The MBTA specifically protects migratory birds and their nests from

Wyoming Ecological Services Field Office March 9, 2022

Protections for Raptors

Raptors, or birds of prey, and the majority of other birds in

the United States are protected by the Migratory

Bird Treaty Act, 16 U.S.C. 703 (MBTA). A complete list of migratory bird species can be found in the Code of

Federal Regulations at 50 CFR 10.13. Eagles are afforded additional protections under the Bald and Golden

Eagle Protection Act, 16 U.S.C. 668 (Eagle Act). In addition to the MBTA and the Eagle Act, the U.S. Fish

and Wildlife Service (Service) works with federal agencies to promote the conservation of migratory birds,

including eagles and other raptors, on lands under their jurisdiction through Executive Order 13186 (66 FR

3853; January 17, 2001).

The MBTA protects migratory birds, eggs and nests from possession, sale, purchase, barter, transport, import,

export, and take. The regulatory definition of take, defined in 50 CFR 10.12, means to pursue, hunt, shoot,

wound, kill, trap, capture, or collect, or attempt to hunt, shoot, wound, kill, trap, capture, or collect a migratory

bird. Activities that result in the intentional, unpermitted take of migratory birds or their eggs are illegal and

fully prosecutable under the MBTA. On October 4, 2021, effective December 3, the Service published a final

rule revoking the January 7, regulation that limited the scope of the MBTA. The Service is again implementing

the MBTA as prohibiting incidental take and applying enforcement discretion, consistent with judicial

precedent and long-standing agency practice prior to 2017. Removing or destroying active nests (i.e., nests that

contain eggs or young) or causing abandonment of an active nest with intent could constitute a violation of the

MBTA, the Eagle Act, or both statutes. Therefore, if nesting migratory birds are present on or near a project

area, project timing is an important consideration during project planning. For additional information

concerning nesting birds and protections under the MBTA, please see the Service’s Migratory Birds Program

page at https://www.fws.gov/program/migratory-birds. As discussed below, the Eagle Act provides additional

protections for bald and golden eagles and their nests.

The Service’s Wyoming Ecological Services Field Office works to raise public awareness about the possible

occurrence of birds in proposed project areas and the risk of killing or injuring birds or destroying active nests.

Our office provides recommendations to minimize the likelihood that injury or death will occur. We encourage

you to coordinate with our office before conducting actions that could lead to the death or injury of a migratory

bird, their young, eggs, or the abandonment or destruction of active nests (e.g., construction or other activity in

the vicinity of an active nest). If nest manipulation is proposed for a project in Wyoming, the project proponent

should contact the Service’s Migratory Bird Management Office in Lakewood, Colorado at 303-236-8171 to

see if a permit can be issued. Permits generally are not issued for an active nest of any migratory bird species,

unless removal of the nest is necessary to address human health and safety. If a permit cannot be issued, the

project may need to be modified to avoid impacting migratory birds, their young or eggs.

For infrastructure (or facilities) that have potential to cause direct avian mortality (e.g., wind turbines, guyed

towers, airports, wastewater disposal facilities, transmission lines), we recommend locating structures away

from high avian-use areas such as those used for nesting, foraging, roosting or migrating, and the movement

zones between high-use areas. If the wildlife survey data available for the proposed project area and vicinity do

not provide the detail needed to identify normal bird habitat use and movements, we recommend collecting that

information prior to determining locations for any infrastructure that may create an increased potential for avian

mortalities. Please contact the Service’s Wyoming Ecological Services Field Office for project-specific

recommendations.

Additional Protections for Eagles

The Eagle Act protections include provisions not included in the MBTA, such as the protection of unoccupied

nests and a prohibition on disturbing eagles. Specifically, the Eagle Act prohibits knowingly taking, or taking

with wanton disregard for the consequences of an activity, any bald or golden eagle or their body parts, nests,

chicks or eggs, which includes collection, possession, molestation, disturbance, destruction, or killing. The term

Wyoming Ecological Services Field Office March 9, 2022

“disturb” is defined as “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause,

based on the best scientific information available, (1) injury to an eagle, (2) a decrease in its productivity, by

substantially interfering with normal breeding, feeding, or sheltering behavior, or (3) nest abandonment, by

substantially interfering with normal breeding, feeding, or sheltering behavior” (50 CFR 22.3 and see also 72 FR

31132).

The Eagle Act includes limited exceptions to its prohibitions through a permitting process. The Service has

issued regulations concerning the permit procedures for exceptions to the Eagle Act’s prohibitions (81 FR 91494;

December 16, 2016), including permits to take golden eagle nests which interfere with resource development or

recovery operations (50 CFR 22.25). The regulations identify the conditions under which a permit may be issued

(i.e., status of eagles, need for action), application requirements, and other issues (e.g., mitigation, monitoring)

necessary in order for a permit to be issued.

In Wyoming we recommend a 1.0-mile buffer for bald eagles due to the sparse tree cover and the

limited number of bald eagles in the state. For additional recommendations specific to Bald Eagles

please see our national Eagle Management web page.

Recommended Steps for Addressing Raptors in Project Planning

Using the following steps in early project planning, agencies and proponents can more easily minimize impacts

to raptors, streamline planning and permitting processes, and incorporate measures into an adaptive

management program:

Coordinate with appropriate Service offices, Wyoming Game and Fish Department, tribal

governments, and land-management agencies at the earliest stage of project planning.

Identify species and distribution of raptors occurring within the project area by searching existing data

sources (e.g., Wyoming Game and Fish Department, Wyoming Natural Diversity Database, federal

land-management agencies) and by conducting on-site surveys.

Plan and schedule short-term and long-term project disturbances and human-related activities to avoid

raptor nesting and roosting areas, particularly during crucial breeding and wintering periods.

Determine location and distribution of important raptor habitat, nests, roost sites, migration zones and,

if feasible, available prey base in the project impact area.

Document the type, extent, timing, and duration of raptor activity in important use areas to establish a

baseline of raptor activity.

Ascertain the type, extent, timing, and duration of development or human activities proposed to occur,

and the extent to which this differs from baseline conditions.

Consider cumulative effects to raptors from proposed projects when added to past, present, and

reasonably foreseeable actions. Ensure that project mitigation adequately addresses cumulative effects

to raptors.

Minimize loss of raptor habitats and avoid long-term habitat degradation. Mitigate for unavoidable

losses of high-valued raptor habitats, including (but not limited to) nesting, roosting, migration, and

foraging areas.

Monitor and document the status of raptor populations and, if feasible, their prey base post-

project completion, and evaluate the success of mitigation efforts.

10.

Document meaningful data and evaluations in a format that can be readily shared and incorporated

into wildlife databases (contact the Service’s Wyoming Ecological Services Field Office for

details).

Wyoming Ecological Services Field Office March 9, 2022

Protection of nesting, wintering (including communal roost sites), and foraging activities is considered essential

to conserving raptors. To promote the conservation of migratory bird populations and their habitats, federal

agencies should implement those strategies directed by Executive Order 13186, “Responsibilities of Federal

Agencies to Protect Migratory Birds” (66 FR 3853).

Raptors of Conservation Concern

The Service’s Birds of Conservation Concern (2021) report identifies “species, subspecies, and populations of

all migratory nongame birds that, without additional conservation actions, are likely to become candidates for

listing” under the Endangered Species Act (16 U.S.C 1531 et seq.). This report is intended to encourage

coordinated and proactive conservation actions among federal, state, and private partners. The Wyoming

Partners in Flight Wyoming Bird Conservation Plan identifies priority bird species and habitats, and establishes

objectives for bird populations and habitats in Wyoming. This plan also recommends conservation actions to

accomplish the population and habitat objectives. We encourage project planners to develop and implement

protective measures for the Birds of Conservation Concern as well as other high-priority species identified in the

Wyoming Bird Conservation Plan.

Recommended Seasonal and Spatial Buffers to Protect Nesting Raptors

Because many raptors are particularly sensitive to disturbance during the breeding season, we recommend

implementing spatial and seasonal buffer zones to protect individual nest sites/territories (Table 1). The buffers

serve to minimize visual and auditory impacts associated with human activities near nest sites. Ideally, buffers

would be large enough to protect existing nest trees and provide for alternative or replacement nest trees. The

size and shape of effective buffers vary depending on the topography and other ecological characteristics

surrounding the nest site. In open areas where there is little or no forested or topographical separation, distance

alone must serve as the buffer. Adequate nesting buffers will help ensure activities do not result in the death of

breeding birds, their young or eggs. For optimal conservation benefit, we recommend no temporary or

permanent surface occupancy occur within species-specific spatial buffer zones. For some activities with very

substantial auditory impacts (e.g., seismic exploration and blasting) or visual impacts (e.g., tall drilling rig), a

larger buffer than listed in Table 1 may be necessary; please contact the Service’s Wyoming Ecological Services

Field Office for project-specific recommendations on adequate buffers.

As discussed above, for infrastructure that may create an increased potential for raptor mortalities, the spatial

buffers listed in Table 1 may not be sufficient to reduce the incidence of raptor mortalities (for example, if a

wind turbine is placed outside a nest disturbance buffer, but inadvertently still within areas of normal daily or

migratory bird movements); therefore, please contact the Service’s Wyoming Ecological Services Field Office

for project-specific recommendations on adequate buffers.

Buffer recommendations may be modified on a site-specific or project-specific basis based on field observations

and local conditions. The sensitivity of raptors to disturbance may depend on local topography, density of

vegetation, and intensity of activities. Additionally, individual birds may be habituated to varying levels of

disturbance and human-induced impacts. Modification of protective buffer recommendations may be considered

where biologically supported and developed in coordination with the Service’s Wyoming Ecological Services

Field Office.

Wyoming Ecological Services Field Office March 9, 2022

Because raptor nests are often initially not identified to species (e.g., preliminary aerial surveys in winter), we

first recommend a generic raptor nest seasonal buffer of January 15th to August 15th. Similarly, for spatial

nesting buffers, until the nesting species has been confirmed, we recommend applying a 1-mile spatial buffer

around the nest. Once the raptor species is confirmed, we then make species-specific and site-specific

recommendations on seasonal and spatial buffers (Table 1).

Activities should not occur within the spatial/seasonal buffer of any nest (occupied or unoccupied) when raptors

are in the process of courtship and nest site selection. To help conserve raptor populations, long-term land-use

activities and human-use activities should not occur within the species-specific spatial buffer of occupied nests.

Short-term land use and human-use activities proposed to occur within the spatial buffer of an occupied nest

should only proceed during the seasonal buffer after coordination with the Service, state, and tribal wildlife

resource management agencies, and/or land-management agency biologists. If, after coordination, it is

determined that due to human or environmental safety or otherwise unavoidable factors, activities require

temporary incursions within the spatial and seasonal buffers, those activities should be planned to minimize

impacts and monitored to determine whether impacts to birds occurred. Mitigation for habitat loss or

degradation should be identified and planned in coordination with applicable agencies.

Please contact the Service’s Wyoming Ecological Services Field Office if you have any questions regarding

permit requirements, or if you require technical assistance regarding the MBTA, Eagle Act, or the above

recommendations. The below spatial and seasonal buffers are voluntary (unless made a condition of permit or

license) and are not regulatory, and they do not supersede provisions of the MBTA, Eagle Act, the Destruction

and Relocation of Migratory Bird Nest Contents memorandum, dated June 14, 2018, and Endangered Species

Act. Assessing legal compliance with the MBTA or the Eagle Act and the implementing regulations is

ultimately the authority and responsibility of the Service’s law enforcement personnel. Our recommendations

also do not supersede federal, state, local, or tribal regulations or permit conditions that may be more restrictive.

Wyoming Ecological Services Field Office March 9, 2022

Additional Planning Resources

Avian Power Line Interaction Committee (APLIC). 2012. Reducing Avian Collisions with Power Lines: The

State of the Art in 2012. Edison Electric Institute and APLIC. Washington, D.C.

Avian Power Line Interaction Committee (APLIC). 2006. Suggested Practices for Avian Protection on Power

Lines: The State of the Art in 2006. Edison Electric Institute, APLIC, and the California Energy

Commission. Washington, D.C. and Sacramento, CA.

Edison Electric Institute’s Avian Power Line Interaction Committee and U.S. Fish and Wildlife Service. 2005.

Avian Protection Plan Guidelines.

Table 1. Service’s Wyoming Ecological Services Field Office’s Recommended Spatial and Seasonal

Buffers for Breeding Raptors

Raptors of Conservation Concern (see below for more information)

Common Name

Spatial buffer (miles)

Seasonal buffer

Golden Eagle

0.50

January 15 - July 31

Ferruginous Hawk

1.00

March 15 - July 31

Swainson's Hawk

0.25

April 1 - August 31

Bald Eagle

see Bald Eagle information web page

Prairie Falcon

0.50

March 1 - August 15

Peregrine Falcon

0.50

March 1 - August 15

Short-eared Owl

0.25

March15- August 1

Burrowing Owl

0.25

April 1 – September 15

Northern Goshawk

0.50

April 1 - August 15

Additional Wyoming Raptors

Common Name

Spatial buffer (miles)

Seasonal buffer

Osprey

0.25

April 1 - August 31

Cooper's Hawk

0.25

March 15 – August 31

Sharp-shinned Hawk

0.25

March 15 – August 31

Red-tailed Hawk

0.25

February 1 – August 15

Rough-legged Hawk (winter resident only)

----

Northern Harrier

0.25

April 1 - August 15

Merlin

0.50

April 1 - August 15

American Kestrel

0.125

April 1 – August 15

Common Barn Owl

0.125

February 1 – September 15

Northern Saw-whet Owl

0.25

March 1 - August 31

Boreal Owl

0.25

February 1 – July 31

Long-eared Owl

0.25

February 1 – August 15

Great Horned Owl

0.125

December 1 – September 30

Northern Pygmy-Owl

0.25

April 1 – August 1

Eastern Screech -owl

0.125

March 1 – August 15

Western Screech-owl

0.125

March 1 – August 15

Great Gray Owl

0.25

March 15 – August 31

https://www.fws.gov/species/bald-eagle-haliaeetus-leucocephalus

Wyoming Ecological Services Field Office March 9, 2022

U.S. Fish and Wildlife Service. 2020. Eagle Management. https://www.fws.gov/library/collections/bald-and-

golden-eagle-management

U.S. Fish and Wildlife Service. 2013. Eagle Conservation Plan Guidance Module 1 – Land-based Wind Energy

Version 2. Arlington, Virginia. 118 pp.

U.S. Fish and Wildlife Service. 2007. National Bald Eagle Management Guidelines. United States Department

of Interior, Fish and Wildlife Service, Arlington, Virginia. 23 pp.

U.S. Fish and Wildlife Service. 2000. Siting, Construction, Operation and Decommissioning of

Communications Towers and Tower Site Evaluation Form (Director’s Memorandum September 14,

2000), Arlington, Virginia.

References

50 CFR 10.12 – Code of Federal Regulations. Title 50--Wildlife and Fisheries, Chapter I--United States Fish

and Wildlife Service, Department of the Interior, Part 10--General Provisions.

50 CFR 10.13– Code of Federal Regulations. Title 50--Wildlife and Fisheries, Chapter I--United States Fish

and Wildlife Service, Department of the Interior, Part 10--General Provisions.

50 CFR 22.3 – Code of Federal Regulations. Title 50--Wildlife and Fisheries, Chapter I--United States Fish and

Wildlife Service, Department of the Interior, Part 22—Eagle Permits.

50 CFR 22.25– Code of Federal Regulations. Title 50--Wildlife and Fisheries, Chapter I--United States Fish

and Wildlife Service, Department of the Interior, Part 22—Eagle Permits.

66 FR 3853 - Presidential Documents. Executive Order 13186 of January 10, 2001. Responsibilities of Federal

Agencies To Protect Migratory Birds. Federal Register, January 17, 2001.

72 FR 31132 - Protection of Eagles; Definition of ‘‘Disturb’’. Final Rule. Federal Register, June 5, 2007.

74 FR 46836 - Eagle Permits; Take Necessary To Protect Interests in Particular Localities. Final Rule. Federal

81 FR 91494 - Eagle Permits; Revisions to Regulations for Eagle Incidental Take and Take of Eagle Nests. Final

Rule, Federal Register, December 16, 2016.

U.S. Fish and Wildlife Service. 2003. Migratory Bird Permit Memorandum, MBMP-2, Nest Destruction

(Directors Memorandum April 15, 2003), Washington, D.C.

U.S. Fish and Wildlife Service. 2008. Birds of Conservation Concern 2008. United States Department of

Interior, Fish and Wildlife Service, Division of Migratory Bird Management, Arlington, Virginia. 85 pp.