Migratory Bird Treaty Act

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Migratory Bird Treaty Act
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MBTAWhat You Need to Know

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

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MBTA - Purpose
Protect Migratory birds, regulate take of any
bird, body part, nest, or egg
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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

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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.

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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.

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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!)

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MBTA Court Decisions

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

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Objectives of Service Policy

• 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?

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www.fws.gov (Migratory Birds)

• Final List of Bird Species to Which the MBTA Does
  Not Apply. Federal Register Notice, Press Release
  and additional information including QA's.
• AVIAN PROTECTION PLAN (APP) GUIDELINES
• The Edison Electric Institutes Avian Power Line
  Interaction Committee (APLIC)
• and
• U.S. Fish and Wildlife Service (USFWS)

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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

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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 dont kill any
  adults)
• You can harass to keep them away

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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

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

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Questions Discussion
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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

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Discussion

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