Migratory Bird Legislation and DoD
Executive Order MOU
On July 31, 2006, the Department of Defense (DoD) and the USFWS entered into a Memorandum of Understanding (MOU) to Promote the Conservation of Migratory Birds, in accordance with Executive Order 13186, "Responsibilities of Federal Agencies to Protect Migratory Birds." This MOU describes specific actions that should be taken by DoD to advance migratory bird conservation; avoid or minimize the take of migratory birds; and ensure DoD operations-other than military readiness activities-are consistent with the Migratory Bird Treaty Act. The MOU also describes how the FWS and DoD will work together cooperatively to achieve these ends. The MOU does not authorize the take of migratory birds; the FWS, however, may develop incidental take authorization for federal agencies that complete an Executive Order MOU. I strongly encourage all DoD personnel to work cooperatively with the FWS to implement the actions described in the MOU and to take steps to further migratory bird conservation. This MOU specifically pertains to the following categories of DoD activities:
- Natural resource management activities, including, but not limited to, habitat management, erosion control, forestry activities, agricultural outleasing, conservation law enforcement, invasive weed management, and prescribed burning;
- Installation support functions, including but not limited to, the maintenance, Construction or operation of administrative offices, military exchanges, road construction, commissaries, water treatment facilities, storage facilities, schools, housing, motor pools, non-tactical equipment, laundries, morale, welfare, and recreation activities, shops, landscaping, and mess halls;
- Operation of industrial activities;
- Construction or demolition of facilities relating to these routine operations; and
- Hazardous waste cleanup.
Take Authorization for Military Readiness Activities
("Migratory Bird Rule" or "Readiness Rule")
In July 2000, the United States Court of Appeals for the District of Columbia ruled that Federal agencies are subject to the take prohibitions of the Migratory Bird Treaty Act. In May 2002, the Center for Biological Diversity obtained an injunction prohibiting live fire military training exercises by the Department of the Navy that killed migratory birds on the island of Farallon de Medinilla in the Pacific Ocean. In December 2002, following a series of legal determinations on the case from the District Court for the District of Columbia and the Circuit Court, Congress authorized (in the FY2003 National Defense Authorization Act, Section 315) an interim period during which the prohibitions on incidental take of migratory birds would not apply to otherwise authorized military readiness activities. Congress believed the authorization to be an appropriate balance between the needs of national security and those of bird conservation.
The Final Rule was published in the Federal Register on February 28, 2007. The measure directs the Armed Forces to assess the effects of military readiness activities on migratory birds, in accordance with the National Environmental Policy Act. It also requires the Armed Forces to develop and implement appropriate conservation measures if a proposed action may have a significant adverse effect on a migratory bird population. The rule also provides that when conservation measures require monitoring of migratory bird populations, the Armed Forces retain the data for five years.
Guidance on implementing the Final Rule is under development.