By the authority vested in me as President by the Constitution and
the laws of the United States of America, and in furtherance of the
purposes of the migratory bird conventions, the Migratory Bird Treaty
Act (16 U.S.C. 703-711), the Bald and Golden Eagle Protection Acts (16
U.S.C. 668-668d), the Fish and Wildlife Coordination Act (16 U.S.C.
661-666c), the Endangered Species Act of 1973 (16 U.S.C. 1531-1544),
the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347),
and other pertinent statutes, it is hereby ordered as follows:
Section 1. Policy. Migratory birds are of great ecological
and economic value to this country and to other countries. They contribute
to biological diversity and bring tremendous enjoyment to millions of
Americans who study, watch, feed, or hunt these birds throughout the
United States and other countries. The United States has recognized
the critical importance of this shared resource by ratifying international,
bilateral conventions for the conservation of migratory birds. Such
conventions include the Convention for the Protection of Migratory Birds
with Great Britain on behalf of Canada 1916, the Convention for the
Protection of Migratory Birds and Game Mammals-Mexico 1936, the Convention
for the Protection of Birds and Their Environment- Japan 1972, and the
Convention for the Conservation of Migratory Birds and Their Environment-Union
of Soviet Socialist Republics 1978.
These migratory bird conventions impose substantive obligations on
the United States for the conservation of migratory birds and their
habitats, and through the Migratory Bird Treaty Act (Act), the United
States has implemented these migratory bird conventions with respect
to the United States. This Executive Order directs executive departments
and agencies to take certain actions to further implement the Act.
Sec. 2. Definitions. For purposes of this order:
(a) "Take" means take as defined in 50 C.F.R. 10,12, and includes
both "intentional" and "unintentional" take.
(b) "Intentional take" means take that is the purpose of the
activity in question.
(c) "Unintentional take" means take that results from, but
is not the purpose of, the activity in question.
(d) "Migratory bird" means any bird listed in 50 C.F.R. 10.13.
(e) "Migratory bird resources" means migratory birds and the
habitats upon which they depend.
(f) "Migratory bird convention" means, collectively, the bilateral
conventions (with Great Britain/Canada, Mexico, Japan, and Russia) for
the conservation of migratory bird resources.
(g) "Federal agency" means an executive department or agency,
but does not include independent establishments as defined by 5 U.S.C.
(h) "Action" means a program, activity, project, official
policy (such as a rule or regulation), or formal plan directly carried
out by a Federal agency. Each Federal agency will further define what
the term "action" means with respect to its own authorities
and what programs should be included in the agency-specific Memoranda
of Understanding required by this order. Actions delegated to or assumed
by nonfederal entities, or carried out by nonfederal entities with Federal
assistance, are not subject to this order. Such actions, however, continue
to be subject to the Migratory Bird Treaty Act.
(i) "Species of concern" refers to those species listed in
the periodic report "Migratory Nongame Birds of Management Concern
in the United States," priority migratory bird species as documented
by established plans (such as Bird Conservation Regions in the North
American Bird Conservation Initiative or Partners in Flight physiographic
areas), and those species listed in 50 C.F.R. 17.11.
Sec. 3. Federal Agency Responsibilities. (a) Each Federal
agency taking actions that have, or are likely to have, a measurable
negative effect on migratory bird populations is directed to develop
and implement, within 2 years, a Memorandum of Understanding (MOU) with
the Fish and Wildlife Service (Service) that shall promote the conservation
of migratory bird populations.
(b) In coordination with affected Federal agencies, the Service shall
develop a schedule for completion of the MOUs within 180 days of the
date of this order. The schedule shall give priority to completing the
MOUs with agencies having the most substantive impacts on migratory
(c) Each MOU shall establish protocols for implementation of the MOU
and for reporting accomplishments. These protocols may be incorporated
into existing actions; however, the MOU shall recognize that the agency
may not be able to implement some elements of the MOU until such time
as the agency has successfully included them in each agency's formal
planning processes (such as revision of agency land management plans,
land use compatibility guidelines, integrated resource management plans,
and fishery management plans), including public participation and NEPA
analysis, as appropriate. This order and the MOUs to be developed by
the agencies are intended to be implemented when new actions or renewal
of contracts, permits, delegations, or other third party agreements
are initiated as well as during the initiation of new, or revisions
to, land management plans.
(d) Each MOU shall include an elevation process to resolve any dispute
between the signatory agencies regarding a particular practice or activity.
(e) Pursuant to its MOU, each agency shall, to the extent permitted
by law and subject to the availability of appropriations and within
Administration budgetary limits, and in harmony with agency missions:
(1) support the conservation intent of the migratory bird conventions
by integrating bird conservation principles, measures, and practices
into agency activities and by avoiding or minimizing, to the extent
practicable, adverse impacts on migratory bird resources when conducting
(2) restore and enhance the habitat of migratory birds, as practicable;
(3) prevent or abate the pollution or detrimental alteration of the
environment for the benefit of migratory birds, as practicable;
(4) design migratory bird habitat and population conservation principles,
measures, and practices, into agency plans and planning processes (natural
resource, land management, and environmental quality planning, including,
but not limited to, forest and rangeland planning, coastal management
planning, watershed planning, etc.) as practicable, and coordinate with
other agencies and nonfederal partners in planning efforts;
(5) within established authorities and in conjunction with the adoption,
amendment, or revision of agency management plans and guidance, ensure
that- agency plans and actions promote programs and recommendations
of comprehensive migratory bird planning efforts such , as Partners-in-Flight,
U.S. National Shorebird Plan, North American Waterfowl Management Plan,
North American Colonial Waterbird Plan, and other planning efforts,
as well as guidance from other sources, including the Food and Agricultural
Organization's International Plan of Action for Reducing Incidental
Catch of Seabirds in Longline Fisheries;
(6) ensure that environmental analyses of Federal actions required by
the NEPA or other established environmental review processes evaluate
the effects of actions and agency plans on migratory birds, with emphasis
on species of concern;
(7) provide notice to the Service in advance of conducting an action
that is intended to take migratory birds, or annually report to the
Service on the number of individuals of each species of migratory birds
intentionally taken during the conduct of any agency action, including
but not limited to banding or marking, scientific collecting, taxidermy,
and depredation control;
(8) minimize the intentional take of species of concern by: (i) delineating
standards and procedures for such take; and (ii) developing procedures
for the review and evaluation of take actions. With respect to intentional
take, the MOU shall be consistent with the appropriate sections of 50
C.F.R. parts 10, 21, and 22;
(9) identify where unintentional take reasonably attributable to agency
Actions is having, or is likely to have, a measurable negative effect
on migratory bird populations, focusing first on species of concern,
priority habitats, and key risk factors. With respect to those actions
so identified, the agency shall develop and use principles, standards,
and practices that will lessen the amount of unintentional take, developing
any such conservation efforts in cooperation with the Service. These
principles, standards, and practices shall be regularly evaluated and
revised to ensure that they are effective in lessening the detrimental
effect of agency actions on migratory bird populations. The agency also
shall inventory and monitor bird habitat and populations within the
agency's capabilities and authorities to the extent feasible to facilitate
decisions about the need for, and effectiveness of, conservation efforts;
(10) within the scope of its statutorily-designated authorities, control
the import, export, and establishment in the wild of live exotic animals
and plants that may be harmful to migratory bird resources;
(11) promote research and information exchange related to the conservation
of migratory bird resources, including coordinated inventorying and
monitoring and the collection and assessment of information on environmental
contaminants and other physical or biological stressors having potential
relevance to migratory bird conservation. Where such information is
collected in the course of agency actions or supported through Federal
financial assistance, reasonable efforts shall be made to share such
information with the Service, the Biological Resources Division of the
U.S. Geological Survey, and other appropriate repositories of such data
(d.g, the Cornell Laboratory of Ornithology);
(12) provide training and information to appropriate employees on methods
and means of avoiding or minimizing the take of migratory birds and
conserving and restoring migratory bird habitat;
(13) promote migratory bird conservation in international activities
and with other countries and international partners, in consultation
with the Department of State, as appropriate or relevant to the agency's
(14) recognize and promote economic and recreational values of birds,
as appropriate; and
(15) develop partnerships with non-Federal entities to further bird
(f) Notwithstanding the requirement to finalize an MOU within 2 years,
each agency is encouraged to immediately begin implementing the conservation
measures set forth above in subparagraphs (1) through (15) of this section,
as appropriate and practicable.
(g) Each agency shall advise the public of the availability of its
MOU through a notice published in the Federal Register.
Sec. 4. Council for the Conservation of Migratory Birds.
(a) The Secretary of Interior shall establish an interagency Council
for the Conservation of Migratory Birds (Council) to oversee the implementation
of this order. The Council's duties shall include the following: (1)
sharing the latest resource information to assist in the conservation
and management of migratory birds; (2) developing an annual report of
accomplishments and recommendations related to this order; (3) fostering
partnerships to further the goals of this order; and (4) selecting an
annual recipient of a Presidential. Migratory Bird Federal Stewardship
Award for contributions to the protection of Migratory birds.
(b) The Council shall include representation, at the bureau director/administrator
level, from the Departments of the Interior, State, Commerce, Agriculture,
Transportation, Energy, Defense, and the Environmental Protection Agency
and from such other agencies as appropriate.
Sec. 5. Application and Judicial Review. (a) This order
and the MOU to be developed by the agencies do not require changes to
current contracts, permits, or other third party agreements.
(b) This order is intended only to improve the internal management of
the executive branch and does not create any right or benefit, substantive
or procedural, separately enforceable at law or equity by a party against
the United States, its agencies or instrumentalities, its officers or
employees, or any other person.
/s/William J. Clinton
THE WHITE HOUSE,
January 10, 2001.