Major provisions of law and regs

1
Major provisions of law and regs

• Whats covered adults, young, eggs, and nests
• What is prohibited direct take only
• What is the nature of the law strict liability
  with criminal prosecution
• Are Federal agencies subject for the present,
  yes
• What birds are covered all but exotics
  (starlings, etc), pigeons, and quails, grouse,
  partridge

2
Executive Order 13186

• Conservation of Migratory Birds
• Directs Federal Agencies to Execute MOUs with FWS
• Federal aid grant programs exempted
• At FWS request, FWHA elected to develop a draft
  MOU
• Two year effort with input from Counsel

3
PICTURE A DOG CHASING TAIL

• MOU on MBTA re EO
• Dead in the water
• Programmatic Permit
• Waiting to see how the DOD does with theirs
• FWS developed a draft Programmatic Permit for
  Federal agencies not released
• Construction, Operation and Maintenance

4
Major provisions of MOU

• The FWS and FHWA agree that federally-funded
  highway construction projects and maintenance
  activities are necessary and could result in
  short-term or periodic, unintentional take of
  migratory birds

5
Both Agencies Agree to

• 1.   Perform timely, appropriate, environmental
  analysis and review of Federal actions required
  by NEPA or other established environmental review
  processes to evaluate the effects of agency
  actions and Federal-aid highway projects on
  migratory birds, with emphasis on species of
  concern. Consider habitats needed for
  reproduction, migration, and overwintering. This
  includes activities directly related to
  federally-funded highway project planning,
  construction, and operation.

6
Projects likely to take birds

• Examples of such projects and measures include
•  construction of new highways on new alignment
• bridge maintenance (e.g., painting, cleaning,
  etc.)
• bridge rehabilitation (e.g., deck replacement,
  replacement of piers, embankment protection)
•  bridge replacements
•  highway reconstruction (e.g., resurfacing,
  widening for safety, adding lanes, minor
  realignments for safety, adding access, etc.)
•   emergency repairs

7
Projects not likely to take birds

• 1.   Signing and striping, Resurfacing.
• 2.   Rehabilitation of existing highway
  facilities within existing row.
•  3.  Minor safety projects within existing row.
•  4.  Other projects which do not involve the
  removal of natural vegetative communities  
• 5. Management of rest areas and row, excluding
  mitigation sites

8
Minimization and avoidance

• 1.  Not disturbing, destroying, or removing
  active nests during the nesting season
• 2.  Avoiding the removal of unoccupied, inactive
  nests, if practicable, from the construction
  site. (bald eagles and ospreys, or colonial
  nests)
• 3.   Preventing the establishment of active nests
  during the nesting season on highway structures
•  4. No collecting, capturing, relocating, or
  transporting birds, eggs, young, or active nests
  without a permit
• Use non attractive vegetation for plantings in row

9
What should go in NEPA

• Habitat analysis
• Species list
• Likely mechanisms of take
• Mitigative measures
• Avoidance
• Minimization
• Acknowledge we have to advise contractor

10
NEPA

• MBTA impacts should not automatically disallow a
  Catex.
• Analysis of MBTA effects and prohibitions on take
  are not exempted at Catex level.
• Coordination with Service still necessary on all
  actions likely to take MiBs.
• NEPA analysis should consider population level
  effects

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What is a significant effect

• A significant take or effect is one which will
  limit the ability of a local or regional
  population to sustain itself
• This should apply to take of habitat as well as
  direct take
• Habitat takes are outside the authority of the
  MBTA
• Focus on Birds of Conservation Concern list

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What the FWS should do

• The FWS should provide information on species
  likely to nest in different habitat types
• Habitat surveys impracticable during most of
  nesting season but may be necessary
• FWS should have list of birds of special concern
• Review and respond to NEPA analysis

13
Whats happening now

• Letter from the FWS requesting we proceed with
  MOU
• Mary P wants us to play nice, but still say no to
  MOU for now
• DOJ has not formalized a new interpretation of
  the law and isnt likely to before November
• Were stuck in the middle for now

14
MBTA Web Resources

• http//ipl.unm.edu/cwl/fedbook/mbta.html
• Migratory Bird Treaty Act
• http//migratorybirds.fws.gov/EO5Cmigbrdeo.pdf
• Executive order
• http//www.fhwa.dot.gov/environment/migbird.htm