Federal Laws Applicable to Projects

There are several Federal laws that need to be considered for all projects:

• Clean Water Act

• Endangered Species Act

• Migratory Bird Treaty Act

• Bald and Golden Eagle Protection Act

• Native American Graves Protection and Repatriation Act

For projects on Federal lands or that receive Federal funding, the National Environmental Policy Act also applies.  More regional policies and regulations may apply to particular project areas.  The project leader should be aware of local requirements. 

Clean Water Act.  The Clean Water Act requires a 404 permit for management activities that take place within a stream bed at or below the normal high water mark.  Therefore, some projects, especially projects to eliminate woody-invasives that have infested the stream channel, itself, will require a permit from the U. S. Army Corps of Engineers. 

Soils that erode into a stream are considered pollution by the Clean Water Act because sedimentation has many adverse effects on the stream ecosystem, including turbidity, lower light penetration, reduced primary production, and reduced benthic communities.  All efforts must be made to ensure that erosion into the stream will not occur with projects.  If initial assessment of the physical integrity of the stream suggests that removal of woody plants will result in erosion, plans must be made to prevent the erosion, and the project leader should consult with the U. S. Army Corps of Engineers.

Migratory Bird Treaty Act.  The Migratory Bird Treaty Act (MBTA) prohibits the taking or killing of migratory birds, their parts (including feathers), eggs, and nests.  Therefore, projects that involve cutting or removing trees or shrubs during the avian breeding season (1 May through 15 August) technically require avoiding individual trees, shrubs, and ground that have active nests.  An incidental take permit can be applied for from the U. S. Fish and Wildlife, but if possible, the breeding season should be avoided.  Questions about MBTA and permits should be directed to the U. S. Fish and Wildlife Service.

Endangered Species Act.  Some projects may be affected by the Endangered Species Act, which requires critical habitat for endangered species to be preserved.  It is even possible that some projects will have to be put off indefinitely if endangered species would be negatively affected. 

The most likely endangered species to be affected by projects is the southwest willow flycatcher (Empidonax trailii extimus), which prefers native willows for nesting but will sometimes use tamarisk or Russian olive.   However, there are several endangered fish that could be affected by a project if the project results in changes to the stream channel.  These include Colorado Pikeminnow (Ptychocheilus lucius), and razorback sucker (Xyrauchen texanus).

The first step in determining whether willow flycatchers may be affected by the proposed project is to identify if the habitat is suitable.  Even if the proposed project area is a monoculture of tamarisk, it is considered to be suitable habitat for southwest willow flycatchers by the U. S. Fish and Wildlife Service if the proposed project is greater than ¼ acre, dense (greater than 60% canopy), and tree height over five feet.  If these conditions exist, surveys will have to be conducted, and consultation with the U. S. Fish and Wildlife Service will be required.  There are no incidental take permits allowed for endangered species; however, a Special Purpose permit could be applied for through the U. S. Fish and Wildlife Service.

Bald and Golden Eagle Protection Act.  The Bald and Golden Eagle Protection Act prohibits disturbing eagles to the extent that it "…interferes with or interrupts normal breeding, feeding, or sheltering habits, causing injury, death, or nest abandonment.”  To be in compliance with this law, avoid disturbing activities within 400 meters of an active eagle nest or roosting eagle.  Bald and golden eagles nest from February through mid-August. 

Native American Graves and Repatriation Act.  The Native American Graves and Repatriation Act provides a mechanism for Federal agencies to return certain Native American cultural items (e.g., human remains, funerary objects, sacred objects, and objects of cultural patrimony) to native tribes. For any Federal project that will result in ground disturbance, archeological evaluations must be done.