June 11, 2007

U.S. Fish and Wildlife Service Announces Management Actions for Eagles in Anticipation of Bald Eagle Delisting Under the Endangered Species Act

Holland & Knight Alert
Rafe Petersen

The United States Fish and Wildlife Service (FWS or the Service) is in the process of removing the bald eagle from the list of “endangered” and “threatened” species pursuant to the Endangered Species Act (ESA). As part of that process, on June 5, 2007, the Service undertook three management actions that interpret the 1940 Bald and Golden Eagle Act (BGEPA): (1) issuance of a final rule defining the term “disturb” as a prohibited “take” of Bald Eagles under BGEPA; (2) publication of non-binding management guidelines intended to help landowners avoid disturbing eagles (thereby violating BGEPA); and (3) publication of a proposed rule establishing a permit program for “take” of eagles under BGEPA where disturbance is unavoidable.

Since being added to the ESA list of “endangered” species in 1967, the Bald Eagle has made a remarkable comeback (due in large part to the ban of the chemical DDT). According to the latest population surveys, the Bald Eagle population in the lower 48 states is now 9,789 breeding pairs compared to a low of 417 pairs in 1963. Consequently, FWS is likely to remove the Bald Eagle from its list of species protected under the ESA by late June 2007. Assuming the Bald Eagle is delisted, the primary law to protect eagles will be BGEPA and the Migratory Bird Treaty Act. In relevant part, BGEPA lists a number of actions that would result in a prohibited “take” of eagles. These actions include to “pursue, shoot, poison, wound, kill, capture, trap, collect, molest, or disturb” an eagle.

In anticipation of the eagle no longer being protected under the ESA, FWS defined “disturb,” issued the Management Guidelines and proposed a permit program under BGEPA. 72 Fed. Reg. 31132-31155 (June 5, 2007). The final rule broadly defines “disturb” to include actions that cause or are likely to cause injury, decrease in breeding productivity or nest abandonment. The Management Guidelines describe the kinds of activities and distances from eagle nests that the FWS recommends as necessary to avoid a “take” when applying the new “disturb” definition, using criteria such as visibility of the activity from the nest. Finally, FWS proposed rules that will permit the “incidental take” of eagles. FWS has expressly stated that it will honor all prior ESA authorizations, whether through a section 10 incidental take permit or a section 7 incidental take statement, provided that the permittee is in compliance with those approvals. The proposed permit rule would expedite permit issuance for holders of prior ESA authorizations and describes permit criteria for those persons that do not have prior ESA approvals. FWS will be taking public comments on the proposed rule for 90 days (until September 4) and hopes to issue final permit rules by the end of 2007.

These actions and the likely delisting of the Bald Eagle under the ESA will greatly impact the regulated community given that many routine land use activities would fall under the definition of “disturb,” and could result in liability under BGEPA.

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