MBTAWhat You Need to Know • Purpose • The Law • Service Policy • How we impact • MBs • Executive Order • 13186 • Court Cases • NEPA
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
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
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?
www.fws.gov (Migratory Birds) • Final List of Bird Species to Which the MBTA Does Not Apply.Federal Register Notice, Press Release and additional informationincluding 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
Migratory Birds and NEPA If Migratory Birds are Likely to be impacted by our Projects – This shouldbe 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
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