Incorporating Migratory & Resident Bird Concerns into the National Environmental Policy Act Process



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Incorporating Migratory & Resident Bird Concerns into the

National Environmental Policy Act Process

Region Six Forest Service & OR/WA Bureau of Land Management

August 11, 2016
This document was developed to assist biologists in the project planning process when avifauna is determined to be an issue that requires disclosure in a NEPA document. This is an avian planning “tool” that consolidates all the pertinent information into one place. The document begins with the authorities that should be included and provides the verbiage and species lists that can be cut and pasted into a specialist report, appendices or within the body of the analysis document. Its intention is to streamline the documentation process and provide a “template” of all the suggested materials to incorporate into an avian analysis document.
Objective:


  • Provide (Bureau of Land Management (BLM) - Oregon State Office and Forest Service (FS) - Region 6 Office) guidance for the consideration of avifauna in National Environmental Policy Act (NEPA) documents when the Responsible Official (in consultation with the biologist) has determined that avifauna are a significant issue.

  • Promote efficiencies and consistency within Oregon and Washington National Forests and BLM Districts in the analysis of avifauna in the NEPA process.


Forest Service and BLM Authorities Related to Bird Management:
The Migratory Bird Treaty Act of 1918 (MBTA).
Implements various treaties and conventions between the U.S., Canada, Japan, Mexico and the former Soviet Union for the protection of migratory birds. Under the act, it is unlawful to pursue, hunt, take, capture (or kill) a migratory bird except as permitted by regulation (16 U.S.C. 703-704). The regulations at 50 CFR 21.11 prohibit the take, possession, import, export, transport, sale, purchase, barter, or offering of these activities, or possessing migratory birds, including nests and eggs, except under a valid permit or as permitted in the implementing regulations (Director's Order No. 131). A migratory bird is any species or family of birds that live, reproduce or migrate within or across international borders at some point during their annual life cycle.
The U.S. Fish and Wildlife Service (FWS) is the lead federal agency for managing and conserving migratory birds in the United States; however, under Executive Order (EO) 13186 all other federal agencies are charged with the conservation and protection of migratory birds and the habitats on which they depend. In response to this order, the BLM and Forest Service have implemented management guidelines that direct migratory birds to be addressed in the NEPA process when actions have the potential to negatively or positively affect migratory bird species of concern.
Executive Order 13186 (66 Fed. Reg. 3853, January 17, 2001)

Responsibilities of Federal Agencies to Protect Migratory Birds”
This Executive Order directs federal agencies to avoid or minimize the negative impact of their actions on migratory birds, and to take active steps to protect birds and their habitat. The order required federal agencies to develop Memorandum of Understandings (MOU) with the FWS to conserve birds including taking steps to restore and enhance habitat, prevent or abate pollution affecting birds, and incorporate migratory bird conservation into agency planning processes whenever possible. The BLM and FS MOU’s with the FWS covered the period 2008-2013. Both agencies are currently operating under an extension of the original MOU until the revised MOU is finalized. The extension will cover the period until December 31, 2017.

BLM & FWS MOU,
The purpose of the MOU is, “to strengthen migratory bird conservation by identifying and implementing strategies that promote conservation and avoid or minimize adverse impacts on migratory birds through enhanced collaboration between the BLM and the Fish and Wildlife Service and in coordination with state, tribal, and local governments.”
Following are provisions of the MOU that relate specifically to planning and NEPA compliance.
Under the MOU the BLM Shall:

  • Maintain or update current policy guidance regarding management of migratory birds and their habitat pursuant to the MBTA and Executive Order 13186.

  • Address the conservation of migratory bird habitat and populations when developing, amending, or revising management plans for BLM lands, consistent with the Federal Land Policy and Management Act, Endangered Species Act, and other applicable law. When developing the list of species to be considered in the planning process, BLM will consult the current (updated every 5 years) FWS Species of Concern lists.

  • At the project level, evaluate the effects of the BLM’s actions on migratory birds during the NEPA process, if any, and identify where take reasonably attributable to agency actions may have a measurable negative effect on migratory bird populations, focusing first on species of concern, priority habitats, and key risk factors. In such situations, BLM will implement approaches lessening such take.

  • Work with Federal and non-Federal partners such as the Strategic Habitat Conservation partnership and Joint Ventures to integrate migratory bird and habitat conservation into BLM planning efforts.

  • Integrate migratory bird conservation measures, as applicable, into future Activity Management Planning (Grazing, Recreation, Cultural Resources, Wildlife, etc.), surface operating standards and guidelines for oil and gas exploration and development, and renewable (wind, solar, and geothermal) energy development NEPA mitigation. This will address habitat loss and minimize negative impacts.



Additional BLM Guidance
Instruction Memorandum 2008-050, Migratory Bird Treaty Act - Interim Management Guidance addresses BLM’s implementation of the Migratory Bird Treaty Act. The BLM Washington Office is currently developing an Instruction Memorandum that provides further guidance on the implementation of the BLM and U.S. Fish and Wildlife Service MOU.

Forest Service & FWS MOU:
The purpose of this MOU is, “to strengthen migratory bird conservation by identifying and implementing strategies that promote conservation and avoid or minimize adverse impacts on migratory birds through enhanced collaboration between the Parties, in coordination with State, Tribal, and local governments.”

Under the MOU the FS Shall:


Address the conservation of migratory bird habitat and populations when developing, amending, or revising management plans for national forests and grasslands, consistent with NFMA, ESA, and other authorities listed above. When developing the list of species to be considered in the planning process, consult the current (updated every 5 years) FWS Birds of Conservation Concern, 2008 (BCC), State lists, and comprehensive planning efforts for migratory birds. Within the NEPA process, evaluate the effects of agency actions on migratory birds, focusing first on species of management concern along with their priority habitats and key risk factors. To the extent practicable:


  1. Evaluate and balance long-term benefits of projects against any short- or long-term adverse effects when analyzing, disclosing, and mitigating the effects of actions.

  2. Pursue opportunities to restore or enhance the composition, structure, and juxtaposition of migratory bird habitats in the project area.

  3. Consider approaches, to the extent practicable, for identifying and minimizing take that is incidental to otherwise lawful activities, including such approaches as:

  1. altering the season of activities to minimize disturbances during the breeding season;

  2. retaining snags for nesting structures where snags are underrepresented;

  3. retaining the integrity of breeding sites, especially those with long histories of use and;

  4. giving due consideration to key wintering areas, migration routes, and stop-over habitats.

  5. minimizing or preventing the pollution or detrimental alteration of the environments utilized by migratory birds whenever practical by assessing information on environmental contaminants and other stressors relevant to migratory bird conservation.



PIF Bird Conservation Regions (BCR’S)

Bird Conservation Regions (BCRs) are ecologically distinct regions in North America with similar bird communities, habitats, and resource management issues. BCR’s are a hierarchical framework of nested ecological units delineated by the Commission for Environmental Cooperation (CEC). The BCR is approved by the North American Bird Conservation Initiative (NABCI) Committee.

The overall goal of these BCR lists are to accurately identify the migratory and resident bird species (beyond those already designated as federally threatened or endangered) that represent our highest conservation priorities.
BCR lists are updated every five years by the US Fish and Wildlife Service.www-nabci-us-org-images-bcr_map2-jpgpput the line together replace dash with periods and backslashes where appropriaate and link to the nabci webiste

The Birds of Conservation Concern 2008-
In December, 2008, the U.S. Fish and Wildlife Service released The Birds of Conservation Concern Report (BCC) which identifies species, subspecies, and populations of migratory and resident birds not already designated as federally threatened or endangered that represent highest conservation priorities and are in need of additional conservation actions.
While the bird species included in BCC 2008 are priorities for conservation action, this list makes no finding with regard to whether they warrant consideration for Endangered Species Act (ESA) listing. The goal is to prevent or remove the need for additional ESA bird listings by implementing proactive management and conservation actions. It is recommended that these lists be consulted in accordance with Executive Order 13186, “Responsibilities of Federal Agencies to Protect Migratory Birds.” In the BLM and FWS MOU, both parties shall: Work collaboratively to identify and address issues that affect species of concern, such as migratory bird species listed in the Birds of Conservation Concern (BCC) and FWS’s Focal Species initiative. (BLM and FWS MOU, 2012, Section VI, page 4).
This report should also be used to develop research, monitoring, and management initiatives. BCC 2008 is intended to stimulate coordinated and collaborative proactive conservation actions among Federal, State, Tribal, and private partners. The hope is that, by focusing attention on these highest-priority species, this report will promote greater study and protection of the habitats and ecological communities upon which these species depend, thereby contributing to healthy avian populations and communities.

BCR 5 (Northern Pacific Forest U.S. portions only).



Yellow-billed Loon (nb)

Western Grebe (nb)

Laysan Albatross (nb)

Black-footed Albatross (nb)

Pink-footed Shearwater (nb)

Red-faced Cormorant

Pelagic Cormorant (pelagicus ssp.)

Bald Eagle (b)

Northern Goshawk (laingi ssp.)

Peregrine Falcon (b)

Black Oystercatcher

Solitary Sandpiper (nb)

Lesser Yellowlegs (nb)

Whimbrel (nb)

Long-billed Curlew (nb)

Hudsonian Godwit (nb)

Marbled Godwit (nb)

Red Knot (roselaari ssp.) (nb)

Short-billed Dowitcher (nb)

Aleutian Tern

Caspian Tern

Arctic Tern

Marbled Murrelet (c)

Kittlitz's Murrelet (a)

Black Swift

Rufous Hummingbird

Allen's Hummingbird

Olive-sided Flycatcher

Willow Flycatcher (c)

Horned Lark (strigata ssp.) (a)

Oregon Vesper Sparrow (affinis ssp.)

Purple Finch



(a) ESA candidate, (b) ESA delisted, (c) non-listed subspecies or population of Tor E species, (d) MBTA protection uncertain or lacking, (nb) non-breeding in this BCR.



BCR 9 (Great Basin).


Greater Sage-Grouse (Columbia

Basin DPS) (a)

Eared Grebe (nb) Black Swift

Calliope Hummingbird

Lewis's Woodpecker

Williamson's Sapsucker

White-headed Woodpecker

Willow Flycatcher (c)

Loggerhead Shrike

Pinyon Jay

Sage Thrasher

Virginia's Warbler

Green-tailed Towhee

Brewer's Sparrow

Black-chinned Sparrow

Sage Sparrow

Tricolored Blackbird

Black Rosy-Finch

Bald Eagle (b)

Ferruginous Hawk

Golden Eagle

Peregrine Falcon (b)

Yellow Rail

Snowy Plover (c)

Long-billed Curlew

Marbled Godwit (nb)

Yellow-billed Cuckoo (w. U.S. DPS)

Flammulated Owl




(a) ESA candidate, (b) ESA delisted, (c) non-listed subspecies or population of Tor E species, (d) MBTA protection uncertain or lacking, (nb) non-breeding in this BCR.



BCR 10 (Northern Rockies U.S. portion only).


Bald Eagle (b)

Swainson's Hawk

Ferruginous Hawk

Peregrine Falcon (b)

Upland Sandpiper

Long-billed Curlew

Yellow-billed Cuckoo (w. U.S. DPS) (a)

Flammulated Owl

Black Swift

Calliope Hummingbird

Lewis's Woodpecker

Williamson's Sapsucker

White-headed Woodpecker

Olive-sided Flycatcher

Willow Flycatcher (c)

Loggerhead Shrike

Sage Thrasher

Brewer's Sparrow

Sage Sparrow

McCown's Longspur

Black Rosy-Finch

Cassin's Finch




(a) ESA candidate, (b) ESA delisted, (c) non-listed subspecies or population of Tor E species, (d) MBTA protection uncertain or lacking, (nb) non-breeding in this BCR.



Avian Conservation Planning: (Migratory and Resident Birds):

Migratory birds are those that breed in the U.S. and winter south of the border in Central and South America. Many of our well known passerine songbirds, flycatchers, vireos, swallows, thrushes, warblers, and hummingbirds, fall in this category. Most others are included in the resident category. Birds are a vital element of every terrestrial habitat in North America. Conserving habitat for birds will therefore contribute to meeting the needs of other wildlife and entire ecosystems (Partners in Flight Continental Plan). Continent wide declines in population trends for many avian species has developed into an international concern and led to the creation of the North American Bird Conservation Initiative (NABCI). Under this initiative, plans have been developed for the conservation of waterbirds, shorebirds, seabirds and landbirds. The landbird initiative known as Partners-in-Flight (PIF) has developed a series of bird conservation plans for every state. PIF has gained wide recognition as a leader in the landbird conservation arena.


The Oregon and Washington Chapter of PIF was formed in 1992 and has since developed a series of publications aimed at assisting private, state, tribal and federal agencies in managing for landbird populations. The most recent and applicable publications for the two state area have been Conservation Plans for landbirds.

PIF Bird Conservation Plans:

Five conservation plans have been developed by PIF covering the various geographic regions found in Oregon and Washington. These documents have been prepared to stimulate and support a proactive approach to the conservation of landbirds throughout Oregon and Washington. They represent the collective efforts of multiple agencies and organizations within Oregon and Washington. Participants included biologists from federal and state agencies, industry, private consulting firms, environmental organizations, and academia in order to ensure a full range of ideas and practicalities were addressed by the plans.


Recommendations included in the documents are intended to inform planning efforts and actions of land managers, and stimulate monitoring and research to support landbird conservation. The recommendations are also expected to serve as a foundation for developing detailed conservation strategies at multiple geographic scales to ensure functional ecosystems with healthy populations of landbirds.
The plans can be found on the OR-WA PIF web site at www.orwapif.org

  • Conservation Strategy for Landbirds in the Columbia Plateau of Eastern Washington and Oregon

  • Conservation Strategy for Landbirds of the East-Slope of the Cascade Mountains in Washington and Oregon

  • Conservation Strategy for Landbirds in the Northern Rocky Mountains of Eastern Oregon and Washington

  • Conservation Strategy for Landbirds in Coniferous Forest of Western Oregon and Washington

  • Conservation Strategy for Landbirds in Lowlands and Valleys of Western Oregon and Washington, Version 2

The overall goal of PIF Bird Conservation Planning is to ensure long-term maintenance of healthy populations of native landbirds. These documents are intended to facilitate that goal by identifying conditions and habitat attributes important to the landbird community, describing the desired landscape based on habitat relationships of a select group of species, providing interim management targets (i.e., biological objectives) to achieve desired conditions, and recommending management actions (i.e., conservation options) that can be implemented by various entities at multiple scales to achieve the biological objectives.
Implementation of parts or all of the strategy should help prevent reactionary approaches typically needed to address listed species issues. When these ecosystem-driven conservation strategies are fully implemented at large geographic scales, the aggregated effect will be the creation of landscapes that should function to conserve landbird communities.
The strategy for achieving functioning ecosystems for landbirds is described through the habitat requirements of "focal species". By managing for a group of species representative of important components in a functioning coniferous forest ecosystem, many other species and elements of biodiversity also will be conserved. E.O. 13186 and the MOUs signed by the FS and BLM with the FWS require agencies to incorporate migratory bird conservation into agency planning processes whenever practicable. The PIF plans assist federal agencies in achieving this direction.

Migratory and Resident Bird Checklist to consider during NEPA Analysis


  1. Determine if effects to migratory and/or resident birds are a concern and if these effects will require detailed analysis in your NEPA process. If it is an issue requiring detailed analysis, evaluate the effects of the actions on birds. (Address the conservation of migratory bird habitat and populations when developing, amending, or revising management plans).


Preliminary issues are frequently identified during the development of the proposed action through internal and external scoping. Additionally, supplemental authorities that provide procedural or substantive responsibilities relevant to the NEPA process may help identify issues for analysis (BLM NEPA Handbook, H-1790-1, 2008, page 41). The Migratory Bird Treaty Act of 1918 is listed in Appendix 1 of BLM’s NEPA handbook as a supplemental authority that may apply to BLM actions. (BLM NEPA Handbook, H-1790-1, 2008, page 41)


  1. Refer to the appropriate Partners-in-Flight (PIF) plan for the geographic region of the project and the U.S. Fish and Wildlife’s 2008 Birds of Conservation Concern (BCC) 2008 species list to help you determine which birds are to be addressed in your NEPA analysis. The PIF plan and the BCC species list will help identify species and habitat associations found in your project area. Consider the PIF Plan and MOU recommendations when crafting your alternatives to address or alleviate disturbances to birds and their habitat. Examples include:




  • Avoid raptor nests during motorcycle races.

  • Prevent bird entry into heater vents at oil and gas production facilities.

  • Avoid areas of raptor concentration when placing wind turbines.

  • Avoid nesting season during rangeland improvements, such as prescribed fire.

  • Manage livestock to avoid impacts on nesting birds and to improve bird habitat.

  • Alter the season of some recreational activities and events to minimize disturbance of bird breeding activities.

  • Modify wild horse and burro gathering activities to minimize disturbance of birds during the breeding season.

  • Retain snags for nesting structures where snags are underrepresented.

  • Minimize collisions with fences and meteorological towers on public lands through construction and marking stipulations.

  • Retaining the integrity of breeding sites, especially those with long histories of use.

  • Give due consideration to key wintering areas, migration routes, and stop-over habitats.

  • Minimize or preventing the pollution or detrimental alteration of the environments utilized by migratory birds whenever practical by accessing information on environmental contaminants and other stressors relevant to migratory bird conservation.




  1. If birds are an issue for detailed analysis: discuss how the alternatives will increase or decrease habitat for Birds of Conservation Concern (BCC) in the short and long term.




  1. Include BLM Game Birds Below Desired Condition (GBBDC). This list represents species whose populations are below long-term averages or management goals, or for which there is evidence of declining population trends. This draft is a working document and may be periodically updated based upon review of status and trend data. To review this list go to, http://www.blm.gov/pgdata/etc/medialib/blm/wo/Information_Resources_Management/policy/im_attachments/2008.Par.38405.File.dat/IM2008-050_att3.pdf


Ideas for incorporating the above information into your document



  • Introductory verbiage:

The appropriate state Bird Conservation Plan and USFWS, Birds of Conservation Concern species list for the project area was reviewed. Those species and habitats that are within the project area are incorporated and effects disclosed in this analysis. Table XX displays a list of Birds of Conservation Concern (BCC) and Game Birds below Desired Condition (GBBDC) in the (Area Name) that are known or likely to be present in the Planning Area and could be affected by the proposed actions.



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