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Migratory Bird Treaty Act (12-FD-a)

Information current as of 2019
The Migratory Bird Treaty Act (MBTA) protects birds and their nests and eggs, by prohibiting possession, sale, purchase, barter, transport, import, export, and take unless authorized by permit or regulation. Under the MBTA, “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” 50 CFR 10.12 Definitions. Take includes intentional take (where take is the purpose of the activity) and incidental take (where take results from, but is not the purpose of, the activity). Intentional and incidental take of migratory birds is prohibited unless otherwise permitted by the U.S. Fish and Wildlife Service (USFWS). However, neither the MBTA nor the current implementing regulations include a specific provision that would permit incidental take.

The MBTA applies to over 1,000 species of birds (hereafter “migratory birds”) identified in 50 CFR 10.13 List of Migratory Birds. Although migratory bird habitat is not expressly protected under the MBTA, activities that impact habitat and result in take of migratory birds would violate the MBTA. Many migratory birds, including raptor species, are sensitive to disturbances when nesting and roosting. Should such disturbances result in the wounding or killing of adult birds, chicks, or eggs, the activity causing the disturbances would violate the MBTA.

The MBTA is a strict liability statute. Any take of covered birds or eggs that occurs as a result of construction and/or operation of energy development projects is a violation of the MBTA. Therefore, it is important that developers work closely and cooperatively with USFWS biologists to identify project-related stressors and available protective measures when developing projects, and implement those measures prior to and during construction and operation of facilities.

Federal agencies taking actions that have, or are likely to have, a measureable negative effect on migratory bird populations are directed by Executive Order 13186: Responsibilities of Federal Agencies to Protect Birds (EO 13186) to take actions that protect migratory birds and their habitats. Specifically, EO 13186 states that federal agencies should integrate bird conservation principles into agency actions and planning. Such integration includes developing and implementing conservation measures that avoid the production of project-associated stressors or minimize the exposure of stressors to birds and the resources they depend on. While the MBTA only protects migratory birds and their nests and eggs, EO 13186 expressly protects both migratory birds and migratory bird habitat. Therefore, federal agencies should consider addressing adverse effects upon bird habitat through restoration and enhancement measures.

EO 13186 also requires federal agencies to evaluate the effects of actions and agency plans on migratory birds in any environmental analyses of federal actions required by National Environmental Policy Act (NEPA) or other established environmental review processes. This measure seeks to identify where unintentional take reasonably attributable to agency actions is having, or is likely to have, a measurable negative effect on migratory bird populations. Additionally, EO 13186 directs federal agencies to develop and use principles, standards, and practices that will lessen the amount of unintentional take; and to inventory and monitor bird habitat and populations within the agency’s capabilities.

For more information regarding applicability of the MBTA, consult the USFWS’s Migratory Bird Program Website.

Migratory Bird Treaty Act Process

12-FD-a.1 – Consult with FWS and Appropriate State Agencies

Developers are encouraged to consult with the FWS and state wildlife agencies to determine if the project has the potential to take migratory birds in violation of the MBTA. The USFWS provides an Information, Planning, and Conservation (IPAC) online screening tool that lists birds of conservation concern within specific land areas the project may affect. Depending on the project area, there may be wildlife action plans in place to develop management strategies and/or certain actions may be necessary to mitigate any potential impacts to migratory birds or their habitat. For more information, consult Avian Conservation Resources.

12-FD-a.2 Analyze Project-Related Impacts to Migratory Birds in NEPA Documents

Section 3 of EO 13186 requires federal agencies to develop a Memorandum of Understanding (MOU) with the USFWS to promote the conservation of migratory bird populations. One of the elements of the MOUs is a requirement that each agency ensure that environmental analysis of federal actions required by NEPA or other established environmental review processes evaluates the effects of actions and agency plans on migratory birds. For reference, the following MOUS are provided:

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