Working Safely, and Therefore Legally, Near Tower-Nesting Birds

This article was originally published in NATE’s 2024 Tower TimesVolume 1.

A mid-April sunrise on the coast of Florida finds me sitting in my car, with my high-powered spotting scope trained on an Osprey nest built on the top tier of a cell tower. As the misty dawn dissipates, I can just start to make out the mottled ticking of a “necklace” – the slightly speckled breast feathers below the Osprey’s neck, which tells me the adult Osprey laying low in the nest is female. Based on her posture, she is incubating eggs.

Suddenly, an adult male Osprey in flight appears and vocalizes while orbiting the tower. The female softly responds to the male’s contact calls as she stands, stretching a wing, and then a leg while scanning the sky for interlopers. Reassured, she rouses to re-arrange her feathers, then gingerly returns to sitting on her eggs. The male, satisfied all is well at the nest, begins to drift away and returns to his morning hunting routine. The next time he appears, he carries a small fish, which he offers to the female. She accepts his gift and takes the fish to a nearby perch. The male inspects the nest carefully before he slips into incubation posture while the female eats.

Like most birds, male and female Ospreys share the duty of incubation. They are large, powerful fish-eating raptors, or birds of prey, that have forward-facing eyes for acute long-distance and binocular vision. However, unlike other raptors, Ospreys plunge feet-first into the water from high above. Their pale blueish feet are covered in spicules with reversed scales – perfect gripping pads for grabbing slippery fish. Their outer toes are reversible, which they pivot to carry their prey in flight; two toes in front and two behind.

Having completed her meal, the adult female returns to the nest to resume her incubation duties. The male, happy to oblige, jumps to an adjacent antenna to perch and preen his feathers, but something alarms him, and he takes flight while vocalizing loudly. I spot a young juvenile eagle from a nearby nest aloft in the morning sky. The eaglet, testing its flight skills, is more curious than menacing; however, the male Osprey is not taking any chances and promptly escorts the eaglet away. Appearing unthreatened, the female remains tight on her eggs.

Cell service at this site is intermittent, frustrating customers and compromising E911 service reliability. Several hours of repairs are required on equipment located at the same level as the nest. To complicate matters, the nearby eagle nest is in a tree about 600 feet away from the tower, just inside the disturbance distance buffer recommended in the U.S. Fish and Wildlife Service’s Bald Eagle Management Guidelines. Access to perform the necessary repairs is urgent and cannot be deferred until after both the eagles and the Ospreys no longer occupy their nests, which would likely take months.

I was not formally educated in the field of biology, nor am I an expert in avian science. However, after assisting my late husband, Tom Maechtle in his contributions to avian biology, stakeholder cooperation, and building meaningful relationships to advance conservation for the benefit of both birds and humans.

Tom passed away in December of 2016 shortly after being diagnosed with stage four pancreatic cancer. Prior to this catastrophic diagnosis, he had secured a master service agreement with T-Mobile to create and implement safe and legal practices for crews working at telecom sites that hosted nesting birds. This untimely loss left me scrambling to fill that commitment, which I did with the help of Tom’s close friends and scientific colleagues in the avian conservation world.

Technological advances over the last two decades made by the telecommunications industry undoubtedly benefits our modern lifestyles. Surprisingly, those same advances had had an unexpected benefit to nesting birds by providing attractive nest sites. Based on data provided by the industry, we estimate that the percentage of cell towers hosting nesting birds has increased from 1% in 2012 to 10% in 2022. In short, roughly 10,000 telecom sites in the U.S. are calculated to host nesting birds. Moreover, the tower-nest expansion rate of 1% per year is likely to continue. Scientifically known as generational habituation, birds raised on towers are more likely to choose towers for nesting when they enter the breeding population.

CTOM’s data, collected over the last five years, suggests Ospreys are the most common tower-nesting species, occupying approximately 60% of all tower-nests. Ravens, American crows, and Red-tailed hawks are the second most frequently found group of tower-nesting birds. Because most tower-nesting birds are federally protected, access to telecom equipment for repairs, maintenance, or upgrades can be challenging during the breeding season. Faced with potential FCC fines when E911 is out, not to mention backlash from dissatisfied customers when service-reliability is compromised, the carriers need solutions.

The primary federal laws protecting birds are the Migratory Bird Treaty Act (MBTA), the Bald and Golden Eagle Protection Act (the Eagle Act), and the Airborne Hunting Act (AHA). Very few states have statutes that are more restrictive than these federal laws. Most states rely on the MBTA for their nesting bird regulations and follow its definition of an active nest as one that supports eggs or dependent young. This is an important distinction, as some states define a nest as active when the birds return to their nests and begin their breeding rituals, regardless of weather eggs are present or not. However, other states rely on calendar dates to signal the beginning and the end of a breeding season. A few states use both calendar dates and occupancy as an indication of an active nest. Multiple definitions and unconcise language can expose the industry to unintentional violations or unnecessarily delay important work during a period when risk to the birds is minimal.

For example, prior to egg-laying, work disturbance is not prohibited under the MBTA, because disturbance that does not result in harm to the nesting birds, their eggs, or young is not considered take and is therefore not prohibited. Written guidance provided by U.S. Fish and Wildlife Service (the Service) MBTA permitting offices indicate that “if the work poses low to no risk of take, the regulated community can make the decision if a take permit is required.”

Nevertheless, without biological expertise or knowledge on these subtle distinction, the risk-adverse industry may choose to defer work that could be safely performed during a low-risk period in the nesting cycle. Both the service and the states would prefer the industry make repairs preemptively during less risky periods. Delaying repairs that escalate into critical outages requiring emergency access during a much more sensitive and high-risk period in the breeding season should be avoided, as both federal and state depredation or take permits usually take weeks to acquire, and the resources expended and resulting bird mortality is problematic for the agencies and the public.

After spending several hours monitoring both the Osprey tower-nest and the nearby eagle nest, I conclude the stage-of-nesting for the Ospreys is incubation. Based on how often the pair exchange incubation duties, I suspect they are mid-way in the 35-to-38-day process. Temperatures are still mild, and if work is scheduled on a fair-weather day, the risk of harm to the eggs during the 2-hour disturbance period is minimal.

My observations of the eaglets confirm they are capable of flight with good landings. The adult eagles are mostly away from the nest hunting, so the young are spending less time at the nest, which means the disturbance distance buffer guideline is no longer a meaningful consideration. In addition, the eagle nest tree is on the edge of a new subdivision with homes currently under construction, indicating the eagles are acclimated to a high level of anthropogenic activity.

I work up a single page report of my findings and make the recommendation to proceed with the work while the Osprey nest is monitored by a qualified biologist during a good weather period. I also provide a courtesy email to the state to advise them of when the work will be performed, and the biological monitoring efforts that will take place to support compliance. Because the risk of take for both the eagles and the Ospreys in low, authorization is not required, nor expected. However, advance notification of work at nest sites that may cause alarm with the public is encouraged, and always appreciated by both the states and the Service.

Strategic analysis is required for short-term and long-term potential effects of disturbance on nesting birds when work is required at towers hosting nests. Qualified professionals experienced in the needs of the industry are equipped to collect the right biological data that will meet the obligations of the wildlife regulations. Unfortunately, the typical nest survey report often falls short of providing the necessary information for these considerations. Reports often contain multiple pages of superfluous information and inconsistent terminology, leaving more questions than providing answers. Moreover, the reports often contain reminders of take prohibitions with no recommendations for how to avoid take or under what conditions the work might proceed with little to no risk to the nesting birds.

A solution to these inconsistent and unclear results would be to encourage the industry to coalesce and organize a professional migratory bird compliance committee like the Avian Power Line Interaction Committee (APLIC). Since the 1970’s, the utilities industry, wildlife agencies, conservation groups and manufacturers of avian protection products have collectively protected birds while providing reliable electric service. Developing a similar committee, the industry would standardize their practices with safe access processes. This would provide the telecom community with a voice to motivate the wildlife agencies to adopt those leading practices and build valuable relationships for future collaborations.

To this end, CTOM recommends coordinating outreach meetings with the state and federal wildlife agencies, developing educational workshops for climbing crews on how to work safely near nesting birds, and creating industry standardized protocols for access processes at sites hosting nesting birds. By standardizing protocols, including the data required for nest surveys, more informed and appropriate decisions could be made when work at sites is required during the breeding season.

Furthermore, consistent training and standardized protocols will minimize unintended harm to birds. By shaping access guidelines with evidence-based and common-sense approaches used by research biologists for decades, the climbing crew will know what to expect and how to work safely around nesting birds. The results of standardization will be clear. Older fledglings that are not yet ready to fly will no longer become frightened by climbers or drone operators, prematurely jumping from the nest causing injury or death. Climbers or drone operators will no longer unintentionally keep adult birds from tending vulnerable hatchlings, unknowingly causing their demise from over-exposure. Likewise, year-round protected eagle nests that are sometimes “accidentally” removed without authorization because the crew thought an empty nest meant it was no longer protected will no longer be a concern.

The crew arrive the next day to begin the repairs atop the tower. The monitoring biologist exchanges phone numbers with the lead tech to relay important information quickly, and requests that a photo of the nest’s contents is texted to him for his review. In addition, the biologist explains to the crew what to expect from the adult Ospreys; the non-incubating adult will likely begin to vocalize and orbit the tower as soon as the climber begins the ascent. Once the climber is within 40 feet or so of the nest, the incubating adult will likely leave the nest and join its mate, flying close by, vocalizing, and circling the tower. The biologist stresses that while this behavior is intimidating, Ospreys do not typically make physical contact with climbers during their faux dive-bomb attempts. Yet, the mere presence of angry birds can feel threatening, making work at elevation more difficult and dangerous. For these reasons, it is important to take time to explain to the climbers what to expect and how to safely deflect the birds if they get to close for the climber’s comfort.

Fortunately, the Ospreys behave as predicted and the work is completed just under the original 2-hour estimate. With the crew back on the ground, the adult female promptly returns to her incubation duties, and the male drifts away presumably to rest or resume hunting. Neither the adult eagles, nor the eaglets, are present at their nest during the work period. Later in the season, I will return to the site to follow up on the nest’s status and hopefully confirm that the two eggs currently present in the nest have progressed into fledglings capable of flight.

Since 2018, CTOM has been monitoring tower-nesting birds for work restoration and collecting important data across the country. By documenting the birds’ sensitivities to and tolerance for cell tower work at sites with active nests, then confirming nesting productivity at those same tower-nests later in the season, we are testing and validating our access recommendations. Currently this data is being prepared for scientific analysis, which we plan to have peer-reviewed by the scientific community at a later date. Once complete, we will share the results with the wildlife agencies, as well as the industry, to serve as a baseline for framing future standardized practices.

In the spring of 2021, CTOM launched a migratory bird support hotline for the industry. Since then, we have processed over 3100 requests for assistance, greatly adding to our body of knowledge on tower-nesting birds across the country. This repository of data has better informed us, and therefore the industry, on what species are using towers for nesting and will likely continue to reveal the tower-nesting expansion rate of those species in the future. The hotline not only provides the industry with a real-time resource for immediate assistance that promotes bird safety, we also provide an inexpensive and useful too for documenting nesting species to support inactive nest removal efforts after the breeding season.

In the past, inactive nest removals were less frequent. The abundance of tower-nests and increase in service reliability challenges now necessitates nest removals after the breeding season to support operations and development. However, with the rise of the bald eagle population, as documented by the 2020 USFWS Bald Eagle Population Size Update, and what we know about the eagle tower-nesting expansion in Florida, we anticipate seeing an increase in eagles choosing towers for nesting throughout the U.S. Unfortunately, as the potential for bald eagle tower-nesting expands, so too will the risk of unintentional removals of their year-round protected nests. To avoid potential violations of the Eagle Act, and the heavy fines associated with those violations, CTOM recommends confirming the nesting species with certainty prior to any inactive nest removals.

As I arrive at the cell tower, I surveyed last April, I observe a single fledgling perched near the nest. I set up my spotting scope for a closer look. The young Osprey is relaxed and well-fed by the size of its large crop. It’s late in the day and the sun has begun its descent toward the horizon. A few minutes later, the perched fledgling rouses and begins to vocalize, food begging. I spot the adult male in flight, headed towards the nest, carrying a fish. Another fledgling is in flight behind him in hot pursuit, vocalizing loudly, and intent on stealing the fish. The adult male releases the fish and it falls into the nest. The flighted fledgling lands on the nest platform nest to the perched fledgling, and the two young Ospreys begin to squabble over the fish. The adult male flies out of sight as the sun dips below the horizon. All is well that ends well — another nesting success story on a human engineered structure.

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About the Author: Kathy Maechtle

Sr. Avian Outreach Specialist Kathy Maechtle is the principal and owner of Cell Tower Osprey Management (CTOM). Maechtle specializes in avian conservation, providing industry and other stakeholders with technical assistance to understand wildlife regulations, apply scientific principles and sound management practices using evidence-based solutions for their avian challenges.

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