|Even the “everyday” American robin is protected under the Migratory Bird Treaty Act. Photo: Harry Cheung, PPD|
For most people, protecting wildlife means taking into account endangered-species lists published by federal and state wildlife agencies. Species on these lists are those whose very existence is threatened, usually due to human activities. These lists are relatively short, and they contain species that are, almost by definition, uncommon.
There are also laws intended specifically to protect bird species. Most of these laws were passed near the turn of the 20th century, when women’s hats were adorned with feathers and plumes taken from a variety of birds. The demand for plumes was so great that it put the existence of some species in jeopardy. The U.S. legislature passed the Migratory Bird Treaty Act of 1918 to protect birds from these activities.
MBTA applies to birds that migrate between countries by “normal ecological processes.” Over 1,000 species, including the ubiquitous American robin, are protected because conservation status doesn’t depend on the viability of the species. Because the law prohibits a broad range of activities, the interpretation of what constitutes a violation fluctuates. The broadest interpretation would make even unintentional and otherwise legal acts criminal if they result in taking birds. Thus, inadvertently affecting migratory birds during construction or other activities could have serious repercussions.
However, the courts have usually held to a narrower interpretation. In 2001, President Clinton signed Executive Order 13186, Responsibilities of Federal Agencies To Protect Migratory Birds, which clarified guidance for federal agencies on protecting migratory birds. It directs each agency to outline a plan to avoid harming migratory birds and to take proactive steps to conserve bird populations. A Department of Energy memorandum of understanding with the U.S. Fish and Wildlife Service was finalized in 2006 and provides a number of measures designed to “protect and conserve” migratory birds.
How does this affect Fermilab? The essence of the DOE plan in the MOU is that any actions undertaken by DOE should take steps to “protect, conserve and restore” migratory bird habitat to the fullest extent practicable and to review possible impacts of agency actions on migratory birds, avoiding them where practicable. That means we must evaluate these impacts in our normal course of conducting environmental reviews under NEPA and avoid or minimize impacts to even the most common birds as much as reasonable.