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The Endangered Species Act (ESA), Migratory Bird Treaty Act (MBTA), and Department of Defense (DOD) Readiness Activities: Background and Current Law

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The relationship of military readiness activities of the Department of Defense (DOD) to the Migratory Bird Treaty Act (MBTA) and to the Endangered Species Act (ESA) was the subject of legislative proposals in the 107th Congress and again in the 108th.

P.L. 107-314 was silent as to ESA issues, but does contain MBTA provisions. Section 315 of that act directs that regulations be developed to exempt the Armed Forces from MBTA penalties for the incidental taking of migratory birds during military readiness activities. Until such regulations are finalized, ยง 315 provides that the prohibitions of the Migratory Bird Treaty Act do not apply to the incidental taking of migratory birds by a member of the Armed Forces during military readiness activities, but the Secretary of Defense, in consultation with the Secretary of the Interior, is to minimize and mitigate, to the extent practicable, adverse impacts of the readiness activities on affected migratory birds. Proposed regulations were published on June 2, 2004 that would exempt DOD military readiness activities and those of the Coast Guard in the Department of Homeland Security from MBTA penalties, but this authorization can be withdrawn or suspended under certain circumstances.

Under the ESA, the Secretary of the Interior (and in some circumstances the Secretary of Commerce) can designate "critical habitat" after taking into account economic or "any relevant impacts." P.L. 108-136, the National Defense Authorization Act for Fiscal Year 2004, precludes designation of critical habitat on DOD lands "subject to" an Integrated Natural Resources Management Plan (INRMP) prepared under the Sikes Act if the Secretary determines in writing that the plan provides a benefit to the species for which critical habitat is proposed for designation. Also, consideration of impacts on national security must now be considered when critical habitat is designated. Agency compliance with the consultation and prohibition sections of the ESA is retained.

This report provides background on the provisions and statutes involved and will be updated as circumstances warrant.


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