Bird
Conservation
on Private
Lands
Migratory Bird Treaty Act
Bald & Golden Eagle
Protection Act
EO 13186
Laws that Protect Birds
Migratory Bird Treaty Act – strict liability
statute that protects 1,007 species
Bald and Golden Eagle Protection Act –
provides protection for Bald and Golden
Eagles
Endangered Species Act – protects bird
species listed under the act
Migratory Bird Treaty Act of 1918
…it is unlawful to pursue, hunt, take, capture or
kill…any migratory bird, part, nest, egg…
(16 U.S.C. §§ 703-712)
International Treaties
Conventions developed to ensure the
conservation of our shared birds
Extent of Protection
MBTA currently covers 1,007 species
50 CFR § 10.13
Does not include resident game birds or
introduced species
Does include “resident” species
No provision for harm/harass (e.g., ESA)
No provision for bird habitat protection
The Basics
No UNINTENTIONAL take allowed
Courts have upheld that MBTA is a strict
liability statute…proof of “intent” not required
Criminal cases are brought by the federal
government against a private party (individual
or an entity) for violating the MBTA. The
result may be a misdemeanor or felony
criminal charge.
MBTA and Federal Agencies
• Court rulings have varied on whether MBTA
applies to Federal Agencies
• Humane Society V. Glickman ended the debate
– Federal agencies may incur civil liability under the
MBTA for ongoing or proposed actions that take birds
unless that take is permitted by regulation or FWS
permit.
– The Administrative Procedure Act (APA) allows a
private party to request that a court enjoin an agency
action that does not comply with the MBTA
(injunctions usually last until the action is brought into
compliance or dropped).
MBTA Enforcement
Service’s Office Law Enforcement has
discretion to bring prosecution…but
prefers use 3 “E’s”:
Education
Exchange of
information
Enforcement
Permitted Take
Intentional Take allowed by permit only
Permits required to POSSESS any part, nest, or bird
12 types of Take Permit available
Common:
Depredation
Scientific Collecting
Banding
Others:
Falconry
Rehabilitation
Religious
The Essence of E.O. 13186
“Responsibilities of Federal Agencies to Protect
Migratory Birds”
• Directs executive departments and
agencies to take certain actions to
further implement the Migratory
Bird Treaty Act
• Provides a framework for the
Federal Government’s compliance
with its treaty obligations
• Intended to enhance coordination
and communication
• Provides opportunities for habitat
protection, land management,
and conservation planning
10
Memorandum of Understanding
Per the Order…
“each Federal agency taking actions that have, or are
likely to have, a measurable negative effect on
migratory bird populations is directed to develop and
implement…a Memorandum of Understanding (MOU)
with the Fish and Wildlife Service that shall promote the
conservation of migratory bird populations.”
Further states… “Notwithstanding the requirement to
finalize an MOU…, each agency is encouraged to
immediately begin implementing the conservation
measures set forth…in subparagraphs (1) through (15) of
this section….”
Subparagraphs 1 - 15
(1) Integrate bird conservation into agency activities and by
avoiding or minimizing adverse impacts on migratory bird
resources
(2) Restore and enhance the habitat of migratory birds
(3) Prevent or abate the pollution or detrimental alteration of
the Environment
(4) Design migratory bird habitat and population conservation
principles, measures, and practices, into agency plans and
planning processes
(5) Ensure that agency plans and actions promote programs and
recommendations of comprehensive migratory bird planning
efforts
Subparagraphs 1 - 15
(6) Ensure that environmental review processes evaluate the
effects of actions and agency plans on migratory birds, with
emphasis on species of concern
(7) Provide notice to the Service in advance of conducting an
action that is intended to take migratory birds
(8) Minimize the intentional take of species of concern
(9) Identify where unintentional take is having, or is likely to
have, a measurable negative effect on migratory bird
populations, focusing first on species of concern, priority
habitats, and key risk factors. Develop and use principles,
standards, and practices that will lessen the amount of
unintentional take, in cooperation with the Service.
Subparagraphs 1 - 15
(10) Control the import, export, and establishment in the wild of
live exotic animals and plants that may be harmful to migratory bird
resources
(11) Promote research and information exchange related to the
conservation of migratory bird resources
(12) Provide training and information to appropriate employees on
methods and means of avoiding or minimizing the take of
migratory birds and conserving and restoring migratory bird habitat
(13) Promote migratory bird conservation in international activities
(14) Recognize and promote economic and recreational values of
birds
(15) Develop partnerships with non-Federal entities to further bird
conservation
E.O. 13186 Species of Concern
Refers to those Species:
• Listed in the periodic report Birds of Conservation Concern
published by the FWS Division of Migratory Bird
Management (2008)
• Priority migratory 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)
15
Bird Conservation Plans
Science-based Priorities and Objectives
Bald and Golden Eagle Protection Act
“Eagle Act”
“…prohibit anyone from “knowingly, or with
wanton disregard” taking, possessing, selling,
purchasing, or bartering, or offering to sell,
purchase, or barter, transporting, exporting, or
importing any bald or golden eagle, alive or
dead, or any part, nest, or egg thereof.”
16 U.S.C. §§ 668 – 668d
J. Nick Todd
Take Definition
Unlike the MBTA, the Eagle Act
specifically defines the term “take” to
include “pursue, shoot, shoot at,
poison, wound, kill, capture, trap,
collect, molest or disturb”
16 U.S.C. § 668c.
‘Disturb’
(72 FR 31132)
Disturb means to agitate or bother a Bald or Golden
Eagle to a degree that causes, or is likely to cause,
based on the best scientific information available, 1)
injury to an eagle, 2) a decrease in its productivity, by
substantially interfering with normal breeding, feeding,
or sheltering behavior, or 3) nest abandonment, by
substantially interfering with normal breeding, feeding
or sheltering behavior.
The Details
Both Civil and Criminal Prosecutions can occur
under the Eagle Act
Although little case law exists…the Eagle Act
probably applies to Federal Agencies
Permits available for both Intentional
and Incidental Take
Regulations for taking Eagles are at 50 CFR
Part 22
How is This Applicable to NRCS?
• NRCS has a responsibility to comply with the
MBTA, BGEPA, and EO 13186
• NRCS must assess effects to migratory birds
for all actions that NRCS conducts, oversees,
and/or funds
• Impact analyses are incorporated into our
Environmental Evaluation (CPA-52) and NEPA
documents
NRCS CPA-52 MBTA Guide Sheet
1. Could the action(s) result in a take (intentionally or
unintentionally) to any migratory bird, nest or egg? The
term "take" means to pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or attempt to pursue, hunt,
shoot, wound, kill, trap, capture, or collect (50 CFR
Section 10.12).
• NOTE: The MBTA does not prohibit the destruction of
a migratory bird nest alone (without birds or eggs)
provided that no possession occurs during the
destruction (USFWS, Migratory Bird Memorandum,
MBPM-2, April, 2003).
NRCS CPA-52 MBTA Guide Sheet
2. Is it the purpose of the action(s) to intentionally
"take" a migratory bird or any part, nest or egg
(such as, but not limited to: controlling depredation
by a migratory bird, or removal of occupied nests of
nuisance migratory birds)?
• NOTE: Migratory game birds taken under state
and Federal hunting regulations are exempt.
• If “Yes” - Inform the client that they must obtain a
permit from USFWS and any required state
permit before the action is implemented.
NRCS CPA-52 MBTA Guide Sheet
3. Have adverse effects on migratory birds been
mitigated (avoided, reduced, or minimized) to
the maximum practicable extent?
• Document mitigation measures on the NRCSCPA-52, or notes section below, and in the
plan.
NRCS CPA-52 MBTA Guide Sheet
4. Will unintentional take of migratory birds, either
individually or cumulatively, result in a measurable
negative effect on a migratory bird’s population?
• If "No," document and proceed with planning.
• If “Yes,” coordinate with USFWS to further lessen
the amount of unintentional take (E.O.
13186(3)(e)(9)). Repeat Step 1 or indicate which
of the following options is pursued by the client
(pick one). Document.
NRCS CPA-52 MBTA Guide Sheet
• If “Yes,” coordinate with USFWS to further
lessen the amount of unintentional take (E.O.
13186(3)(e)(9)). Repeat Step 1 or indicate
which of the following options is pursued by
the client (pick one). Document.
– The client will obtain a permit from USFWS before
the action is implemented; OR
– NRCS may need to terminate assistance. Contact
the NRCS State Environmental Specialist or
Wildlife Biologist.
Planning for Migratory Bird
Conservation
Proactive Conservation
Non-regulatory
Non-advocacy
Voluntary
Looking for shared interests among all partners
Combine priorities & objectives with opportunities
All Plans Have
•
•
Adaptive management framework
Pre-construction assessments
– Step 1 – Identify Problems and Opportunities
– Step 3 – Inventory Resources
•
Assess effects
– Step 6 – Evaluate Alternatives
•
Conservation measures
– Step 5 Formulate Alternatives
•
Post-construction monitoring
– Step 9 – Evaluate the plan
•
Impact validation
– Step 9 – Evaluate the plan
Assessing Project Effects
Identify migratory birds or habitats that may be
affected
Determine if MBTA, BGEPA, ESA applies
determine the appropriate consultation to undertake
Evaluate short-term, long-term, and cumulative
effects
Identify conservation measures
Develop Proactive
Conservation Plan if
appropriate
Direct Effects
Take of adults and/or nests during
construction/habitat removal actions
Collisions with power lines, guy wires, wind
turbines, fences
Indirect Effects
Fragmentation
Disturbance
Site Avoidance
Barriers
Cumulative Effects
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Renewable Energy Development
Communication Towers
Buildings/Structures
Cats
Other industries
Other land uses
Conservation Planning Steps 5 & 6 Formulate and Evaluate Alternatives
AVOID, MINIMIZE, and COMPENSATE
adverse effects of practices
Conservation Measures
• Also called BMPs and Mitigation Measures
(includes avoidance, minimize, and
compensation)
• Can be general or species/activity specific
• Implemented during pre-construction,
construction, and operation phases
Conservation Measures
Project Siting
 Use already disturbed lands to maximum extent
practicable
 Minimize area of disturbance
 Minimize fragmentation of intact blocks of habitat
 Avoid important migratory corridors or important
wintering areas
 Avoid features that attract birds (e.g., riparian areas,
wetlands)
Conservation Measures
Project Design
Minimize lighting – motion
sensors
Minimize noise effects
Minimize available perches
and nesting structures that
might attract birds
Minimize collision hazards
Mark fences
Avoiding the Nesting Season
Avoid disturbing activities during the nesting season
– Nesting season varies by species and area
– Contact NRCS, IDFG, or FWS biologist
– Clear vegetation the year prior to construction
If activities cannot avoid nesting season:
–
–
–
Provide explanation and justification
Survey project area prior to
construction
Establish work avoidance buffers
Work Buffers
Distances will vary
Species tolerance
Habitat type
Work type (e.g., prolonged loud noise, short duration)
Work with Biologist on appropriate distances
Work avoidance buffer should be based on level
of disturbance to a nesting bird
What distance does bird get flushed and remain off
nest?
 Biologist present during activities to ensure nest
protection
Habitat Restoration
Minimize effects to bird habitat thru postconstruction restoration actions
On-site restoration for temporary
disturbances
Off-site restoration for permanent
disturbances
Tools such as Biology Tech Notes 19 and 32
can help evaluate compensation for the loss of
bird habitat
Additional Conservation Measures
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Prevent release of non-native plants
Control and prevent spread of invasive plants
Minimize wildfire potential
Control erosion
Minimize operational road traffic
Reduce speed limits
Acknowledgements
U.S. Fish and Wildlife Service
Division of Migratory Bird Management
Eric L. Kershner, Ph.D.
Diana Whittington
Terry Rich
Questions??