EXECUTIVE SUMMARY
Nearly 400 species of birds have been recorded in the state of Missouri. Cooperative facilities interactions with migratory birds may create operational risk, health and safety concerns, and avian injuries or mortalities. The U.S. Fish and Wildlife Service (USFWS) is in understands these issues and is also responsible for conserving and protecting avian species under laws and regulations that include the Migratory Bird Treaty Act (MBTA), Bald and Golden Eagle Protection Act (BGEPA), and the Endangered Species Act (ESA). Avian interactions with power lines, including electrocutions, collisions, and nest construction have been documented since the early 1900s. By the 1970s, biologists and agencies began to identify the extent of the issue. This prompted utilities and government agencies to develop solutions to this problem, beginning with literature in the 1980s . With growing raptor populations, as well as, growing involvement of public bird watching and the eruption of social media; cooperative concern with avian interactions has never been more important.
Regulations & Compliance
There are three federal laws in the United States protecting almost all native avian species, that prohibit “taking”, or killing, them. These laws include the 1.) Migratory Bird Treaty Act (MBTA), which protects over 800 species, 2.) The Bald and Golden Eagle Protection Act (BGEPA) providing additional protections to bald and golden eagles, and 3.) The Endangered Species Act (ESA), providing protections to species that are federally listed as threatened or endangered.
Migratory Bird Treaty Act (MBTA)
The MBTA implements four treaties that provide international protection to 1,026 native migratory birds (Department of the Interior 2011). Specifically, the MBTA states: “Unless and except as permitted by regulations…it shall be unlawful at any time, by any means, or in any manner to pursue, hunt, take, capture, kill… possess, offer for sale, sell…purchase…ship, export, import…transport or cause to be transported … any migratory bird, any part, nest, or eggs of any such bird… (The Act) prohibits the taking, killing, possession, transportation, and importation of migratory birds, their eggs, parts, and nests, except when specifically authorized by the Department of the Interior.” The word “take” is defined as “to pursue, hunt, shoot, wound, kill, trap, capture, or collect.” This is a strict liability statute where proof of intent is not required for a taking violation. In 1975, the Secretary of Interior clarified the broad definition of "take" by defining "harm" as:
"An act or omission which actually injures or kills wildlife, including acts which annoy it to such an extent as to significantly disrupt essential behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering; significant environmental modification or degradation which has such effects is included within the meaning of "harm."
Mortality or injury to protected species from electrocution or collision is considered a take and fully prosecutable under the MBTA. A violation of the MBTA by an individual can result in a fine of up to $15,000 and/or imprisonment for up to six months for a misdemeanor, and up to $250,000 and/or imprisonment for up to two years for a felony. Fines may be doubled for organizations (APLIC 2006).
Bald and Golden Eagle Protection Act (BGEPA)
The BGEPA provides additional legal protection for the bald and golden eagle. Punishment for the “take” of an eagle may result in a fine up to $100,000 and/or imprisonment for up to one year. Additional BGEPA provisions allow penalties up to $250,000 fine and/or two years imprisonment in the case of a second or subsequent conviction of eagle take (APLIC 2012). Bald and Golden eagles are also both protected by the MBTA.
Endangered Species Act (ESA)
Section 9 of the ESA prohibits “taking” of bird species listed as endangered or threatened under section 4 of the Act. The term “take” is defined as harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or attempt to engage in any such conduct. The term “harm” is defined as significant habitat modification or degradation that results in death or injury to listed species by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering. The term “harass” is defined as actions that create the likelihood of injury to listed species to such an extent as to significantly disrupt normal behavioral patterns, which include, but are not limited to, breeding, feeding, or sheltering. However, the USFWS may, under specified circumstances, issue permits that allow the take of federally listed birds, provided that the take is incidental to, but not the purpose of, otherwise lawful activity. Non-federal entities may obtain an “incidental take permit” for the take of listed bird species after development and approval of a Habitat Conservation Plan (HCP).
The MBTA and BGEP have no provision for allowing or permitting “take”. USFWS recognizes that some birds will be killed even if all reasonable measures to avoid it are used. Since take cannot be authorized, it is not possible to release individuals, companies, or agencies from liability, even if avian mortality avoidance’s are implemented. However, the Office of Law Enforcement does have enforcement discretion and focuses on those individual s, companies, or agencies that take migratory birds without regard for their actions and the law, especially when conservation measures had been developed but had not been implemented (APLIC 2012). Developing and implementing an Avian Protection Plan (APP) is recommended.to document measures the cooperatives take to avoid and minimize impacts to birds, during site selection, project design, and construction.
Developing an Avian Protection Plan
The Avian Power Line Interaction Committee (APLIC), and the U.S. Fish and Wildlife Service (USFWS) jointly developed Avian Protection Guidelines that are intended to help utilities construct their own avian protection pl ans (APPs) for managing avian/power line issues. An APP should provide the framework necessary for implementing a program to reduce bird mortalities, document utility actions, and improve service reliability. The APP may include the following elements:
- Corporate policy
- Training
- Permit compliance
- Construction design standards
- Nest management
- Avian reporting system
- Risk assessment methodology
- Mortality reduction measures
- Avian enhancement options
- Quality control
- Public awareness
- Key resources
Although each coops APP will be different, the overall goal of reducing avian mortality is the same. The APP should be a “living document” that is modified over time to improve its effectiveness.
APP RESOURCES:
Avian Protection Plan TEMPLATE (Microsoft Word required to edit file)
Avian Power Line Interaction Committee ( APLIC): http://www.aplic.org/
From their website:
APLIC Mission Statement
The Avian Power Line Interaction Committee (APLIC) leads the electric utility industry in protecting avian resources while enhancing reliable energy delivery. We work in partnership with utilities, resources agencies and the public to:
- Develop and provide educational resources
- Identify and fund research
- Develop and provide cost-effective management options, and
- Serve as the focal point for avian interaction utility issues
APLIC RESOURCES: