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Major provisions of law and regs

Major provisions of law and regs. What’s 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

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Major provisions of law and regs

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  1. Major provisions of law and regs • What’s 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 –

  11. 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

  12. 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. What’s 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 isn’t likely to before November • We’re 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/EO%5Cmigbrdeo.pdf • Executive order • http://www.fhwa.dot.gov/environment/migbird.htm

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