implementing the mbta on dod installations · dod is the 5th largest land managing agency, but...

Implementing the MBTA on DoD Installations

Management Burden

DoD is the 5th largest land managing agency, but harbors more sensitive species per acre than any other federal land managing agency (i.e., highest density of listed species) Nearly 450 federally-listed species (threatened and endangered) Over 550 species at-risk ~60 of these species exist only on DoD lands

Top 10 DoD Expenditures in Fiscal Year 2017 Desert tortoise, red-cockaded woodpecker, San Clemente loggerhead

shrike, blue whale, humpback whale, northern long-eared bat, western snowy plover, steelhead trout, fin whale, California least tern

Fiscal Year 1991-2017 DoD Expenditures $1.41B total spent on listed species, nearly $544M on birds 9 of top 10 cumulative expenditures = for birds Positive trend for birds; Management efforts are helping

• 6 Feb 2018• Deputy Asst. Secretary of

Defense Memo

“…until further clarification is provided, the Military Departments should continue to follow DoD guidance designed to minimize- to the extent practicable and without diminishing the effectiveness of military readiness activities- the incidental take of migratory birds.”

Maureen Sullivan, DASD (ESOH)

Incidental Take – DoD’s Position?

Safety also is a top priority

Managing for Bird/Wildlife Airstrike Hazards (BASH) Saves pilot lives Reduces damage costs to aircraft Benefits wildlife

Prevention is Key NR activities can

make a difference

Bottom Line

DoD will continue to manage as we have Guidance on Addressing Migratory Bird Management

in Integrated Natural Resources Management Plans (Aug 2017)

Consolidates and clarifies existing bird management requirements Key content: Migratory Bird Treaty Act, Executive Order 13186, and

Military Readiness Rule DoI issued Solicitor’s Opinion M-37050 (Dec 2017) Deputy Assistant Secretary Memo: Incidental Take of

Migratory Birds (Feb 2018) Clarifies that DoD personnel should continue current practices to minimize

incidental take and continue to follow existing guidance https://denix.osd.mil/nr/

Policy/Guidance

Solicitor’s Opinion M-37050 alone does not:Rescind the “military readiness rule” (50 C.F.R. §21.15),

§315 of the FY2003 National Defense Authorization Act, Executive Order 13186, or the resulting Memorandum of Understanding with USFWS

Installation Policy/Guidance

DoD Migratory Bird “Readiness” RuleRichard 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)

Migratory Bird Treaty Act Several historical challenges DoJ opined that MBTA does not apply to

Federal agencies and are not required to obtain permits

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

Farallon De Medinilla (FDM)

Small uninhabited island in the Commonwealth of the Northern Marianas Islands

Leased by theNavy for live

ordnance bombing

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

Congress Intervenes

Dec 2, 2002 - 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

DoD/MBTA Issues Cont…

DoD obtained authorization in FY2003 National Defense Appropriations Act►DoD authorized for

“unintentional take”during military readiness operations

►Final Rule published28 February 2007

Farallon de Medinilla

Migratory Bird “Readiness” Rule

True or False

As long as an action on a military installation is considered a “military

readiness activity” it is exempt from the Migratory Bird Treaty Act

False!The Rule is NOT a blanket

EXEMPTION from MBTA for military readiness activities !!

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 populationof a migratory bird species.

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 (i.e., BMP’s/minimization 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.

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.

RARE OCCURANCE

…..“we anticipate that this threshold of potential effects on a population has a low probability of occurring.”

FWS QUOTE

The USFWS stated in the DoD/MBTA rule that they do not anticipate a MRA will ever reach the level of significant adverse impact on a migratory bird population;

Eagle River Flats

Joint Base Elmendorf-Richardson,

Alaska

READINESS RULE AND NEPA

1. Utilize the best scientific data available to determine what species of migratory birds occur on an installation. Special consideration will be given to priority habitats, such as important nesting areas, migration stopover areas, and wintering habitats.

2. DOD may invite the Service to participate in the preparation of the NEPA analysis to determine if a proposed action is likely to result in a significant adverse effect on the population of a migratory bird species.

1. If it is determined that the proposed action may have a significant adverse effect on migratory birds the Armed Forces will confer and cooperate with the Service to develop and implement appropriate conservation measures to minimize or mitigate any such significant adverse effects.

2. In the event that “conservation measures” are required to minimize or mitigate adverse effects of the proposed action, the Armed Forces will retain records of any monitoring data for five years from the date the Armed Forces commence their action.

3. Monitoring activities will be in accordance with methodology and protocols detailed in the DOD Coordinated Bird Monitoring Guidelines or as recommended by the local FWS field office and/or Migratory Bird Management Office.

STEPS FOR ADDRESSING MIGRATORY BIRDS IN NEPA DOCUMENTS

99.99% of our Migratory Bird Analyses should end here.

Only in a very rare case should we have to implement these steps.

The best way for the Armed Forces to follow the Rule is by continuing to implement monitoring and BMP’s/mitigation 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

Chris Eberly

ADDRESSING MIGRATORY BIRDS IN NEPA DOCUMENTS

So, we have the basic data we need and an understanding by the FWS that it will be a very rare occurrence that triggers consultation with them.

What we need now is a template or model to guide the development of the migratory bird analysis section of the EA/EIS.

At a Minimum You Should Strive to:Maintain current information on migratory bird populations

and trendsDocument “migratory birds” in installation INRMPS Incorporate migratory bird population goals and habitat

objective into INRMPSConduct annual INRMP reviews with FWS & State to:

►Solicit their input concerning INRMP effectiveness ►Effectiveness of INRMP measures to avoid, minimize, or

mitigate takeAnalyze project effects, especially any new military

readiness activity, via NEPA documentationIf impacts may significantly affect a population of

migratory bird species, confer with FWS

Recommendations cont…

Monitor! Use best available database and best

scientific data Adopt conservation measures wherever

feasible

• Rule can only be withdrawn if Congress does so through future legislation

DoD Readiness Rule

Recent MBTA Issues Cont..

• E.O. 13186, Responsibilities of Federal Agencies to Protect Migratory Birds, 10 January 2001• Develop MOU with USFWS for bird conservation• Establish protocols for implementation of MOU• Dispute resolution procedures for each agency• Subject to availability of appropriations, establish bird conservation

programs• MOU with USFWS is completed with both the DoD and U.S. Coast

• Follow 2018 DoD Policy• Know the Law!! (Purposeful vs Incidental Take)• Consult 50 CFR 10.13 (“10.13 List”) to ID MBTA species• Ensure monitoring efforts are sufficient • Coordinate with U.S. Fish and Wildlife Service• Avoid and Minimize as appropriate• Obtain MBTA permits, if necessary

• Depredation• Scientific

What it Means to You (General)Migratory Bird Treaty Act

What it Means to You (Specific)

Migratory Bird Treaty Act

• Compliance with Eagle Act and ESA still required

• NEPA still applies to all federal actions

• Executive Order 13186 remains in effect (working to implement new DoD MOU)

• DoD Readiness Rule remains in place

Its not all about the MBTA

US Army Corps of EngineersBUILDING STRONG®

Overview of Avian Componentswithin INRMPsRichard A. Fischer, Ph.D.U.S. Army Engineer R&D Center, Vicksburg, MS

BUILDING STRONG®

Recommended Avian Components In INRMPs

• Describing Relevant Legislation

BUILDING STRONG®

• Migratory Bird Treaty Act (1918)

• Endangered Species Act• Executive Order 13186

2001 - “Responsibilities of Federal Agencies to Protect Migratory Birds”

• Sikes Act Recognizes the importance of military lands for their

natural resources and provides mechanism for their conservation while still meeting the military mission.

• NEPA

Relevant LegislationCompliance with Legislation

• Migratory Bird “Readiness” Rule

BUILDING STRONG®

• Describing Relevant Legislation• MBTA, ESA, BGEPA, Sikes Act, NEPA• DoD Migratory Bird Rule (Readiness Activities)• Executive Order 13186 (Non-readiness Activities)

• DoD/USFWS MOU• Identifying Priority Species for Monitoring/Management

BUILDING STRONG®

Identifying Priority Species

Key Points and Topics to Considerin Your INRMP

• USFWS Birds of Conservation Concern

• DOD Mission-sensitive Species

BUILDING STRONG®

• USFWS Birds of Conservation Concern• DoD Mission-Sensitive Priority Species

• Describe Prior/Current Monitoring Program

BUILDING STRONG®

Why Does DoD Monitor Birds?

Support the training and testing mission

Compliance with legislation Obtain basic inventory data Identify problems and their causes Help design management programs Evaluate successes and failures of

management

BUILDING STRONG®

Monitoring for ConservationWhy Does DoD Monitor Birds?

Shorebirds

Waterfowl

Secretive Marsh Birds

Raptor and Upland Game Birds

Landbirds

BUILDING STRONG®

• Have you used the DoD Coordinated Bird Monitoring Plan to develop or enhance your monitoring program?

Inventory and Monitoring

BUILDING STRONG®

DoD recently adopted a “Coordinated Bird Monitoring Plan” to:• ensure that DoD meets its

conservation and regulatory responsibilities for monitoring birds, especially under the recently signed Memorandum of Understanding (MOU) for migratory birds and the Final Rule authorizing take of migratory birds promulgated by the USFWS.

The Plan provides guidance for DoDsrole in bird monitoring at the various spatial scales including how installations can best design and carry out site-specific monitoring projects

DoD CBM Plan

By Jonathan Bart and Ann Manning, U.S. Geological Survey; Leah Dunn, Great Basin Bird Observatory;Richard Fischer and Chris Eberly, Department of Defense Partners in Flight

BUILDING STRONG®

• Does your installation have at least a baseline inventory? If so, how old are the data?

BUILDING STRONG®

• How frequent are your monitoring activities, and are they sufficient to maintain required knowledge necessary to satisfy regulatory obligations?

BUILDING STRONG®

• What inventory/monitoring protocols are being used?

BUILDING STRONG®

Acoustic MonitoringCornell Lab of OrnithologyInstallation of Automated Recording Devices in Yuma, AZ to detect nocturnal flight calls

Demonstrating Use of Autonomous Aerial Acoustic Recording Systems (AAARS) to Monitor Bird Populations in Inaccessible Areas

BUILDING STRONG®

Radar Ornithology

BUILDING STRONG®

Radar Ornithology

BUILDING STRONG®

• What inventory/monitoring protocols are being used?• Is monitoring adequate to evaluate impacts of management

actions (i.e., management-based monitoring design)?

BUILDING STRONG®

• How frequent are your monitoring actions, and are they sufficient to maintain required knowledge necessary to satisfy regulatory obligations?

actions (i.e., management-based monitoring design)?• What are you doing with your monitoring data once collected?

BUILDING STRONG®

• How frequent are your monitoring actions, and are they sufficient to maintain required knowledge necessary to satisfy regulatory obligations?

actions (i.e., management-based monitoring design)?• What are you doing with your monitoring data once collected?• Are you archiving inventory/monitoring data? If so, where?

BUILDING STRONG®

• Describe Prior/Current Monitoring Program• Coordinated Bird Monitoring Plan and Database

• Implement Monitoring Program for Priority Species

BUILDING STRONG®

• Implement Monitoring Program for Priority Species• Develop Conservation Measures to avoid/minimize impacts

BUILDING STRONG®

• Are you aware of management actions or military activities that have the potential to negatively impact migratory birds (breeding, wintering, and migration stopover)?

Conservation Measures and Mission Support

BUILDING STRONG®

• Are you aware of management actions or military activities that have the potential to negatively impact migratory birds (breeding, wintering, and migration stopover)?

• Do you specify management actions that have potential positive impacts on migratory bird habitat (breeding/wintering/migration)?

BUILDING STRONG®

• For each potential negative action, do you have Conservation Measures in place (or BMPs) to avoid or minimize take of migratory birds?

BUILDING STRONG®

• For each potential negative action, do you have Conservation Measures in place (or BMPs) to avoid or minimize take of migratory birds?• DoD has recommendations for conservation measures (habitat

conservation and enhancement) that also support the military mission.• USFWS provides Conservation Measures• Investigate IPaC as a tool

BUILDING STRONG®

• Implement Monitoring Program for Priority Species• Develop Conservation Measures to avoid/minimize impacts• Collaboration and Cooperation

BUILDING STRONG®

• Are you working collaboratively with other regional installations on migratory bird conservation? With other federal and state agency partners?

Collaboration

BUILDING STRONG®

• Are you participating in or promoting implementation of existing regional or national inventory and monitoring programs (Breeding Bird Survey, CBC, etc.)?

Collaboration

BUILDING STRONG®

• Are you participating in or promoting implementation of existing regional or national inventory and monitoring programs (BBS, CBC, MWBES, etc.)?

• Are you sharing data (inventory, monitoring, research) with national data repositories such as eBird, Avian Knowledge Network, DoD Coordinated Bird Monitoring Database, and MAPS?

Collaboration

BUILDING STRONG®

• Do you allow reasonable access by researchers, USFWS, and other partners to inventory/monitor, or conduct monitoring programs for Hawaiian Forest Bird Surveys, MAPS, etc.?

Cooperation

BUILDING STRONG®

• Do you allow reasonable access by researchers, USFWS, and other partners to inventory/monitor, or conduct monitoring programs under BBS, MAPS, etc.?

• Are you encouraging qualified local volunteers (e.g., local birding clubs) to assist in improving your avian data?

Cooperation

BUILDING STRONG®

• Do you allow reasonable access by researchers, USFWS, and other partners to inventory/monitor, or conduct monitoring programs under BBS, MAPS, etc.?

• Are you encouraging qualified local volunteers (e.g., local birding clubs) to assist in improving your avian data?

• Are you developing any partnerships as opportunities to leverage funding or personnel for inventory, monitoring, management, or research?

Cooperation

BUILDING STRONG®

• Implement Monitoring Program for Priority Species• Develop Conservation Measures to avoid/minimize impacts• Bird/Animal Aircraft Strike Hazard• Collaboration and Cooperation• Outreach and Public Access

BUILDING STRONG®

• Does your installation participate in International Migratory Bird Day? If so, what activities are promoted?

Outreach and Public Access

BUILDING STRONG®

• Do you provide outdoor wildlife viewing opportunities, where appropriate?

BUILDING STRONG®

• Do you promote or coordinate birding outings, either in-house or through local bird clubs?

BUILDING STRONG®

• Do you promote and distribute outreach and educational material (e.g., feral cats, DoD PIF maps and material)?

BUILDING STRONG®

• Do you promote and distribute outreach and educational material (e.g., feral cats, DoD PIF maps and material)?

• Do you have an installation bird checklist?

BUILDING STRONG®

• Implement Monitoring Program for Priority Species• Develop Conservation Measures to avoid/minimize impacts• Bird/Animal Aircraft Strike Hazard• Collaboration and Cooperation• Outreach and Public Access• Integration

BUILDING STRONG®

• How does your installation integrate activities with national, regional, and international bird conservation efforts?• DoD Partners in Flight Strategic Plan• North American Bird Conservation Initiative• Partners in Flight (PIF)• PIF Bird Conservation Plans for States and Physiographic

Regions• PIF North American Landbird Conservation Plan• North American Waterfowl Management Plan• U.S. Shorebird Conservation Plan• North American Waterbird Conservation Plan• State Wildlife Action Plans

Integration

BUILDING STRONG®

• Implement Monitoring Program for Priority Species• Develop Conservation Measures to avoid/minimize impacts• Bird/Animal Aircraft Strike Hazard• Collaboration and Cooperation• Outreach and Public Access• Integration• Regulations

BUILDING STRONG®

• Are you aware of, and do you follow DoD Migratory Bird Guidance to ensure compliance with obligations of NEPA, MBTA, and the Readiness Rule?

Regulations

BUILDING STRONG®

• Are you aware of, and do you follow DoD Migratory Bird Guidance to ensure compliance with obligations of NEPA, MBTA, and the Readiness Rule?

• Do you have required permits for banding, scientific collecting, taxidermy, special purposes, and depredation activities, as applicable to your installations?

Regulations

BUILDING STRONG®

DoD Partners in Flight

BUILDING STRONG®

What are the Main Avian Components ofAn INRMP?

Bald Eagles and Golden Eagles. Bald eagles are no longer protected under ESA, but are protected

under BGEPA, which contain prohibitions on incidental takes similar to reference (ESA).

Installations must ensure bald eagles are managed according to the USFWS National Bald Eagle Management Guidelines to minimize or avoid adverse effects.

Permits for incidental takes of both bald and golden eagles must be obtained according to an application process promulgated by USFWS.

Environmental planning analyses must address potential impacts of a proposed action to bald and golden eagles, pursuant to BGEPA

Other?

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