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SUBJECT: Migratory Bird Treaty Act and Executive Order 13186
FROM: James Shrouds, Director, Office of Natural Environment
TO: Division Administrators
Federal Lands Highway Division Engineers
Directors of Field Services
DATE: February 2, 2001

There have been some recent developments concerning the Migratory Bird Treaty Act (MBTA). The U. S. Fish and Wildlife Service (FWS) recently issued internal guidance (Director's Order 131) with respect to implementation of Act. Order 131 (attached) supplements FWS regulations implementing the MBTA found at 50 CFR Parts 10 and 21. The newly issued guidance is effective until December 31, 2001. This guidance was followed by Executive Order 13186, issued on January 10 (also attached).

The FWS guidance is based on the U. S. Court of Appeals, District of Columbia, decision that the MBTA applies to Federal agency actions. As a consequence, Federal-aid highway projects that are likely to result in take of birds protected under the MBTA will require the issuance of take permits from the local FWS jurisdiction.

Birds protected under the act include all common songbirds, waterfowl, shorebirds, hawks, owls, eagles, ravens, crows, native doves and pigeons, swifts, martins, swallows and others, including their body parts (feathers, plumes etc), nests, and eggs. A complete list of protected species is found at 50 CFR 10.13.

Take is defined as "to pursue, hunt, shoot, wound, kill, trap, capture, or collect, or any attempt to carry out these activities." A take does not include habitat destruction or alteration, as long as there is not a direct taking of birds, nests, eggs, or parts thereof.

Activities which are most likely to result in take of migratory birds on highway projects include, but are not limited to, clearing or grubbing of migratory bird nesting habitat during the nesting season when eggs or young are likely to be present, bridge cleaning, painting, demolition, or reconstruction where bird nests are present (for example, swallows). In anticipation of this situation, structures can be protected from nest establishment by various measures, such as netting or other means of interference with establishment of nests that does not result in death or injury to adults. Removal of inactive nests of migratory birds should not be accomplished prior to consultation with the USFWS office with local jurisdiction. A permit may be required for removal of inactive nests. Application for a take permit is made on FWS application form 3-200. Permits for take are issued in accordance with regulations at 50 CFR 21.

Executive Order 13186 directs departments and agencies to take certain actions to further implement the MBTA. Specifically, the Order directs Federal agencies, whose direct activities will likely result in the take of migratory birds, to develop and implement a Memorandum of Understanding (MOU) with the FWS that shall promote the conservation of bird populations. The Order should not affect Federal-aid projects because actions delegated to or assumed by nonfederal entities, or carried out by nonfederal entities with Federal assistance, are not subject to the Order, although such actions continue to be subject to the Migratory Bird Treaty Act itself. However, we anticipate an MOU would be required under the Order for projects under the Federal Lands Highway Program.

Further questions should be directed to Paul Garrett, paul.garrett@fhwa.dot.gov, phone (720) 963-3071, Robert Black, robert.black@fhwa.dot.gov, phone 202-366-1359, or Fred Bank, fred.bank@fhwa.dot.gov.

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