Interim Management Guidance for Migratory Bird Conservation Policy on Wyoming BLM Administered Public Lands Including the Federal Mineral Estate

1610 (930) P
6500
October 31, 2012
EMS TRANSMISSION: 11/14/2012
Instruction Memorandum No. WY-2013-005
Expires: 9/30/14
To: District Managers and Deputy State Directors
From: State Director
Subject: Interim Management Guidance for Migratory Bird Conservation Policy on
Wyoming Bureau of Land Management (BLM) Administered Public Lands
Including the Federal Mineral Estate
This Instruction Memorandum (IM) provides guidance to Wyoming Bureau of Land
Management (BLM) Field Offices for meeting the purpose and intent of the Migratory Bird
Treaty Act (MBTA), Presidential Executive Order (EO) 13186 (attachment 1) and the recent
Memorandum of Understanding (MOU) between the U. S. Fish and Wildlife Service (USFWS)
and the BLM related to the conservation and strategic management of migratory birds on BLM
managed public lands and management of Federal mineral estate on split estate lands. The 2010
MOU (attachment 2) provides direction for BLM to develop an Implementation Strategy for
meeting the purpose and intent of both the MBTA and EO 13186. This strategy is currently
under development, but is not expected to be completed until later 2012 or 2013 and may not be
incorporated into BLM policy and guidance until sometime after that. Prior to MOU
development and signatures, interim guidance for how BLM should ensure compliance with
MBTA and EO 13186 was provided by BLM Washington Office (WO) IM-2008-50 (attachment
3). That IM has expired and, until the national strategic plan and guidance is finalized statewide
consistency in applying migratory bird conservation and protection measures into land use and
activity level planning and analysis is needed. Implementation of this Wyoming IM is intended
to ensure Field Offices are consistent in applying conservation and protection measures for BLM
authorized activities affecting migratory birds and their habitats.
Policy/Action:
This guidance is to be implemented in conjunction with existing program-specific policies, Best
Management Practices, and current Resource Management Plan (RMP) direction. For Wyoming
United States Department of the Interior
BUREAU OF LAND MANAGEMENT
Wyoming State Office
P.O. Box 1828
Cheyenne, Wyoming 82009-1828
IN REPLY REFER TO:
2
Field Offices where RMPs have been recently revised and conservation and protection measures
for migratory birds were addressed in those plans, the RMPs will provide direction for BLM
activities and actions. RMP direction is to fulfill the purpose and intent of the MBTA and EO
13186, and will be the primary Field Office guide for addressing migratory bird issues or
concerns. For Field Offices with existing RMPs that do not contain current and specific
conservation and protection measures, activity level planning will need to ensure that migratory
birds are addressed in the National Environmental Policy Act (NEPA) analysis process and
appropriate protection and conservation measures are considered to comply with MBTA and
BLM national policies.
For activities or actions where possible affects to migratory birds or their habitats are identified
or when adverse impacts will or are likely to occur, then mitigation or conservation and
protection measures shall be included in NEPA alternatives. This NEPA analysis
consideration is directed by EO 13186, the recent Migratory Bird MOU with USFWS, and the
expired WO IM-2008-050 (see attachments). RMPs that do not contain migratory bird
discussion with associated goals or objectives for management of migratory birds and habitats
should be revised, amended, or maintained to insure that management guidance has been
addressed. That direction was provided in the BLM WO IM 2008-050.
Measures that are more restrictive or that would constrain activities more than land use planning
decisions should be reviewed for RMP conformance and should be modified to be compliant
with RMP direction if possible. If RMP decisions do not provide adequate direction, measures
necessary to ensure compliance with the MBTA and EO 13186 shall be applied but should be the
least restrictive needed to ensure compliance with Federal law. Design features, applicant
committed BMPs and conservation actions should be considered before mandatory Conditions of
Approval (COAs), or stipulations are applied. Such measures can provide protection required by
MBTA and also encourage conservation actions to be included in activities that might otherwise
adversely impact habitats. In many cases protective stipulations or COAs being applied for other
species will also provide migratory bird protections. Special Status Species (see BLM manual
6840) which would include Migratory Birds of Conservation Concern listed by USFWS and
BLM sensitive species birds, can be identified for particular conservation or protection measures
during NEPA analysis for any BLM activities or actions. For permitted activities, if voluntary or
applicant committed measures are not adequate to insure that known risks can be mitigated or
minimized and MBTA violations are likely to occur, then BLM shall apply stipulations or
conditions of approval that would ensure that actions are in compliance with MBTA, EO 13186,
and the MOU between BLM and USFWS.
Since 2008, a Conditional Surface Use stipulation for all special status species has been applied
to all oil and gas leases. This stipulation provides BLM the ability to apply conservation and
protection measures to lease development activities that are necessary to minimize adverse
impacts to migratory bird special status species that could contribute toward a need for listing for
any of these species. Also, Federal oil and gas lease operations are subject to surface use rights
described in 43 CFR 3101.1-2 which provides that “(a) lessee shall have the right to use so much
of the leased lands as is necessary, (to conduct lease operations), subject to: stipulations attached
to the lease: restrictions deriving from specific nondiscretionary statutes (such as MBTA); and
such reasonable measures as the BLM may require.”
3
In any case, Wyoming Field Offices are expected to review all actions and activities to ensure
these are conducted in a manner that complies with the MBTA, Department of the Interior (DOI)
regulations, and policies and to coordinate and communicate with the Wyoming U.S. Fish &
Wildlife Ecological Services office as needed to address compliance concerns. Coordination and
communication with USFWS should be conducted for large scale projects which include habitat
removal or disturbance, projects where “take” of migratory birds may occur, or in cases where
potential impacts are uncertain but are likely to be adverse and conservation/mitigation measures
cannot be readily identified. Examples would include oil and gas activities at field or multi-well
unit development levels, any large (> 20 acres) surface mining operations, large transmission or
wind projects, and disturbance activities in migratory bird habitats (forest, shrub, weed, or insect
treatments or prescribed burns) that could impact the habitat. Field Offices may find it helpful to
prepare a list of migratory birds that occur in their administrative area or a list of all Migratory
Bird Species of Conservation Concern. This list would include T&E listed or Candidate species
and BLM special status species that should be addressed in any activity level NEPA analysis.
Timeframe: Effective immediately.
Budget Impact: There may be some effect on the budget by requiring additional work on
NEPA analysis, but this would not be expected to have any significant increases in work
requirements.
Background: The Migratory Bird Treaty Act is a Federal law that has been in effect since first
signed in 1918 and remains valid along with subsequent modifications today. This act
specifically prohibits the “Take” of migratory birds through individual or agency actions.
“Take” under the MBTA includes “to pursue, hunt, shoot, wound, kill, trap, capture, or collect,
or attempt to pursue, hunt, shoot, wound, kill, trap, capture or collect a migratory bird” (50 CFR
10.12). This act applies to the DOI agencies including BLM. As an agency, BLM can be
prosecuted and fined for violations of the provisions of MBTA as a result of agency actions and
indirectly can be cited for agency authorized actions which violate MBTA when BLM
knowingly authorizes actions without identifying and taking steps to prevent violations of the
MBTA. Violations occur when actions result in a take regardless of whether the take was
intentional or unintentional. The MBTA as amended does allow for take when special permits
are obtained from the USFWS. Those permits are issued when unavoidable take is likely to
occur from specific actions outlined in the permit. Because take permits involve a lengthy
application process and are limited in scope to actions where alternatives to take are not feasible
or reasonable, BLM does not plan activities with expectations of obtaining any special take
permits for migratory birds. BLM agency activities should always be planned to avoid any take
of migratory birds to ensure compliance with the MBTA.
Presidential EO 13186 was signed by then President Clinton in 2001, and directs all Federal
agencies to ensure that agency actions and authorized actions are in compliance with the MBTA,
include adequate protection measures to support the intent of the MBTA, and to conserve
migratory bird populations and their habitats. This EO also directs agencies to develop and
implement MOUs with the USFWS that promote conservation of migratory birds and ensure that
any agency activities avoid or minimize adverse impacts to migratory birds and associated
habitats. The BLM has developed an MOU with USFWS that was signed in April 2010. EO
4
13186 and the accompanying MOU provide specific responsibilities and commitments that BLM
is obligated to follow. See attached copies of both EO 13186 and the BLM-USFWS MOU for an
understanding of those responsibilities and commitments.
Because Wyoming has a wide variety of migratory bird species, and many of which occur on
public lands and include species of conservation concern, most surface disturbing activities are
likely to have some impact to migratory birds or their habitats. Direct impacts to migratory bird
species or their nests/eggs/young can often be avoided by requiring pre-disturbance clearance
surveys or using seasonal timing windows and nesting buffers to avoid disturbance during
occupancy periods and minimizing habitat loss. Pre-disturbance clearances should be conducted
within 7 days prior to the disturbances in order to detect any newly arriving nesting birds.
Delays would require new clearance surveys. Seasonal timing limitations should be adjusted to
match the habitat types and species of concern for proposed activities and yearly climatic
variation that could change nesting periods. For Wyoming, the USFWS identifies migratory bird
nesting periods occur between February 1 and August 31 for species protected by MBTA.
However, unless a project proposal is very large and would potentially affect many habitat types
and a wide variety of bird species, seasonal timing limitations should be adjusted to shorter
periods to match the habitat, species and conditions of the project site. Migratory bird
mortalities can also be avoided by including or requiring designs that exclude migratory birds
from all facilities that are known to pose a preventable mortality risk (for example see
section 3(a) and 3(h) of WY IM No. 2012-007) and marking of structures that have known
collision risks.
Indirect affects to migratory birds and their habitats are more difficult to identify, but can be
significantly reduced or avoided by sound conservation practices such as: avoiding disturbance
in known high quality habitats (especially concentrated nesting areas); limiting disturbances to
minimum necessary; planning disturbances to avoid USFWS Species of Greatest Conservation
Need habitats or habitats that are unique, rare, or in limited supply; avoid new disturbances in
large intact un-fragmented habitat blocks; or planning activities seasonally to minimize
disturbance or disruption to nesting and breeding periods based on species potentially affected.
If active nests with eggs or young are located with a project disturbance area, disturbance
restrictive buffers around those nests should be implemented or projects should be delayed until
all young have fledged. Buffer distances for bird species should be developed in coordination
with USFWS. There are several publications which contain many conservation measures and
best management practices that can be used to avoid or minimize adverse impacts to migratory
birds and their habitats or promote beneficial actions. These should be considered during
activity level NEPA analyses if potential impacts are identified. A list of some of these
publications is attached (attachment 4).
Manual/Handbook Sections affected: none
Coordination: this IM was coordinated through Field Offices with comment period and through
WSO Minerals Division (WY-920) and Planning and Resources Policy Division (WY-930).
Comments and review were also coordinated with USFW Wyoming Ecological Services Office
and the Wyoming Game and Fish Department, Wildlife Division nongame wildlife section.
Signed by: Authenticated by
Donald A. Simpson Sherry Dixon
State Director Secretary
5
4 Attachments:
1 - Copy of Presidential Executive Order 13186 (4 pp)
2 - Copy 2010 BLM/USFWS MOU (13 pp)
3 - WO IM-2008-050 (4 pp)
4 - List of Migratory Bird Conservation Publications (1 p)
Distribution
Director (210), Room 1050, LS 1 (w/o atch.)
Director (230), Room 204, 2nd Floor 1 (w/o atch.)
FMs 1 (w/atch.)
CF 1 (w/atch.)