Raptors and other migratory birds are protected by several Federal laws, including the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act, and the Endangered Species Act. The MBTA is a strict liability law which means that the U.S. Fish and Wildlife Service (USFWS) only has to show that the birds were killed by the activities of an individual or business. It does not require the USFWS to prove that there was intent to kill or take a bird, only that a bird was killed or taken. The only birds not protected by MBTA include the English sparrow, the starling and the pigeon. In order to further its goal of eliminating/minimizing bird mortality, the USFWS is promoting and developing a Memorandum of Understanding (MOU) that will partner the USFWS and utilities into protecting migratory birds.

The MOU is a pro-active approach to protect raptors and other migratory birds and eliminate/minimize unlawful deaths. It establishes a written policy for bird protection and procedures to follow by utility personnel. The MOU should eliminate enforcement actions against MOU signatories in the future for an unforeseeable take. An MOU usually has provisions for a system wide assessment, the establishment of an avian protection plan, procedures for reporting/retrieving dead and injured birds, procedures for nest removal from utility structures, and requirements for record keeping. The MOU should be signed by the utility, the USFWS, and the state fish and game department.

MOU’s are currently being developed in Colorado, Montana, North Dakota, Kansas, and New Mexico. In addition, several individual utilities around the country have been asked to sign an MOU. Xcel Energy was recently the first utility to sign an MOU with the USFWS. It is expected that the USFWS will pursue agreements with all utilities in the United States.

If you would like more information or have any questions, please contact Dennis Rankin, Environmental Protection Specialist, Engineering and Environmental Staff, at 202-720-1953 or at drankin@rus.usda.gov.