U.S. Fish and Wildlife Service
134 Union Boulevard
Lakewood, Colorado 80228
May 21, 2008
Contact: Nicholas Throckmorton, 703/358-2235
Barb Perkins, 303/236-4588
Service Issues Rule to Grandfather Pre-existing Endangered Species Act
Authorizations for Take of Bald Eagles
The U.S. Fish and Wildlife Service today issued revised regulations under the Bald and Golden Eagle Protection Act of 1940 that will enable the agency to continue honoring authorizations for “take” of bald eagles previously granted under the Endangered Species Act (ESA). The regulations, which published in the May 20, 2008, Federal Register, are part of an ongoing effort to ensure that the bald eagle is effectively conserved and managed under the Eagle Act now that the eagle is no longer protected as a threatened species.
“Though no longer endangered throughout most of North America, bald eagles continue to receive strong protection through the Eagle Act,” said Service Director H. Dale Hall. “Today’s action ensures that responsible landowners will be able to manage their land consistent with the assurances they were given under the Endangered Species Act.”
While the bald eagle was protected under the ESA, the Service allowed federal and non-federal landowners to undertake otherwise lawful activity conducted on their property that could accidentally harm or kill an eagle if they agreed to specific conservation measures. These agreements, authorized under Sections 7 and 10 of the Endangered Species Act, helped the Service work with federal and non-federal landowners to mitigate the impacts of activities on their lands and benefit eagle conservation.
Under the requirements of the Eagle Act, any “take” of bald and golden eagles – which includes killing, injuring, disturbing or otherwise harming eagles, their nests or eggs – must be authorized via a permit. Under the ESA, take of listed species is also prohibited without a permit. The rule issued today will grandfather both permits issued under section 10 and the incidental take statement under section 7 under the ESA in the following way:
- ESA Section 10 Permits – Private landowners, corporations, state or local governments, or other non-Federal landowners who wished to conduct activities on their land that might incidentally harm (or "take") an eagle were first required to obtain an incidental take permit from the Service. To obtain a permit, applicants were required to develop a Habitat Conservation Plan (HCP), designed to offset any harmful effects the proposed activity might have on the species. The HCP process allowed development to proceed while promoting eagle conservation.
Under the revised regulations, currently valid take authorizations for bald and golden eagles originally issued to applicants under ESA section 10 will be automatically covered under these revised Eagle Act regulations as long as the permittee fully complies with the terms and conditions of their ESA permit.
- ESA Section 7 Incidental Take Statements: All Federal agencies are required by the ESA to use their existing authorities to conserve threatened and endangered species and, in consultation with the Service, to ensure that their actions do not jeopardize listed species or destroy or adversely modify critical habitat. Agencies conducting activities likely to harm eagles or other listed species were required to consult with the Service and obtain an incidental take statement.
An incidental take statement identifies the level of take that is anticipated from implementation of a project as proposed. The statement contains reasonable and prudent measures and conditions designed to minimize the effects of the take. These measures and conditions must be implemented in order for any take to occur legally. This final rule creates a new, expedited permit under the Eagle Act to provide take authorization to federal agencies for activities originally authorized under ESA section 7.
Current permit holders are encouraged to read the final rule, available at <http://migratorybirds.fws.gov>.
Today’s action is the latest in an ongoing series of actions designed to ensure a seamless transition to management of bald eagles under the Eagle Act.
Prior to removing the eagle from the federal list of threatened and endangered species in August of 2007, the Service modified the regulatory definition of “disturb” under the Eagle Act to give landowners a clearer understanding of their obligations under this law. The Service also released National Bald Eagle Management Guidelines giving landowners guidance on how to ensure that actions they take on their property are consistent with the Eagle Act and the Migratory Bird Treaty Act.
In addition, the Service solicited comments in July, 2007 on a proposal to establish a nationwide permit program that would address requests for new take authorizations under the Eagle Act independent of any previous authorizations granted under the ESA. The proposed permit program would set strict limits on the take of bald and golden eagles consistent with levels and conditions previously authorized under the ESA. The Service received 21,000 comments from private citizens, state and tribal governments, conservation groups, and industry.
The Service intends to release a draft Environmental Assessment of the proposed nationwide permit program in the near future, giving the public another opportunity to comment on the proposed permit program and its anticipated impacts. A Notice of Availability for the draft Environmental Assessment will be published in the Federal Register.
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. We are both a leader and trusted partner in fish and wildlife conservation, known for our scientific excellence, stewardship of lands and natural resources, dedicated professionals and commitment to public service. For more information on our work and the people who make it happen, visit www.fws.gov.
Questions and Answers:
Why is it important to extend Endangered Species Act agreements to new coverage under the Bald and Golden Eagle Protection Act? Before the Service removed the bald eagle from protections under the Endangered Species Act on June 28, 2007, landowners and other federal agencies could enter into agreements with the Service to conserve bald eagles. Under these agreements, if the landowners agree to certain land management provisions, the Service would not cite a violation if an eagle was accidentally harmed or killed. This successful conservation model helped the Service work with private landowners and other federal agencies to avoid violating the law and encourage activities that ultimately help eagles. The Service proposed a similar permit structure under the Eagle Act and has taken the first step of two to implement the proposal.
How will the Service achieve the new coverage under the Eagle Act? The first step is to bring existing permits issued through the ESA under legal coverage of the Eagle Act. The next step, forthcoming from the Service, is to promulgate regulations for new permits to be issued in the future. The Service would ensure that permitted take of eagles will not significantly affect eagle populations.
What do I need to do if I currently hold an ESA Section 10 Permit? If you currently hold either a section 10 enhancement of survival permit with a Safe Harbor Agreement or a section 10 incidental take permit with a Habitat Conservation Plan, you will be automatically covered under these revised Eagle Act regulations. The take authorization under the ESA section 10 permits will continue to be valid as long as you fully comply with the terms and conditions of your ESA permit. You do not need to obtain a separate new permit under the Eagle Act for impacts already authorized under your valid ESA permit.
What do I need to do if my federal agency currently holds an ESA Section 7 Incidental Take Statement? Under the requirements of the Eagle Act, any take of bald and golden eagles must be authorized via a permit. Under the ESA section 7 process, take is authorized via an incidental take statement rather than a permit. You will need to apply for a new permit under the Eagle Act to provide take authorization that your federal agency will need for activities originally authorized under ESA section 7. The Service is providing assurances that it will not refer for prosecution any take that is in accordance with the previously issued ESA incidental take statement. This assurance will be valid for one year after today’s rule takes effect in order to provide federal agencies the opportunity to apply for the new expedited Eagle Act permit.
When will the Service promulgate regulations for the issuance of new Eagle Act permits? The remainder of the proposed rulemaking will address requests for new take authorizations under the Eagle Act independent of any previous authorizations granted under the ESA. This is currently under National Environmental Policy Act review. A Notice of Availability for the associated draft Environmental Assessment will be published in the Federal Register in the near future.
What other regulations did the Service promulgate under the Eagle Act to prepare it for being the primary law to manage eagles? To ensure a smooth transition from the Endangered Species Act to the Eagle Act for eagle management, the Service finalized a definition of “disturb” under the Eagle Act as well as voluntary National Bald Eagle Management Guidelines.
The Eagle Act makes it illegal to “take” a bald eagle. “Take” is defined as attempting to “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” a bald or golden eagle. The Service felt that the definitions of these terms were clear except for disturb. To address this concern the Service finalized a definition of the term “disturb”. The definition of disturb is “(d)isturb 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.”
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 about 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 that will benefit bald eagles; however, the document is intended primarily as a tool for landowners and planners who seek information and recommendations regarding how to avoid disturbing bald eagles. Adherence to the Guidelines will benefit individuals, agencies, organizations, and companies by helping them avoid violations of the law. However, the Guidelines themselves are not law. Rather, they are recommendations based on several decades of behavioral observations, science, and conservation measures to avoid or minimize adverse impacts to bald eagles.