actions designed to conserve migratory birds and 

their habitats. 

 3 The term “pest” means (1) any insect, rodent, nematode, fungus, weed, or (2) and other form of terrestrial or 

aquatic plant or animal life or virus, bacteria, or other micro-organisms (except viruses, bacteria, or other microorganisms on or in living man or other living animals) which the Administrator declares to be a pest under section 

25 c (1) Of FIFRA.
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The FWS is legally mandated to implement the conservation provisions of the MBTA, which 

includes responsibilities for managing migratory bird populations, domestic and international 

coordination, and the development and enforcement of regulations that govern authorized take of 

migratory birds. The Migratory Bird Conservation Act established the Migratory Bird 

Conservation Commission to approve land to be acquired with Migratory Bird Conservation 

Funds. The Fish and Wildlife Coordination Act requires consultation under certain 

circumstances and added provisions to recognize the important contribution of wildlife resources 

to the Nation and to require equal consideration and coordination of wildlife conservation 

including habitat protection, through acquisition, enhancement, and/or management and 

avoidance and minimization of adverse impacts related to federal activities.

FWS programs that involve bird conservation activities include:

1. The Division of Migratory Bird Management and the Migratory Bird Programs in the 

FWS Regional Offices serve as focal points for policy development and strategic 

planning. These offices develop and implement monitoring and management initiatives 

that help maintain healthy populations of migratory birds and their habitats and provide

continued opportunities for citizens to enjoy bird-related recreation. 

2. The Division of Bird Habitat Conservation is instrumental in supporting habitat 

conservation partnerships through the administration of bird conservation grant programs 

and development of Joint Ventures that serve as major vehicles for implementing the 

various bird conservation plans across the country.

3. Ecological Services Field Offices across the country serve as the primary contacts for 

technical assistance and environmental reviews involving migratory bird issues. The 

Field Offices coordinate with the Regional Migratory Bird Offices, as necessary, during 

these reviews regarding permits and overall migratory bird conservation coordination.

4. The Office of Law Enforcement is the principal FWS program that enforces the legal 

provisions of the MBTA, Eagle Act, ESA, and other laws pertaining to migratory bird 

conservation.

5. The National Wildlife Refuge System manages National Wildlife Refuges (NWRs) and 

Waterfowl Production Areas across the country, many of which were established to 

protect and conserve migratory birds. NWRs not only protect important bird habitat, but 

also focus on monitoring migratory bird populations and restoring and maintaining native 

habitats.

6. The Science Applications program works with other FWS programs and partners to 

ensure that the necessary science, tools, and capacity are available for planning and 

implementing the most efficient and effective conservation actions to protect fish and 

wildlife including migratory birds. They facilitate regional self-directed science 

management partnerships called Landscape Conservation Cooperatives to develop and 

apply shared science capacity to conservation.
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D. Statement of Mutual Interest and Benefit

When used properly, pesticides provide societal benefits such as controlling disease-causing 

organisms and fostering a safe and abundant food supply. The Parties have a common interest, 

however, in ensuring that pesticide use is also consistent with the proper conservation and 

management of America’s natural resources. The Parties agree that migratory birds are 

important components of biological diversity and that conservation of migratory birds and their 

habitats helps sustain ecological integrity, contributes to public conservation education, and 

enhances the growing interest in outdoor recreation opportunities. Further, the Parties mutually 

agree that it is important to: 1) conserve migratory bird populations and their habitats; 2) 

recognize that actions taken to benefit some migratory bird populations may adversely affect 

other migratory bird populations; and 3) recognize that actions that may provide long-term 

benefits to migratory bird populations may have short-term impacts to individual birds.

E. Responsibilities of Both Parties

To the extent permitted by law, subject to the availability of appropriations, within 

administration budgetary limits, and in harmony with OPP and FWS missions and capabilities, 

both Parties resolve to:

1. Support the conservation intent of Executive Order 13186, and the migratory bird 

conventions by: a) integrating bird conservation principles, measures, and practices into 

agency planning and actions; b) avoiding and/or minimizing the take of migratory birds 

and adverse effects on their habitats; and c) preventing or abating pollution detrimental to 

migratory birds and their habitats.

2. Do the Following: FWS will provide available information on the economic, societal, and 

environmental benefits of migratory birds to OPP for its consideration in risk 

management decisions related to pesticide registrations.

3. Identify where legal use of registered pesticides in the United States is having, or is likely 

to have, a measurable negative effect on migratory bird populations and their habitats, 

and work together to promote research and information exchange that result in the 

minimization of impacts, increased migratory bird conservation, and restored or enhanced

migratory bird habitat.

4. Improve post-registration evaluation of pesticide effects on migratory birds by: 

a. Working collaboratively to improve incident reporting to OPP and FWS through 

increased outreach, using web-based information and reporting tools. 

b. Improving mechanisms and seeking funding opportunities for testing bird 

carcasses for pesticide poisoning via partnerships with Federal Agencies, States, 

Universities, and NGOs, where resources permit.
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5. Provide training and information on the MBTA, migratory birds and their habitats (e.g., 

workshops, outreach materials, web-based training) to appropriate agency staff. This 

includes developing and sponsoring training regarding:

a. Responsibilities under the MBTA and Eagle Act.

b. Current information on the biology and ecology of bird species of concern.

c. Potential ways to avoid or minimize the creation of avian stressors on migratory 

bird species, including nesting, rearing, feeding, migration, or over-wintering 

populations and their habitats.

6. Work cooperatively to identify conservation measures that minimize avian stressors 

resulting from pesticide use.

7. Participate annually, as practicable, in the interagency Council for the Conservation of 

Migratory Birds to share information on conservation of migratory birds. The duties of 

the Council include the following: 

a. Sharing the latest resource information (e.g., conservation measures, data, etc.) to 

assist in the conservation and management of migratory birds.

b. Fostering partnerships to further the goals of Executive Order 13186.

c. Reporting annually on the accomplishments and recommendations related to the 

Executive Order.

d. Selecting an annual recipient of a Presidential Migratory Bird Federal 

Stewardship Award for contributions to the protection of migratory birds.

F. Responsibilities of OPP

Within the context of existing programs of pesticide registration and registration review, which 

includes conducting ecological risk assessments that address migratory birds, OPP intends to 

integrate migratory bird conservation measures into OPP activities to the extent practicable and 

consistent with all legal requirements when conducting its reviews. OPP resolves to: 

1. Continue to consider the potential effects of pesticides on migratory birds in its risk

assessment and risk management decisions, with emphasis on Birds of Conservation 

Concern and other species of concern.

2. Continue and improve upon its use of pesticide ecological incident data in ecological risk 

assessments as part of a weight-of-evidence approach in making risk conclusions.

a. FIFRA 6(a)(2) requirements stipulate that known adverse effects related to a 

pesticide, including pesticide ecological incidents, must be reported to OPP by the 
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registrant of the pesticide (i.e., pesticide companies are required by law to report 

known pesticide incidents involving their pesticide active ingredient(s) to OPP).

b. Reporting of ecological incidents for non-registrants is voluntary. Therefore, the 

Agency plans to continue to promote the reporting of pesticide ecological 

incidents by non-registrants (e.g., continue to promote the use of the National 

Pesticide Information Center web portal http://www.npic.orst.edu/ for reporting 

pesticide-related ecological incidents; continue with the OPP Incident Workgroup 

that was set up to improve incident reporting).

3. Incorporate best available data (including those on birds) in pesticide risk assessments 

conducted for registration review as part of the weight-of-evidence approach when 

making risk conclusions.

4. Consistent with the requirements of 40 CFR §156.85, work to ensure that bird hazard 

language appears on all labels, when appropriate. OPP plans to post examples of bird 

hazard language on a webpage dedicated to EPA’s activities related to pesticides and 

migratory birds. 

5. Promote migratory bird conservation in international activities and with other countries 

and international partners, in consultation with the Department of State, as appropriate or 

relevant to the agency's authorities.

a. OPP plans to continue to work with national and international partners to protect 

pollinators (including migratory birds) through regulatory, voluntary, education, 

and research programs.

b. Under the auspices of the Risk Reduction Steering Group, Organization for 

Economic Co-operation and Development (OECD) Working Group on Pesticides, 

and the North American Free Trade Agreement Technical Working Group 

(NAFTA TWG), OPP plans to enhance awareness of migratory bird issues and 

maintain its support of information sharing and technical assistance to other 

industrialized countries on IPM techniques and approaches as strategic options for 

reducing the risks of pesticides on the environment and wildlife.

6. Work collaboratively with FWS to obtain pertinent biological information on life 

histories, and ecological and behavior patterns of migratory birds that will help inform 

OPP ecological risk assessments and potential limitations on pesticide product use.

7. Work collaboratively with other EPA offices on rules, permits, enforcement actions, and 

policies that promote and enhance the protection of migratory birds as appropriate.

8. Work with non-federal entities to further bird conservation. OPP plans to:

a. Promote and support the Pesticide Environmental Stewardship Program (PESP), 

an EPA partnership program that works with the nation’s pesticide-user 
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community to further Integrated Pest Management (IPM) practices and other 

actions to promote the safe use of pesticides. To participate in the program, both 

agricultural and non-agricultural PESP members commit to goal-oriented 

strategies to focus voluntary efforts, including in some cases, specific actions to 

conserve and protect natural resources, while reducing pests and the risks of 

pesticides. 

b. Work with non-federal partners engaged in bird conservation on sharing 

information on birds and pesticides.

c. Attend bird conservation meetings to promote information exchange and 

relationship building with our Federal and non-Federal partners on issues related 

to migratory bird conservation.

9. Review and improve, as appropriate, OPP’s education and outreach on the impacts of 

pesticide use on migratory birds; and, where warranted, seek to improve the quality and 

clarity of label language during the registration review process to inform users of 

potential risks associated with a product’s use.

10. Work with the FWS to develop and provide training to scientific staff, risk managers, and 

management on the conservation of migratory birds as it relates to pesticide use and 

registrations.

11. Develop and maintain a webpage devoted to information on the effects of pesticide use 

by professional pest control services and agricultural applicators, and homeowners on 

migratory birds that will include copies of Executive Order 13186, the signed MBTA 

MOU, training and educational materials intended to advance migratory bird 

conservation consistent with the objectives of the Executive Order 13186, conservation 

measures intended to reduce or eliminate take, examples of bird hazard language for 

pesticide product labels, and links to other sites with pertinent bird and pesticide 

information. 

12. In addition to assessing risks to birds from the use of pesticides, specifically for avicides, 

OPP plans to:

a. Ensure that the FWS is made aware of new registrations involving avicides within 

30 days after registration (e.g., via a letter, e-mail, or telephone call).

b. Seek implementation of appropriate label language informing users of the need to 

discuss with FWS any necessary migratory bird permits and comply with permit 

terms and conditions during bird management actions using avicidal products, 

when appropriate.

c. Encourage the development of less toxic alternatives to avicides (e.g., via the 

Agency’s IPM programs).
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13. In addition to assessing risks to birds from the use of pesticides, specifically for 

rodenticides, OPP plans to:

a. Ensure that the FWS is made aware of new registrations involving rodenticides 

within 30 days after registration (e.g., via a letter, e-mail, or telephone call).

b. Encourage the development of rodenticides that are less toxic to birds or 

alternatives to rodenticide use (e.g., via the Agency’s IPM programs).

14. Confer with FWS, as appropriate, for input on label language to reduce risk of migratory 

bird mortalities from pesticide products, with particular emphasis on avicidal and 

rodenticide products.

15. In considering whether to require label language to reduce potential risks to migratory 

birds, OPP will seek public comment on such proposed regulatory decisions, consistent 

with its public participation policies for registration and registration review decisionmaking.

16. Encourage pesticide users to employ IPM techniques and approaches and “best 

management practices” that reduce exposure of chemicals in the environment through, 

for example, EPA partnership programs, such as PestWise. PestWise summarizes the 

various voluntary and grant-giving programs in which OPP works collaboratively with 

companies, non-profit organizations, communities, and individuals to promote 

environmental stewardship. The promotion of environmental stewardship is done 

through information exchange, education and promotion, technical assistance, and 

funding and grant opportunities, as resources permit. 

17. Where such information is collected in the course of agency actions or supported through 

federal financial assistance, make reasonable efforts to share such information with the 

FWS and other appropriate repositories of such data.

18. If through this MOU any significant change in pesticide risk assessment methodology for 

migratory birds is proposed, EPA will convene a FIFRA Scientific Advisory Panel 

review, which includes public comment, before any proposed methodology would be 

implemented.

19. Provide the public with notification of the availability of this MOU through a notice 

published in the Federal Register.

G. Responsibilities of FWS

FWS agrees to implement the commitments made in this MOU in each of its program areas 

where applicable to the extent permitted by law and in harmony with agency missions, and 

subject to the availability of appropriations. FWS resolves to:
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1. Provide OPP with technical information to assist in identifying avian stressors and

conservation measures and practices for alleviating these stressors, for consideration in 

OPP’s decision-making processes. This assistance may aid OPP in its pesticide 

regulatory decisions to promote the conservation of migratory bird species and their 

habitat.

2. Work collaboratively toward developing and providing OPP with species-specific avian 

conservation plans for use in developing OPP ecological risk assessments as they relate

to migratory birds and their habitat.

3. Continue to cooperate and coordinate with other Federal agencies, State agencies, 

universities, and independent non-governmental organizations to develop and conduct 

surveys that provide reliable information on the distribution, status, and trends of 

migratory bird populations on national and/or regional scales. FWS intends to make 

existing information available in a timely manner to aid OPP in assessing impacts of 

pesticides to migratory birds. This includes updating the FWS Birds of Conservation 

Concern at five-year intervals. 

4. To assist EPA in making informed pesticide registration decisions, the FWS will provide 

bird mortality incident data to EPA OPP in a timely manner, as appropriate. This 

includes the development of a FWS-wide process to facilitate efficient exchange of 

mortality incident data to OPP.

a. Develop mechanism to exchange mortality data between Service Contaminants 

and Avian Health and Disease groups as well as disease and forensic laboratories. 

b. Promote and provide opportunities for hypothesis-driven field research with 

partners to investigate acute and chronic impacts of pesticides on avian immunity 

and population health

5. Provide training (e.g., regional workshops, outreach materials, web-based training) on 

migratory bird inventory, management, and monitoring methods and practices for 

migratory birds and their habitats to appropriate FWS and EPA staff. This includes

developing and sponsoring training regarding:

a. The conservation of migratory birds as it relates to pesticide use and registrations.

b. Responsibilities under the MBTA and Eagle Act.

c. Information on the biology and ecology of bird species of concern.

d. Potential ways to avoid or minimize avian stressors on populations and habitats 

including nesting, rearing, feeding, migrating, or over-wintering individuals.

6. Conduct informational and educational programs oriented toward migratory bird 

conservation, including habitat restoration.
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7. Work with OPP to develop an informal process promoting information exchange on OPP 

actions related to avicides and rodenticides.

8. Work with OPP to develop and make available information on alternative controls to 

rodenticides and avicides including less toxic alternatives to avicides.

9. Work with OPP to explore ways to minimize pesticide exposures to migratory birds.

10. Continue to maintain a permits web page that provides links to all FWS offices 

responsible for issuing permits for intentional take of migratory birds. Identify 

mechanisms, alternate approaches, or other activities that would reduce or eliminate take, 

or advance migratory bird conservation consistent with the objectives of Executive Order

13186.

11. Inform OPP of any new FWS regulation or policy associated with take of migratory 

birds. This includes providing training on such regulations or policies, when practicable.

H. Dispute Resolution

Prevention of potential conflicts or resolutions of actual disagreements between the 

Parties will be attempted first at staff levels and elevated through the respective organizational 

levels if necessary. Conflict prevention or traditional Alternative Dispute Resolution (ADR) 

processes will be used to strive to achieve consensus. 

Collaborative processes, including informal meetings or negotiations, will be used to avoid or 

minimize a dispute. If the dispute already has developed, more traditional processes may be 

appropriate, such as mediation or a negotiation assisted by a neutral third party. Notification of 

potential conflict or a dispute by either Party should be put in writing and attempts to resolve the 

matter at the Field level should occur within 30 days after receipt of written notice. If there is no 

resolution at this level within 30 days, FWS may elevate the issue to the appropriate officials at 

Regional offices. Note, EPA Regional offices are not involved in pesticide licensing. In the 

event that there is no resolution at that level within 30 days, the dispute may be elevated by FWS 

to the Washington, D.C. office. 

I. Agreement

1. This MOU itself does not alter, expand, or substitute for provisions of existing laws or 

regulations, nor is it a regulation itself. It does not impose legally-binding requirements on the 

participating agencies, States, Tribes, local governments or the regulated community. This MOU 

is intended to provide internal procedural guidance to Federal agency staff to assist them in 

carrying out their activities.

2. Either party may terminate this MOU, in whole or in part, at any time before the date of 

expiration by providing the other party with a written statement within 30 days to that effect. 
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Changes within the scope of this MOU are to be made by the issuance of a bilaterally executed 

modification, made in writing.

3. This MOU in no way restricts either party from participating in similar activities with other 

public or private agencies, governments, organizations, or individuals.

4. This MOU in no way alters any applicable requirements on either party to conduct or review 

environmental analyses, including those relating to National Environmental Policy Act 

requirements, where appropriate.

5. This MOU is neither a fiscal nor a funds obligation document. Any endeavor involving 

reimbursement, contribution of funds, or transfer of anything of value between the Parties will be 

handled in accordance with applicable laws, regulations, and procedures, including those for 

government procurement and printing. Such endeavors will be outlined in separate agreements 

that shall be made in writing by representatives of the Parties and shall be independently 

authorized by appropriate statutory authority. This MOU does not provide such authority. 

Specifically, this MOU does not establish authority for noncompetitive award of any contract or 

other agreement. Any contract or agreement for training or other service must fully comply with 

all applicable requirements for competition.

6. Any press releases developed and intended to be issued for the express purpose of highlighting 

this MOU or the relationship established between the Parties as a result of this MOU are subject 

to prior approval of both Parties.

7. OPP and FWS plan to schedule meetings periodically to review implementation of the MOU 

and evaluate its effectiveness, as well as identifying opportunities for promoting conservation of 

migratory bird populations.

8. This MOU does not require changes to current contracts, permits, or other third agency 

agreements.

9. This MOU is intended only to improve the internal management of the executive branch and 

does not create any right or benefit, substantive or procedural, separately enforceable at law or 

equity by any party against the United States, its agencies or instrumentalities, its officers or 

employees, or any other person.

10. This MOU will not be construed as an admission of liability.

J. Definitions

Action – a program, activity, project, official policy, rule, regulation or formal plan directly 

carried out by a Federal agency. 

Birds of Conservation Concern – A list of priority species published and periodically updated by 

the FWS Division of Migratory Bird Management. The overall goal of this list is to identify the 

migratory and non-migratory bird species that, in addition to species already listed under the 
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ESA, represent the FWS’s highest conservation priorities. The most current version of the list, 

Birds of Conservation Concern 2008, is available at http://www.fws.gov/migratorybirds.

Conservation measures - measures to avoid impacts, or where avoidance is not practicable, 

minimize impacts, reduce or eliminate the impact over time, or compensate for impacts to the 

extent feasible and within the Parties capabilities and authorities.

Migratory bird – an individual of any species protected by the MBTA; a list of protected 

migratory bird species can be found in 50 CFR § 10.13.

Pests – Section 25 c (1) of FIFRA authorizes the Administrator, after notice and opportunity for 

hearing, “to declare a pest any form of plant or animal life (other than man and other than 

bacteria, virus, and other micro-organisms on or in living man or other living animals) which is 

injurious to health or the environment. Accordingly, EPA regulations at 40 CFR § 152.5 provide 

that:

an organism is declared to be a pest under circumstances that make it deleterious to man 

or the environment, if it is: (a) Any vertebrate animal other than man; (b) Any 

invertebrate animal, including but not limited to, any insect, other arthropod, nematode, 

or mollusk such as a slug and snail, but excluding any internal parasite of living man or 

other living animals; (c) Any plant growing where not wanted, including any moss, alga, 

liverwort, or other plant of any higher order, and any plant part such as a root; or (d) Any 

fungus, bacterium, virus, or other microorganism, except for those on or in living man or 

other living animals and those on or in processed food or processed animal feed, 

beverages, drugs (as defined in FFDCA §§ 201 (g)(1) and cosmetics (as defined in 

FFDCA §§ 201(i)).

Pesticide - Any substance or mixture of substances intended for preventing, destroying, 

repelling, or mitigating any pest. Though often misunderstood to refer only to insecticides, the 

term pesticide also applies to herbicides, fungicides, and various other substances used to control 

pests. Under United States law, a pesticide is also any substance or mixture of substances 

intended for use as a plant regulator, defoliant, or desiccant.

Species of concern – refers to several categories of birds including: 1) species listed in the 

periodic report, Birds of Conservation Concern (see above); 2) priority bird species documented 

in the comprehensive bird conservation plans (North American Waterbird Conservation Plan, 

United States Shorebird Conservation Plan, Partners in Flight Bird Conservation Plans); 3) 

species or populations of waterfowl identified as high, or moderately high, continental priority in 

the North American Waterfowl Management Plan; 4) listed threatened and endangered bird 

species in 50 CFR § 17.11. 

Stressor – any chemical or non-chemical alteration or addition to the environment that when 

introduced to a resource contributes to a threat to bird populations or individuals.

Take – to pursue, hunt, shoot, wound, kill, trap, capture or collect or attempt to pursue, hunt,

wound, kill, trap, capture or collect (50 CFR § 10.12). The Executive Order further defines 

“take” to include intentional take, meaning take that is the purpose of the activity in question, 
14

and unintentional take, meaning take that results from, but is not the purpose of, the activity in 

question. The regulations implementing the Eagle Act define take to mean pursue, shoot, shoot 

at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb bald and golden eagles 

(50 CFR § 22.3). The regulation defines ‘disturb” to mean to agitate or bother to a degree that 

causes injury, decrease in productivity, or nest abandonment.

The principal contacts for this MOU are as follows:

Steven Bradbury, Director Brad Bortner, Chief

Office of Pesticide Programs Division of Migratory Bird Management

U.S. Environmental Protection Agency U.S. Fish and Wildlife Service 

This MOU is executed as of the last date signed below and expires no later than five (5) years

thereafter, at which time it is subject to review and renewal, or expiration. 

The Parties hereto have executed this MOU as of the last date shown below.

Steven Bradbury, Director Dan Ashe, Director

Office of Pesticide Programs U.S. Fish and Wildlife Service

U.S. Environmental Protection Agency Department of Interior

1200 Pennsylvania Avenue, NW 1849 C Street, NW

Washington, DC 20240 Washington, DC 20004

 

Date Date