The Endangered Species ACT (ESA), Migratory Bird Treaty ACT (Mbta), and Department of Defense (Dod) Readiness Activities: Background and Current Law

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, 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and those of the Coast Guard in the Department of Homeland Security from MBTA penalties, but this authorization can be withdrawn or suspended under certain circumstances.