On March 30, 2011, the Federal Energy Regulatory Commission (FERC) and the U.S. Fish & Wildlife Service (FWS) signed a Memorandum of Understanding on the Conservation of Migratory Birds (MOU). The MOU confirms that these agencies will carefully analyze FERC-regulated pipeline, transmission and other energy development projects that might impact migratory birds, and that they may require expensive mitigation where any such harm might arise. While FERC and FWS, in recent projects, have begun to require extensive analysis and mitigation to protect birds and their habitat under existing laws on an ad hoc basis, this MOU more formally establishes obligations on the agencies and project applicants that can have a significant impact on a project.
The MOU was drafted to implement Executive Order (EO) 13186, "Responsibilities of Federal Agencies to Protect Migratory Birds."1 Migratory birds — which include almost all native North American and some introduced species — are protected by the Migratory Bird Treaty Act (MBTA),2 which, among other things, makes it a crime to "take" migratory birds.3 In addition, some species are further protected by the Endangered Species Act (ESA) and the Bald and Golden Eagle Protection Act (BGEPA). The MOU focuses on avoiding or minimizing adverse impacts on migratory birds under these and other laws and does not waive any of the above laws or authorize the take of species.
Brief Background of the MBTA
The MBTA is a nearly 100-year old law, administered by the FWS, which prohibits the unlicensed "take" of migratory birds, including their parts, nests and eggs. Violations are based on strict liability and subject to criminal sanctions.4 While the law was initially passed to protect birds from unregulated hunting, particularly for the commercial trade, it has since been used to prosecute companies whose conduct has unintentionally and incidentally harmed birds, such as through the construction and operation of power lines, wind turbines and waste pits. Unlike the ESA and other similar laws, the MBTA does not provide permits for "incidental take," so theoretically, any activity that results in the incidental "take" of a migratory bird, however unintentional, may constitute a violation of the law.
Current Use of the MBTA
Recently, the FWS has begun to use the MBTA to place conditions on the development of large-scale projects that might impact migratory bird habitat.5 For example, the FWS, together with FERC, have used the MBTA, along with the ESA and other statutes, to impose significant conditions and mitigation requirements on multi-state natural gas pipeline projects. Such conditions include the development of "voluntary" migratory bird conservation plans which, among other things, restrict the timing and location of clearance and construction activities (e.g. to avoid nesting season). These conditions do not simply apply to the potential disturbance of species and their nests during nesting season, but also to the "fragmentation" of migratory bird habitat, i.e. where construction or other activities turns large blocks of contiguous forest into forest fragments, which can reduce the capacity of the forest to sustain certain species. In practice, FERC has ordered the development of such plans or guidelines to avoid and mitigate adverse impacts to birds in its certification of projects.6 In turn, these guidelines also may include payment of funds for conservation purposes keyed to the estimated value of the loss of species and habitat.7
Elements of the MOU
The stated purpose of the MOU is to focus on "avoiding or minimizing adverse impacts on migratory birds and strengthening migratory bird conservation through enhanced collaboration [between the agencies] by identifying areas of cooperation." MOU at 1. To this extent, it does not differ substantially from agreements that the FWS has reached with the Departments of Defense or Energy, the Forest Service or the former Minerals Management Service pursuant to EO 13186. Thus, the MOU details ways that the agencies can ensure that the "development of energy infrastructure is conducted in a manner protective of the natural environment," (MOU at 3), such as integrating bird conservation measures into agency actions, collaborating with each other and other agencies to identify measures to protect, restore and manage key habitats, and working with applicants for energy projects to develop studies, conduct research, exchange information and develop best management practices to avoid harm and enhance protection of migratory species. MOU at 3-4.
Under the Natural Gas Act, Federal Power Act and Energy Policy Act, FERC issues certificates of public convenience and necessity for interstate natural gas projects and associated facilities, licenses for non-federal hydroelectric power projects, and construction permits for certain electric transmission projects. In view of FERC's regulatory authority, the MOU establishes additional specific obligations on the agency. These include early coordination with FWS on potential impacts of proposed projects and the authority to require that applicants mitigate negative impacts on migratory birds and their habitats. Indeed, a number of MOU obligations focus on the applicants themselves rather than just the agencies. Thus, where appropriate, applicants are to "jointly develop project-specific conservation measures with the FWS during the pre-filing process and/or the initial planning of projects, to avoid or minimize, to the extent possible, impacts on migratory birds and their habitats, with emphasis on, but not exclusive to, species of concern..."8 MOU at 5. In addition, applicants should address impacts on migratory birds and their habitats in the scope of any review under the National Environmental Policy Act (NEPA), including direct, indirect and cumulative effects, reasonable modifications and alternatives, and conservation measures and best management practices to avoid or minimize take. MOU at 5-6. FERC is also to include terms and conditions in its certificates to avoid or minimize take and mitigate unavoidable take and adverse effects, with emphasis on species of concern and their habitats.
Notably, the MOU defines "mitigation" to include not only actions to avoid, minimize and rectify adverse impacts but also compensating for the impact by replacing or providing "substitute resources or environments." MOU at 9.
Impact on FERC-Regulated Projects
As noted above, the FWS and FERC have already begun to impose significant conditions for construction and mitigation of potential harm to migratory birds and their habitats in recent large-scale and multi-state pipeline projects. The issuance of this MOU would appear to make that practice the rule for the foreseeable future, spelling out specific requirements for FERC and applicants. Significantly, the agencies are looking beyond potential direct harm to species, e.g. destruction of nesting trees or actual birds, and requiring mitigation for adverse impacts on migratory bird habitat, particularly as a result of forest fragmentation. Moreover, applicants will likely be expected to negotiate detailed "voluntary" conservation plans and offer up "voluntary" contributions for unavoidable impacts, based on estimated replacement values for species and habitats — an exercise that itself can be relatively contentious. Aside from the costs involved, conditions imposed by the agencies can restrict when construction may occur, e.g. during nesting season, impacting completion of the project. Indeed, simply assessing potential impacts, negotiating conditions and mitigation, and complying with NEPA could result in substantial project delays.
Moreover, in view of the importance that the agencies have accorded this issue, failure to follow the certificate or agreed conditions could result in enforcement actions, at least where actual take of birds occurs, even if unintentional. At the same time, the visibility now given to this issue might cause environmental advocacy groups to challenge agency actions under the Administrative Procedures Act for permitting projects that might result in violations of the MBTA's take provisions.
It should be noted that while many jurisdictions afford condemnors some degree of pre-condemnation access to properties for survey and inspection-type purposes, such pre-condemnation access rights are almost universally restricted to non-invasive/ non-destructive activities. Accordingly, for any properties that must be acquired through eminent domain with potential MBTA issues, sufficient lead time must be budgeted into the applicable condemnation and construction schedules to secure through the judicial process the rights necessary to effectuate migratory bird mitigation plans requiring ground clearance or other destructive measures.
In sum, project developers will need to assess their projects carefully and analyze their potential to impact migratory birds and their habitats at the earliest stages of the project and anticipate the time and expense that will be require to work these matters out with FERC and the FWS. SNR Denton has the experience and ability to provide its clients with strategic counsel in this regard and to work with the relevant agencies through the NEPA and certification processes to reach a final agreement.9
Footnotes
1 FERC claims in the MOU that it is not an independent regulatory agency so it is not bound by the EO but will implement the provisions of the MOU in recognition of the benefits of interagency cooperation to protect migratory birds.
2 Birds protected by the MBTA are listed at 50 CFR § 10.13 and the FWS website.
3 "Take" means to pursue, hunt, shoot, wound, kill, trap, capture or collect (or attempt any of these). 50 CFR § 10.12. EO 13186 further defines "take" to include unintentional incidental take.
4 Violations of the take prohibition are treated as strict liability misdemeanors. In contrast, knowing take of a species for commercial purposes is a felony.
5 Although the MBTA does not itself prohibit "habitat modification" of migratory birds, that term is found in the EO. Thus, the FWS has interpreted the EO to expand its regulatory authority under the MBTA to address habitat modification that harms birds. Case-law, however, suggests that there may be limitations to this application, at least where no actual bird mortality results from the activity at issue.
6 See, e.g., ETC Tiger Pipeline, LLC, 131 FERC ¶ 61,010, Docket No. CP09-460-000 (April 7, 2010) at p. 42 (environmental condition 23); Rockies Express Pipeline LLC (Rex East), 123 FERC ¶ 61,234, Docket Nos. CP07-208-000, -001 (May 30, 2008) at p. 72 (environmental condition no. 83).
7 See, for example, Rex East, Guidelines for Achieving Compliance with the Migratory Bird Treaty Act and Executive Order No. 13186 Through Voluntary Conservation Measures, March 28, 2010 (establishing ratios to mitigate impacts on birds, forest loss and fragmentation and providing for $4.2 million in mitigation); Ruby Pipeline LLC's Voluntary Conservation Plan for Migratory Birds, June 14, 2010, at 5-6 and 10-11 (including payment of $2.8 million in escrow account to be used to conserve migratory bird habitat).
8 Species of Concern are those identified by the FWS, including it its publication Birds of Conservation Concern, www.fws.gov/migratorybirds, in its ESA regulations, or in other regulatory plans and lists. MOU at 10.
9 The operation of wind turbines may cause violations of the MBTA, ESA and BGEPA. At least one recent wind farm project (Xcel Energy's 150 MW project in North Dakota) was recently shelved allegedly due to concerns over impacts to birds. On February 8, 2011, FWS released draft land-based wind energy guidelines to help avoid and minimize impacts to migratory birds and other wildlife from wind energy projects. Available at the FWS website.
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