	Introduction

This report provides a brief overview of how the Endangered Species Act (ESA) (1) and theMigratory Bird Treaty Act (MBTA) (2) and theirrelevant regulations may apply to military training andreadiness activities of the Department of Defense (DOD). Section ï¿½ 315 of that act directs that new MBTA regulations bedeveloped to exempt the Armed Forces for incidental taking of migratory birds during militaryreadiness activities. 1588 addressed designation of critical habitat under the ESA. 108-136 , the National DefenseAuthorization Act for Fiscal Year 2004. The new language that was ultimately enacted as P.L.108-136 precludes the designation of critical habitat on Department of Defense lands that are subjectto an integrated natural resources management plan under the Sikes Act, if the Secretary determinesin writing that the plan provides a benefit to the species for which critical habitat is proposed fordesignation. P.L.108-136 also requires that impacts on national security be considered when any critical habitat isdesignated. This report discussed the statutes and issues involved and the various proposals regarding the ESA and MBTA. It will be updated as circumstances warrant. The Migratory Bird Treaty Act

Application to Federal Activities. Section 311 would have amended ï¿½3 of the MBTA (which authorizes the Secretary of the Interior to promulgate regulations to implement the act), by adding a new subsection that defines"military readiness activity" and provides that "Section 2 shall not apply to the incidental taking ofa migratory bird by a member of the Armed Forces during a military readiness activity authorizedby the Secretary of Defense or the Secretary of the military department concerned." ESA Provisions. MBTA Provisions. During the interim period in which the Armed Forces are exempted from the prohibitions of the MBTA, the Secretary of Defense, in consultation with the Secretary of the Interior, is to identifymeasures to minimize and mitigate, to the extent practicable, any adverse impacts of authorizedmilitary readiness activities on affected species of migratory birds, and to monitor the impacts ofmilitary readiness activities on affected species. New regulations were proposed on June 2, 2004, (46) well after the deadline.
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 oflegislative 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 forthe incidental taking of migratory birds during military readiness activities. Until such regulationsare finalized, ï¿½ 315 provides that the prohibitions of the Migratory Bird Treaty Act do not apply tothe incidental taking of migratory birds by a member of the Armed Forces during military readinessactivities, but the Secretary of Defense, in consultation with the Secretary of the Interior, is tominimize and mitigate, to the extent practicable, adverse impacts of the readiness activities onaffected migratory birds. Proposed regulations were published on June 2, 2004 that would exemptDOD military readiness activities and those of the Coast Guard in the Department of HomelandSecurity from MBTA penalties, but this authorization can be withdrawn or suspended under certaincircumstances.
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 relevantimpacts." P.L. 108-136 , the National Defense Authorization Act for Fiscal Year 2004, precludesdesignation of critical habitat on DOD lands "subject to" an Integrated Natural ResourcesManagement Plan (INRMP) prepared under the Sikes Act if the Secretary determines in writing thatthe 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 isdesignated. Agency compliance with the consultation and prohibition sections of the ESA isretained.
This report provides background on the provisions and statutes involved and will be updated as circumstances warrant.