Conserving the Nature of America

News Release

Service Issues Rule to Grandfather Pre-existing Endangered Species Act

May 20, 2008


Division of Public Affairs
External Affairs
Telephone: 703-358-2220

Questions and Answers

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 will be 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 Endangered Species Act, the Service allowed federal and non-federal landowners to undertake otherwise lawful activity conducted on their property that could accidentally harmed 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 incidental take statement under section 7 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

Today’s action is the latest in an ongoing series of actions designed to ensure a seamless transition to management under the Eagle Act for both bald eagles and the public.

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 took 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 Endangered Species Act. The Service received 21,000 public 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.

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