Removal of the Bald Eagle from the Threatened and Endangered Species List

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The US Fish and Wildlife Service (USFWS) announced the final decision to remove the bald eagle from the list of threatened and endangered species on June 28, 2007. FHWA is providing the following Q&A's for projects that may take Bald Eagles as defined under the Bald and Golden Eagle Protection Act (BGEPA).

1. What will happen to projects previously authorized for take of bald eagles under ESA section 7 authorizations or section 10 permits now that the bald eagle has been removed from the list of threatened and endangered species?

   For all Endangered Species Act section 7 authorizations and section 10 permits where the bald eagle was the only listed species, the authorization is no longer valid after the date of delisting, June 28, 2007. However, if take under the Bald and Golden Eagle Protection Act (BGEPA) is anticipated, the USFWS has indicated that it will honor agreements made under the Endangered Species Act, until such time as a Bald and Golden Eagle Protection Act permit becomes available, as long as the take is in compliance with terms and conditions of the former Endangered Species Act authorization The USFWS has proposed a permit structure under the Bald and Golden Eagle Protection Act. The permit structure is not yet in place. Once the BGEPA permit process is in place, the appropriate permits will need to be obtained. The proposed BGEPA permit regulations would allow the USFWS to expedite processing of Eagle Act permit applications to entities that have valid ESA incidental take authorizations or permits.

   For section 10 permits covering the Bald Eagle and other species still listed under the ESA, the permit remains valid (the bald eagle becomes a covered, nonlisted species), including the assurances provided relative to the MBTA and the Eagle Act. The rule proposed by the USFWS would officially grant BGEPA authorization to these permittees without the need for issuance of an additional permit.

2. What should an action agency do for projects that do not have incidental take permits?

   The USFWS recommends that an action agency conducting activities that may "take" bald eagles (but which are not currently covered under an existing Endangered Species Act authorization) follow the National Bald Eagle Management Guidelines to avoid violating the Eagle Act until they can obtain a permit authorizing the take under the BGEPA.

3. What are the National Bald Eagle Management Guidelines?

   The Service developed the National Bald Eagle Management Guidelines to advise landowners, land managers and others who share public and private lands with bald eagles when and under what circumstances the protective provisions of the Eagle Act may apply to their activities. The Guidelines include general recommendations for land management practices. A table summarizing activity specific guidelines is attached. Adherence to the Guidelines will help to avoid violations of the BGEPA. However, the Guidelines themselves are not law, and even close adherence to them will not absolve individuals, companies and agencies from liability under the BGEPA (see answer 4, below). To get a copy of the guidelines go to:

   National Bald Eagle Management Guidelines (PDF)

4. Can an agency be prosecuted under the Bald and Gold Eagle Act?

   Yes, the Service has indicated that until a permit program is adopted, it is not possible to completely absolve individuals, companies, or agencies from liability even if they follow the guidelines. However, the USFWS Office of Law Enforcement focuses its resources on investigating and prosecuting individuals and companies that may take eagles and nests without regard for their actions or without implementing the measures in the Guidelines. So while it is unlikely that a person, company or agency following the guidelines will be prosecuted for a take of an eagle, it could occur.

5. Can an agency be prosecuted under the Migratory Bird Treaty Act?

   Bald eagles are among the migratory birds protected by the MBTA. Although the MBTA does not protect habitat, a modification to eagle habitat that directly takes or kills a bald eagle (such as cutting down a nest tree with chicks present) would constitute a violation of the MBTA, as well as the BGEPA. ). Take is defined under the Migratory Bird Treaty Act as pursue, hunt, shoot, wound, kill, trap, capture, possess, or collect.

6. New definitions applicable to the Bald and Golden Eagle Protection Act

   Take is defined, for the BGEPA, as to "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb" a bald or golden eagle.

   Disturb means to agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior.

   Practicable means capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.

   Unavoidable means the activity is necessary for the public welfare, and all practicable, industry accepted measures to minimize the take are in effect.

   Important eagle-use area: an eagle nest, foraging area, or communal roost site that eagles rely on for sheltering and feeding, and the landscape features surrounding such nest, foraging area, or roost site that are essential for the continued viability of the site for breeding, feeding, or sheltering eagles. This term refers to the particular areas, within a broader area where human activity occurs, where eagles are more likely to be taken (i.e., disturbed) by the activity because of the higher probability of interference with breeding, feeding, or sheltering behaviors at those areas.

7. Will there be a permit under the Bald and Golden Eagle Protection Act?

   The Service has proposed a permit structure under the Bald and Golden Eagle Protection Act. The permit structure is not yet in place. As currently proposed in the NPRM issued June 5, 2007, the new permit regulation under the authority of the Eagle Act will be for the limited take of bald and golden eagles .where such permits are compatible with the preservation of the bald and golden eagle, and the take is associated with, and not the purpose of an otherwise lawful activity, and cannot practicably be avoided. All permittees will be required, as part of their permit conditions, to carry out conservation measures to mitigate impacts to eagles

   Take permits will authorize activities that could cause an eagle to be disturbed by human activities in proximity to eagle nests, important foraging sites, and communal roosts; however, in some limited cases, where other forms of take besides disturbance are unavoidable, we anticipate that a permit may be issued under this section for such other form of take.

   If avoiding disturbance is not practicable, the project proponent may apply for a take permit. (A permit is not required to conduct any particular activity, but is necessary to avoid potential liability for take caused by the activity.) Disturbance may also result from human activity that occurs after the initial activities (e.g., residential occupancy or the use of commercial buildings, roads, piers, and boat launching ramps). In general, however, permits would not be issued for routine activities such as hiking, driving, normal residential activities, maintenance of existing facilities, where take could occur but is unlikely, and would be unreasonably difficult to predict and/or avoid.

   The public comment period for the NPRM closed September 4, 2007. However, the rulemaking will be re-opened for another comment period when the draft NEPA assessment is released, probably in late 2007. At this time, it is not known when the rulemaking will be concluded or how closely the final rule will follow the process outlined in the NPRM.

Questions and feedback should be directed to Dan Buford (Daniel.Buford@dot.gov, 202-366-8168).