US Army Corps of Engineers BUILDING STRONG ® DoD Migratory Bird “Readiness” Rule Richard A. Fischer, Ph.D. U.S. Army Engineer R&D Center, Vicksburg, MS Significant input from Mr. Tom Egeland, Ret. Office of the Deputy Assistant Secretary of the Navy (Environment)

BUILDING STRONG ® Migratory Bird Treaty Act (MBTA - 16 USC 703)  Originally passed in 1918  protects migratory birds  basis is multi-national treaty   Strict criminal liability statute  USFWS has exclusive authority Chris Eberly

BUILDING STRONG ® 3 Migratory Bird Treaty Act  Several historical challenges  DoJ opined that MBTA does not apply to Federal agencies and are not required to obtain permits

BUILDING STRONG ® 4  Humane Society v. Glickman (2000 )  Federal agencies are subject to MBTA take prohibitions  Revised FWS Director’s Order  CBD v. Pirie  CBD v. Pirie - March (2002). Preliminary injunction ordering the Navy to apply for a permit and preliminarily enjoined the training activities conducted at Farallon De Medinilla  Navy activities at FDM resulting in take of migratory birds without a permit violated the MBTA

BUILDING STRONG ® 5 Farallon De Medinilla (FDM)  Small uninhabited island in the Commonwealth of the Northern Marianas Islands  Leased by the Navy for live ordnance bombing

BUILDING STRONG ® 6 CBD filed complaint against Navy  Alleged incidental take from Navy activities violated MBTA  Injunctions and stays continued for two years Clockwise: Great Frigatebird, Red-Footed booby, Masked Booby FDM Birds

BUILDING STRONG ® Congress Intervenes Dec 2, FY03 National Defense Authorization Act Section 315 provided that –  Within 1 year after enactment, the Secretary of the Interior will use her authority under MBTA to prescribe regulations that exempt the Armed Forces for incidental taking of migratory birds during military readiness activities

BUILDING STRONG ® DoD/MBTA Issues Cont…  DoD obtained authorization in FY2003 National Defense Appropriations Act ► DoD authorized for “unintentional take” during military readiness operations ► Final Rule published 28 February 2007 Farallon de Medinilla

BUILDING STRONG ® Migratory Bird “Readiness” Rule True or False All Military Readiness activities are exempt from the Migratory Bird Treaty Act

BUILDING STRONG ® Migratory Bird “Readiness” Rule False! The Rule is NOT a blanket EXEMPTION from MBTA for military readiness activities !!

BUILDING STRONG ® Migratory Bird “Readiness” Rule  Authorizes incidental take of migratory birds for military readiness activities provided the DoD action proponent confers with USFWS to develop and implement appropriate conservation measures to minimize or mitigate negative effects of the proposed action if the action will have a significant negative effect on the sustainability of a population of a migratory bird species.

BUILDING STRONG ® Migratory Bird “Readiness” Rule  Authorizes incidental take of migratory birds for military readiness activities provided the DoD action proponent confers with USFWS to develop and implement appropriate conservation measures to minimize or mitigate negative effects of the proposed action if the action will have a significant negative effect on the sustainability of a population of a migratory bird species.  Potential impacts to migratory bird populations and MBTA compliance shall be addressed in NEPA analysis using information from the appropriate INRMP where applicable, and the best scientific data available.

BUILDING STRONG ®  The Rule relies on the Armed Forces utilizing the NEPA process to determine whether any ongoing or proposed military readiness activity is likely to result in a significant adverse effect on the population of a migratory bird species.  If the Armed Forces identify a significant adverse effect on a migratory bird population(s) during the preparation of a NEPA analysis, this Rule requires the Armed Forces to confer and cooperate with the Service to develop and implement appropriate “conservation measures” to minimize or mitigate any such significant adverse effects. Migratory Bird “Readiness” Rule

BUILDING STRONG ®  The USFWS stated in the DoD/MBTA rule that they do no anticipate a MRA will ever reach the level of significant adverse impact on a migratory bird population;  However, this opinion does not preclude the Armed Forces from having to make an impact assessment of activities on migratory birds. The bird species that would/could most likely experience a significant adverse affect would be those categorized as SOC (BoCC).  The NEPA process is also essential in making such determinations for non-readiness activities, especially since there is currently no authorization to directly and incidentally take migratory birds. Migratory Bird “Readiness” Rule

BUILDING STRONG ®  The best way for the Armed Forces to be protected from an MBTA violation and possible litigation is by continuing to implement monitoring and conservation measures that benefit migratory birds and to conduct readiness and non-readiness activities in a manner that avoids/minimizes/mitigates their impacts on migratory birds. ► Key activities Focused monitoring Readiness/non-readiness activities assessment on birds Conservation measures Migratory Bird “Readiness” Rule

BUILDING STRONG ® 16 Regulation Contents  Addition of definitions to CFR 21.3 Military readiness activity Population Significant adverse effect on a population Conservation measures

BUILDING STRONG ® Definition of Military Readiness Activity  Includes all training and operations of the Armed Forces that relate to combat, and the adequate and realistic testing of military equipment, vehicles, weapons, and sensors for proper operation and suitability for combat use.

BUILDING STRONG ® Definition of Military Readiness Activity (cont.)  Does NOT include routine operations of installation operation support functions  Administrative offices  Military exchanges and commissaries  Water treatment facilities  Storage facilities  Schools, housing, laundries, MWR facilities  Mess halls  Operation of industrial activities; or construction or demolition of facilities listed above.

BUILDING STRONG ® Definition of Population  Population is a group of distinct, coexisting (conspecific) individuals of a single species, whose breeding site fidelity, migration routes, and wintering areas are temporally and spatially stable, sufficiently distinct geographically (at some time of the year), and adequately described so that the population can be effectively monitored to discern changes in its status

BUILDING STRONG ® Definition of Significant Adverse Effect  Significant adverse effect on a population means an effect that could, within a reasonable period of time, diminish the capacity of a population of migratory bird species to sustain itself at a biologically viable level.  A population is “biologically viable” when its ability to maintain its genetic diversity, to reproduce, and to function effectively in its native ecosystem, are not significantly harmed.  This effect may be characterized by increased risk to the population from actions that cause direct mortality or a reduction in fecundity.  Due to the significant variability in potential military readiness activities and the species that may be impacted, estimates of significant measurable decline will be determined on a case-by-case basis.

BUILDING STRONG ® Recommends Armed Services:  Engage in early planning and scoping  Involve USFWS in planning  Develop lists of conservation measures  Include comprehensive migratory bird management objectives in planning documents (INRMP, NEPA)

BUILDING STRONG ® 22 Recommendations cont…  Monitor!  Use best available database and best scientific data  Adopt conservation measures under all circumstances  Use USFWS technical assistance

BUILDING STRONG ® At a Minimum You Should Strive to:  Maintain current information on migratory bird populations and trends  Document “migratory birds” in installation INRMPS  Incorporate migratory bird population goals and habitat objective into INRMPS  Conduct annual INRMP reviews with FWS & State to: ► Solicit their input concerning INRMP effectiveness ► Effectiveness of INRMP measures to avoid, minimize, or mitigate take  Analyze project effects, especially any new military readiness activity, via NEPA documentation  If impacts may significantly affect a population of migratory bird species, confer with FWS