"An estimated 5,000 to 10,000 birds, mostly Lapland Longspurs, were killed on the night of January 22, 1998, at a 420 foot tall communications tower in western Kansas. Apparently a heavy snowstorm sent the birds up looking for bare ground. Dense fog caused the tower's aviation-safety lights (required on structures over 200') to reflect off water in the air and form an illuminated space, causing the birds to switch to their diurnal (visual) mode of navigation. The flock circled the lighted tower and collided with its guy wires. Some birds were impaled by wheat stubble, suggesting they were so disoriented that they couldn't tell which way was up and flew into the ground at full force. The tower had three white strobes. This is interesting because it has been suggested that flashing lights cause less mortality than steadily illuminated lights. Evidence suggests that continent-wide, communications towers kill 2 to 4 million songbirds each year." (American Bird Conservancy, Bird Calls, March 1998).

Bird kills by structures are not new; kills have been reported under glass buildings, skyscrapers and lighthouses for years. Tall communications towers began to be constructed in the 1940's and 1950's, but there were few dire predictions at the time that they would kill birds. Early studies were done at power plant structures, but in the 1960's, people thought it was a small number of birds and accepted the mortality. Unaware of declining bird populations, the thinking was that it was only a small percent that was being killed. But five tower kill studies done in the eastern US in recent decades all showed kills of roughly 1,000-3,000 kills per year. All the studies showed declining kills through the years, which may reflect population decline or diffusion of birds owing to increased light.

The problem is caused by the lights on the towers for aviation warning. On nights with a low ceiling, birds lose their cues for stellar and geomagnetic navigation. The light reflecting off water molecules in the air causes an illumined area, creating a whirlpool of birds circling the tower in the light space. Bill Evans of the Cornell Laboratory of Ornithology ventured the estimate cited above, of 2 to 4 million bird kills a year at towers, and there is a growing bibliography of documented North American tower kills of birds. The US Fish and Wildlife Service (F&WS) maintains a file of abstracts from some 62 publications from the 1960's to the 1990's on tower bird kills in the US at the Office of Migratory Bird Management (703)358-1963 (email Albert_Manville@fws.gov). A special report by Leslie J. Evans Ogden for World Wildlife Fund and the Fatal Light Awareness Program (FLAP) titled "The Hazards of Lighted Structures and Windows to Migrating Birds" (Sept., 1995) includes a summary table of over 100 TV tower collisions in the US and Canada.

Some of these documented cases of tower kills are very revealing. Many of them indicate a very high percent of forest Neotropical long-distance migrants, especially warblers. Some kills involve many species, others a high number of a few species. Some publications report one-night kills; others report kills over a period of weeks or over a season at the same tower(s). A one-day kill on Sept. 20, 1963 at the Ostrander TV tower in Minnesota (Flicker 35:79-84) was estimated at 1,000 - 1,500 birds; but three species (Swainson's Thrush, Ovenbird, Red-eyed Vireo) comprised 62% of the 248 individuals of 28 species collected. In another kill of 3,683 birds of 77 species at two towers in Nashville in fall, 1960, five species (4 warblers) comprised 63% of the kill (Inland Bird Banding News 33:1). In another 3,000+ bird kill of 76 species in fall 1973 and spring and fall 1974 at a 2,000 ft. TV tower in Iowa, Red-eyed Vireo was the most abundant species, representing 21% (724) of birds recovered; 26 species of warblers made up 60% (2,102) of the kill (Iowa Bird Life 45:88-90).

Clearly the number of towers has greatly increased since these early kills of the 60s and 70s, and will continue to increase, thereby contributing one more drain on bird populations. The height of towers has also increased; wisdom has it that towers under 200 feet cause less songbird mortality, but towers today may reach heights of 2,000 feet. The Telecommunications Act of 1996 deregulated the industry. An estimated 1,000 new towers are built each year at present. Now there are 15,000 analog cell-phone towers across the country. That number is expected to go to 25,000 in the next ten years. The Federal Communications Commission (FCC) proposed a rule in 1997 that would allow the FCC to preempt state and local zoning and land use ordinances in the placement and construction of transmitting facilities. The Council of Mayors, the National Audubon Society (NAS) and the American Bird Conservancy (ABC) opposed this rule and NAS filed a petition requesting that the FCC prepare an Environmental Impact Statement (EIS) as it is required to do under the National Environmental Policy Act (NEPA). Bills before Congress (S 1350 and HR 3016) also opposed this FCC rule.

The Commission proposed this rule because it is seeking swift implementation of digital television service (DTV). However the rule would also extend to other broadcast towers, not just DTVs. Such a proposal is clearly a major federal action affecting the environment. As such, the FCC's own regulations require an environmental analysis of any action that may affect an endangered species or allow construction in critical habitats. Furthermore, Section 7 of the Endangered Species Act (ESA) requires consultation with the US Fish and Wildlife Service (FWS) when a federal action may affect a protected species. The federal wetlands program under Section 404 of the Clean Water Act (CWA) is now being delegated to states, and by overriding state law, the proposed rule could conflict with federal wetlands policy on construction in wetlands. The proposed rule would further damage habitat because it would allow state and local authorities to reject tower applications only for reasons of health and safety, not for environmental concerns. Conflicting as it does with other federal policy, it is not clear the FCC has the authority to propose such a rule. It is bad federal policy to override state environmental protections simply because the environmental laws are burdensome to a special interest.

New Jersey Audubon Society is specifically opposed to waiving environmental laws for a special class of development. We are generally opposed to any action, federal or otherwise, which has the effect of weakening the ESA, CWA Section 404, or the NJ Freshwater Wetlands Protection Act. We are opposed also to abbreviated time limits (unseemly haste) for towns or states to process permits for towers. The 21 to 45 day limits are out of sync with federal time limits of 120 to 135 days to process permits that affect wetlands or endangered species. We question whether a lax rule proposal is consonant with our international migratory bird treaties with Mexico and Canada that protect Neotropical migrants. Current FCC policy states that broadcast towers should be away from migratory bird corridors as far as possible. Allowing the FCC to bypass conservation regulations such as an EIS would conflict with that policy.

 Siting towers away from ridges, wetlands and rivers where birds are concentrated on foggy nights is one of the strategies critical to protection of migrants. There needs to be serious, ongoing discussion among the F&WS, the FCC, and the FAA about the NEPA requirements and the upcoming Executive Order on the Migratory Bird Treaty Act.

 In addition to safeguarding conservation regulations such as requiring an EIS, New Jersey Audubon Society also strongly urges a number of proactive measures to reduce migratory bird mortality. First and perhaps most important is an effort to dim tower lighting or to experiment with less frequently blinking lights so that birds can more easily escape the zone of light around the tower. That change, along with the use of acoustic sensors on towers that detect circling birds, could help to prevent kills in fog or low ceiling conditions when birds may be flying closer to the ground. Marking of guy wires with bright balls or paint is also helpful.

 The use of towers below 200' and especially the co-location of towers could reduce obstacles to safe passage of migratory birds. Rapid proliferation of DTV, FM broadcast and cell-phone towers over the next ten years would multiply hazards to birds if companies continue to build their own towers. Sharing of towers would eliminate kills and might be cheaper in the long run. The use of satellites instead of towers would be less environmentally costly and perhaps cheaper long term.

 This issue is both local and hemispheric, since migratory birds are involved. NJAS urges community groups to promote awareness of this tower lighting-bird kill problem among their congressional representatives, mayors and councils and commissions, and to urge the upholding of zoning and environmental regulations and state conservation laws. NJAS also urges an expanded program of monitoring of tower kills. Even though this rule permitting the override of local zoning and state conservation laws is not currently in effect, it could become standard operating procedure under pressure from communications companies seeking to beat the competition. Vigilance is the price of conservation.

Richard Kane, Vice President

Conservation and Stewardship