7 CRUCIAL QUESTIONS TO KNOW IF YOU’RE LIABLE FOR AVIAN NEST SURVEYS

05/17/2021 - Blog / Thought Leadership

 

Birds nesting on existing structures and at proposed facility locations can pose a liability for carriers and tower companies. With most active nests protected under federal and state regulations, avian nest surveys are a critical tool for ensuring adherence to these regulations, such as the Migratory Bird Treaty Act (MBTA) and the Endangered Species Act (ESA). EBI Consulting’s NEPA Technical Director Chris Baird and Senior Biologist Jason Stayer help answer the 7 crucial questions you should be asking about how EBI’s Avian Nest Surveys can help you.

Q: What are avian nest surveys and why are they relevant?

EBI’s team of qualified professionals survey existing wireless facilities or proposed facility locations for active nests – defined as nests containing eggs, chicks, or juveniles. The majority of these nests are protected by the MBTA and may have other federal or state protections against damaging or disturbing the nest.

“The vast majority of the requests we receive for this service are because a nest has been spotted on a tower,” Chris Baird said. “However, an unlawful disturbance to an active nest could occur even if the nest is simply close to where work is being done, such as an adjacent wooded area.”

If you see a nest on existing infrastructure or within your proposed project footprint, that should automatically trigger a call for a nest survey to ensure you’re in compliance with federal and state regulations.

Q: How do I know if I’m disturbing a nest?

Disturbing a nest is not just coming into contact with, moving, taking from, damaging or destroying a nest. It can also encompass any activities that disrupt the nesting behavior.

“Making loud noises, bringing a dog on site, or even just being too close to an active nest, are examples of disturbances which may affect the natural nesting behaviors of birds and potentially lead to a failed nest, which would be a violation of the MBTA,” Jason Stayer said.

Q: What types of birds trigger these services?

The majority of bird species are covered by the MBTA, which includes all migratory birds and all native species of North America. In total, more than 1,000 species are protected by this Act. It is also important to note that many species protected by the MBTA, are also protected under the ESA. Further, Bald and Golden Eagles have additional protections under the Bald and Golden Eagle Protection Act (BGEPA).

Q: What happens if I violate the MBTA or other nesting protections?

You could face fines or in some cases even imprisonment. A single violation of the MBTA could result in up to a $15,000 fine and/or up to 6 months imprisonment. Violations of the ESA and BGEPA could result in even steeper penalties, up to $100,000 and/or 1-year imprisonment for a single offense. While the MBTA is a federal regulation and applies nationwide, state regulations vary and could result in additional penalties.

With fines applicable for each instance of a violation, having multiple birds and eggs in a nest could quickly rack up the number of instance violations, and the total cost. Even being in possession of a Bald Eagle feather that was taken from a nest is an example of a violation.

“Intentional and repetitive offenses would also likely be subject to harsher enforcement actions by regulatory authorities,” Jason warned. “Therefore, having a demonstrated history of good stewardship and proactive policies should be the objective of all our clients.”

Q: What services are included with this?

When a client spots a nest, ceases work, and contacts EBI Consulting, we visit a site to monitor the nest from the ground level and determine if it’s active and if the species is protected by the MBTA, ESA, and/or BGEPA.

“We’ll spend enough time there to determine if the nest is active, identify the species, estimate the duration of the nest activity, and how work can best commence from there,” Jason said.

Sometimes this can be determined quickly, but other instances may require observing for several hours or follow-up visits to make our determination.

“We don’t assume a nest is inactive simply because there may be no activity immediately observed,” Chris said. “Likewise, just because there are birds perched on a tower doesn’t mean a nearby nest is active. Our biologists have the experience to evaluate the conditions and determine the appropriate length of time for a survey.”

If a nest is active and protected under the MBTA, EBI’s expert team will produce a survey report detailing the methodology, species observed, any nesting activity, and determine the best possible next steps for our clients. Work must cease on projects until the nesting activity is done, and our biologists will provide a date for work to proceed or to conduct follow-up surveys to clear work to begin again.

Q: When should I worry about this?

To be safe, year-round. Most avian nesting activity occurs from mid-February through September, but can vary dependent upon numerous factors, including the species of bird, geographic location, migration patterns, temperatures, and precipitation.

“While mid-February through September has been the traditional nesting season, EBI has observed more and more outliers in recent years that fall outside of this time frame,” Chris said.

Q: Who should worry about this?

Nesting activity is a big concern for telecom carriers and tower companies, as birds frequently nest on towers and associated equipment. However, Chris notes that “anyone, including third-party contractors, doing work on or around telecom facilities should be mindful about the potential for their activities to disturb nests that might result in violations to these important regulations.”

For those in the Telecommunications industry, EBI Consulting’s Avian Nest Surveys can provide risk mitigation, as well as a clear path forward without incurring violations. For more information on how EBI can help you, reach out to speak with one of our experts.

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