complying with mbta
DESCRIPTION
Proven ways to enhance compliance with federal bird lawsTRANSCRIPT
What about the Migratory Bird Treaty Act and Wind
Energy?
David Plumpton, Ph.D., CWBEcology & Environment Inc
130 Battery Street, 4th Floor
San Francisco, CA
94111
February 2, 2010
Who administers the MBTA?
The Migratory Bird Treaty Act is enforced by the U. S. Fish and Wildlife Service, whose charge it is to protect, restore, and manage migratory bird populations to:
• ensure long-term sustainability• socioeconomic benefits• improve hunting, bird watching • increase awareness of migratory birds for their intrinsic, ecological, recreational and economic significance.
How does the USFWS get involved?
1) as a cooperating agency for NEPA review for projects on public land or that have some other federal nexus2) need to comment on federally-licensed activities for agencies with jurisdiction by law (MBTA, BGEPA, ESA)3) by virtue of Special Expertise.
…or, because you wisely consulted them informally to discuss your project
How do projects have MBTA conflicts?
• For most projects, MBTA concerns construction, not operation.
• Nesting by protected species is the chief
MBTA concern.
• Nests cannot be destroyed, and unintended
destruction is a violation.
• Most projects after construction pose less
direct threat to adult birds; nests are the main
avian risk to the typical non-wind project.
• Wind energy projects pose their greatest risk
to adult birds, and during operation.
MBTA at a glance
• The MBTA implements conventions with Canada (1916), Mexico (1936), Japan (1972), and Russia (1976).
• Authority lies with the DOI, which delegated enforcement authority to the USFWS.
• The MBTA protects nearly all U.S. migratory birds - 836 species - including 58 species that may also be legally hunted.
What about Wind Energy?
• Many provisions do not apply to wind energy. • The MBTA prohibits "take" of migratory birds or their
eggs, feathers, or nests: any attempt at hunting, pursuing, wounding, killing, possessing, or transporting any migratory bird, nest, egg, or part thereof, at any time, by any means, in any manner (16 U.S.C. 703).
• Convictions for unintentional take are misdemeanor offenses; penalties up to $15,000 and 6 months incarceration. Convictions for knowingly taking birds are felonies; fines up to $250,000 and up to 2 years imprisonment.
The less obvious stuff
• MBTA and habitat modification• Reasonably foreseeable, preventable• Unknowing, unintentional take • Wind turbines are not dangerous, or designed
to kill birds
MBTA Summary• DOI Authority delegated to the USFWS, which has sole
prosecutorial discretion.• Most actions resulting in a “taking” could be a violation.• “Take” is “…to pursue, hunt, shoot, wound, trap, capture, or collect,
or attempt to [see above actions]… any migratory bird, any part, nest, or eggs”... “at any time, by any means, in any manner”.
• No compliance mechanisms.• Imposes only criminal penalties.• Imposes Strict Liability; proof of intent is not required. • No provision to allow unauthorized or incidental take. • No absolution.• MOUs only with other federal agencies.
But, a little good news…
• No actions pursuant to MBTA or BGEPA have been brought against a wind energy project?
• No provision for citizen suit. Exception: the Administrative Procedures Act.
• No private cause for action.• Does not apply to federal agencies.• Prosecutorial “absolute discretion” rests with
the USFWS and DoJ.• No clear provision for habitat modification.
But other things kill a lot more birds!
Source Number of birds/year killed
Glass Windows 100-190 MILLION
House cats 100 million
Vehicles 50 – 100 million
Transmission lines Up to 174 million
Agriculture 67 million
Communication towers 4 – 10 million
Oil/Gas extraction 1 – 2 million
Wind turbines 33,000 (2.19 birds/turbine/year)
(Source: www.currykerlinger.com/windpower.htm)
(Source: Erickson et al., 2001)
The problem?
• NEPA doesn’t evaluate ‘relative risk’ • Intent to kill birds not established• Bird mortalities not reasonably foreseeable• Other sources not cognizable under the MBTA• Ignores cumulatively significant impacts from wind
energy mortalities• USFWS’s mandate is to reduce bird deaths from
sources within its control
From the USFWS:“The Office of Law Enforcement and the DOJ have used enforcement and prosecutorial discretion in the past for those who have made good faith efforts to avoid take of migratory birds.”
“Law Enforcement focuses on individuals and organizations that have engaged in take with disregard for their actions and the law, especially when conservation measures have been developed but are not properly implemented.”
What about the MBTA?Strategies for compliance
Strategies for compliance
1. Consult• Document efforts to comply with USFWS suggestions or Best
Practices• Make good faith efforts to avoid take of migratory birds• Secure a ‘Bird Letter’2. Foster relationships of cooperation and goal-sharing• Establish mutual goal of minimizing project impacts by every
feasible means3. Site facilities based on good study• Select project sites based on reliable studies• Site turbines and facilities within project sites based on sound
design• Conduct rigorous pre-construction studies• Share lessons learned - make information available
Strategies for compliance
4. Conduct rigorous post-construction mortality studies• what IF you find mortalities during post-construction studies?• Share lessons learned - make information available5. Adopt industry standards for mitigation and compliance• Enter into an Avian Protection Plan• Implement mortality reduction measures, especially when
suggested by USFWS• Enter staff into training provided by USFWS, APLIC6. Don’t ignore reasonably-foreseeable mortalities, or readily
available, easily implemented precautions7. Follow case law
Summary• The future remains uncertain, and it, along with
litigation probability, is almost certain to change. • The USFWS could enter MOUs with private
operators; modify the act to add civil liabilities; or create a provision allowing incidental take, but has no ability to do so currently.
• Operate to lessen, but not eliminate, probability of MBTA prosecution.
• Prosecution likelihood increases for certain actions, in proportion to how flagrant the violation.
MBTA Case Law
• 2009 Exxon-Mobil. Oil drilling and production mortalities in 5 states. (http://www.usdoj.gov/opa/pr/2009/August/09-enrd-795.html)
• 2009 PacifiCorp Electric. Over $10.5MM in fines, including criminal fine, restitution, and repairing facilities. (Lilley and Firestone, 2008)
• 2004 Center for Biological Diversity, Inc. v. FPL Group, Inc., (166 Cal. App. 4th 1349, 2008).
• 1999 Moon Lake Electrical Association. Established the MBTA prohibition of incidental take. (Lilley and Firestone, 2008)
• Presidential Order 13,186. Clarified the definition of take to include intentional and unintentional.
Recent Milestones
• 1989: APLIC USFWS/National Audubon Society• May 2002: Secretary of Interior issues Renewable Energy on
Public Land Initiative• 2002: Wind Turbine Siting Group• 2002: USFWS established its Wind Turbine Siting Working
Group• 2003: USFWS Published Interim Guidelines to Avoid and
Minimize Wildlife Impacts from Wind Turbines• 2008 DOI Wind Turbine Guidelines Advisory Committee white
paper• August 19, 2009 USFWS Wind Turbine Guidelines Advisory
Committee Synthesis Workgroup Background and Explanation of Draft v.4
Additional ResourcesU.S. Fish and Wildlife Service• www.fws.govUSFWS Wind Turbine Siting Advisory Committee• http://www.fws.gov/habitatconservation/windpower/
wind_turbine_advisory_committee.htmlAPLIC: Avian Power Line Interaction Committee
www.aplic.orgSuggested Practices for Avian Protection on Power Lines: the
State of the Art in 2006• http://www.aplic.org/SuggestedPractices2006(LR-2watermark).p
df• B. J. Sovacool, 2009. Energy Policy 37:2241-2248• M.B. Lilley and J. Firestone. 2008.