United States Department of the Interior U.S. FISH AND WILDLIFE SERVICE ...

United States Department of the Interior

U.S. FISH AND WILDLIFE SERVICE National Aviation Management 3833 South Development Ave Boise, ID 83705

July 7, 2021

MEMORANDUM

TO: FROM: SUBJECT:

Federal Aviation Administration, AFS 800

Anthony Lascano, National Aviation Manager, U.S. Fish and Wildlife Service

MANUEL LASCANO

Petition for Exemption: 14 CFR 91.119(b) and (c), US Fish and Wildlife Service, Aviation Operations

Digitally signed by MANUEL LASCANO Date: 2021.07.06 16:27:02 -06'00'

References FAA Order 8900.1 FAA Order 7210.3 FAR 91.119 Petition for Exemption (Appendix 1) Current Certificate of Waiver, 5/05/2020 (Appendix 2) FWS Operations Manual (Appendix 3)

Executive Summary

1. The U.S. Fish and Wildlife Service is requesting relief from 14 CFR 91.119(b) and (c). ? It is requested that this relief be in the form of an Exemption. ? It is requested that this exemption be valid for a period of at least five years.

2. US Fish and Wildlife Service (FWS) conducts operations for public health and benefit, and include but are not limited to: ? Wildlife surveys, ? Protection of National Wildlife Refugees, ? Public land easements, ? Law enforcement missions necessary to enforce mandated environmental laws and regulations.

? Ecological services to include marine mammal and threatened and endangered species monitoring,

? Wildlife population monitoring and resource protection missions to meet mandated management objectives within the National Wildlife Refuge System, and

? Natural and Environmental Disaster Response ? Disaster response and damage assessment following hurricanes, oil spills, and other natural and environmental disasters.

3. Monitoring data collected by the FWS is of great importance also to state conservation agencies as well as international partners, such as the Canadian Wildlife Service.

4. FWS utilizes aviation as an integral component in accomplishing its missions. ? Many FWS mandates require monitoring or surveillance over broad geographic regions and within restricted time windows as dictated by biological or phenological events. ? Monitoring occurs in many areas that are remote and inaccessible or would otherwise be dangerous or cost-prohibitive to access from the ground or water surface. Aviation provides the only practical means to acquire data required to meet legal and regulatory mandates. Flight are primarily conducted in remote areas with limited infringement on populated areas. ? Flights have been historically and currently conducted at altitudes as low as 150 ft AGL is often necessary to acquire data at required resolution (e.g., to identify birds to species level, assess productivity and nesting status). ? Low altitude flying is conducted primarily over coastal and inland waters, wildlife refuges and other remote areas, with limited infringement upon populated areas.

5. A primary operational constraint for FWS aviation missions is 14 CFR 91.119 (b) and (c).

6. FWS is currently conducting low altitude operations under Certificate of Waiver dated May 05, 2020, which expires on May 31, 2022 (see Appendix 2).

7. FWS is required by FAA to apply for Certificate of Waiver every 24 calendar months. This process places an administrative burden of both FAA and FWS. ? Administrative work hours applied toward application and review/issuance of the certificate of waiver can be better allocated on bureau priorities like flight safety and missions serving the national interest.

8. Desired outcomes of this request of this memorandum: a) FAA issues to FWS an exemption from 14 CFR 91.119 (b)and (c) allowing FWS to efficiently and effectively complete directed biological, enforcement, and disasterresponse aviation missions in the low altitude flight regime. b) Relief of administrative burden for both FAA and FWS. c) Continued enhancement of the cooperative working relationship between FAA and FWS. 2

d) Such an exemption would be issued and complied with while simultaneously maintaining the highest safety standards and concern for the well-being of the general public.

Background

FWS mission statement ? "The mission of the U.S. Fish and Wildlife Service is working with others to conserve, protect, and enhance fish, wildlife, plants, and their habitats for the continuing benefit of the American people."

FWS operations are directed by U.S. Congressional Law and are performed in the name of public health and benefit.

? Alaska National Interest Lands Conservation Act of 1980 (16 U.S.C. 410hh-3233) ? Bald and Golden Eagle Protection Act of 1940, as amended (16 U.S.C. 668-668d) ? Endangered Species Act of 1973, as amended (16 U.S.C. 1531-1544) ? Executive Order 13186: Responsibilities of Federal Agencies to Protect Migratory Birds, ? 2001 (66 FR 3853 [January 17, 2001]) ? Fish and Wildlife Act of 1956, as amended (16 U.S.C. 79la et seq.) ? Fish and Wildlife Conservation Act of 1980, as amended (16 U.S.C. 2901-2911) ? Fish and Wildlife Coordination Act of 1980, as amended (16 U.S.C. 661-667) ? Migratory Bird Conservation Act of 1929, as amended (16 U.S.C. 715 et seq.) ? Migratory Bird Treaty Act, of 1918, as amended (16 U.S.C. 703-712) ? National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) ? Sikes Improvement Act of 1997 (16 U.S.C. 670a-670o) ? Marine Mammal Protection Act of 1972, as amended (16 USC 1371-1389)

Below is are some examples of prominent survey work performed by FWS. Many of wildlife and habitat surveys conducted by the FWS have been conducted continuously for decades with the longest time-series for the Waterfowl Breeding Population and Habitat Survey extending to the 1950s and the Mid-winter Waterfowl Survey to the 1930s.

? Waterfowl Breeding Population and Habitat Survey ? A primary monitoring tool for North American waterfowl used to regulate hunting in a sustainable manner and for a host of other conservation applications.

? United States Bald Eagle Nest Survey ? The primary monitoring tool to track status and trend of bald eagles as well as to regulate permitted take of this species.

? West-wide Golden Eagle Survey - The primary monitoring tool to track status and trend of golden eagles as well as to regulate permitted take of this species.

? Mid-winter Waterfowl Survey ? A primary monitoring tool for a number of hunted waterfowl species that cannot be surveyed during the breeding season such as brant and tundra swans.

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? Sandhill and Whooping Crane Surveys ? Annual surveys of several sandhill crane populations provide data needed to regulate hunting, while annual surveys of the Federallyendangered whooping crane assist in population recovery.

? Colonial Waterbird Monitoring ? Surveys conducted across the contiguous US to monitor the population sizes and status of numerous colonial nesting water birds that are of management concern.

? Sea Duck and Seabird Surveys ? Conducted in near shore and offshore environments to assess population status and distribution for harvest management and to meet other regulatory needs of FWS and other Federal agencies.

FWS mission(s) National-level Importance

Economic Impact

National surveys conducted by the US Census Bureau and FWS show that, in 2016, over 103 million Americans at least 16 years of age participated annually in hunting, fishing, or some other form of wildlife-related recreation. These pursuits add $156.9 billion to the US economy annually. Hunting accounts for over $26 billion in economic activity annually, with migratory bird hunting representing about 10 percent of that total. Wildlife watching and photography account for almost $76 billion, with bird watching representing the most prevalent activity. In addition to the benefit to the American economy, millions of Americans annually derive great esthetic benefits from interactions with wildlife and natural systems. A primary mandate of Federal and state wildlife management agencies, like FWS, is to conserve wildlife populations for future generations of Americans and to manage consumptive uses, such as hunting, in a sustainable fashion based in sound scientific methods. Additionally, FWS Aviation missions is to preserve this significant economic benefit to the nation.

Migratory Bird Management

Monitoring of wildlife population abundance and trend, often via the necessity use of aircraft, is an important component of a modern, science-based approach to wildlife and habitat management. The Migratory Bird Treaty Act of 2018 (16 U.S.C. 703-712) authorizes the Secretary of the Interior open hunting seasons and allow other forms of permitted take of certain migratory bird species when that take is found to be consistent with the conservation provisions of the Act. The Final Supplemental Environmental Impact Statement on the Issuance of Annual Regulations Permitting the Hunting of Migratory Birds (2013) provides a detailed description of the scientific approach taken by the FWS and Flyway Councils to inform annual decisions on hunting regulations. Population monitoring through the use of aircraft plays a pivotal role in this process. Numerous annually-recurring international, national, and regional surveys of waterfowl and other hunted species such as sandhill cranes are specifically-designed to inform harvest management.

The FWS also requires population monitoring data in order to manage both bald and golden eagles in the US and to determine the level of take that can be permitted without causing population decline. The West-wide Golden Eagle Survey (WGES) is an important survey that provides running estimates of golden eagle population size for the FWS. Similarly, the United States Bald Eagle Nest Survey provides population status and trend data for the breeding population of bald eagles in the

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US. Estimates from both these surveys are required under the Programmatic Environmental Impact Statement for the Eagle Rule Revision (2016) associated with the FWS' eagle take permitting regulations. Permitting is essential to allow critical infrastructure and energy development to proceed while minimizing impact to eagle populations.

In addition, the FWS utilizes population data from scientifically-defensible wildlife surveys, including surveys conducted from aircraft, to manage conflicts between wildlife and people. As human, and in some cases, bird, populations expand, the possibility of conflict between human interests (e.g., agriculture, development, conservation of threatened and endangered species) and other species managed by FWS increase. These conflicts can range from minimal, such as a minor nuisance, to potentially significant economic and ecological damages, or risks to human health and safety. Species that depredate crops or fish produced through aquaculture for human consumption may cause a significant, negative economic impact. When a protected migratory bird species is involved, the FWS applies a standard conflict resolution framework to negotiate a solution. This process often requires defensible data on population abundance and trend and a variety of survey data are critical, some of which must be conducted by aircraft at low altitude.

Ecological Services

The FWS is responsible for monitoring population trends threatened and endangered (T&E) to manage listed wildlife species in the United States. Due to the nature of where these species are located, aircraft are a necessary tool to accomplish these goals. Aerial wildlife surveys are regularly conducted for T&E species over a large geographical area both on and off of federally managed lands. Methodologies often require low level flights below 500 feet AGL.

National Wildlife Refuges

The National Wildlife Refuge System includes 568 national wildlife refuges from Alaska to the Caribbean and Maine to the south Pacific, five national monuments and 38 wetland management districts. Each Refuge has federally mandated purposes directed through enabling legislation for which they must adhere. These include wildlife conservation and population monitoring, wetland in inventory and monitoring, resource protection and enforcement of state and federal laws, and many others. A large proportion of these federally mandated purposes require low level flight.

Natural or Environmental Disaster Response

FWS frequently utilizes aircraft in response to natural and environmental disasters such as hurricanes and oil spills to assess damage to FWS lands and facilities, identify and return property to owners (e.g., boats), and evaluate wildlife population impacts. These activities often require low-level flight to observe vehicle markings or to identify birds or other wildlife to species.

Discussion

1. FWS conducts operations (to include those in aircraft) for public health and benefit as directed by law (Congress), e.g. Migratory Bird Treaty Act of 1918.

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