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Continued Protection of the Bald Eagle After Delisting

Environmental & Land Use Law

Photo of Bald Eagle courtesy of Audubon Society. The dramatic recovery of the bald eagle over the past 35 years has been one of the greatest conservation success stories of our nation.1 T he bald eagle population increased from its 1963 low of 487 breeding pairs in the lower 48 states to 9,789 breeding pairs in 2007.2 F lorida had 1,133 of these breeding pairs. Using best available scientific and commercial data, the U.S. Fish and Wildlife Service (USFWS) determined that the bald eagle has recovered sufficiently so that it no longer meets the definition of threatened or endangered under the Endangered Species Act of 1973 (ESA) as amended.3 T he recovery has been attributed to the reduction in the use of pesticides known to impair reproductive success (such as DDT), habitat protection, and management plans. A species is endangered under the ESA if it is in danger of extinction through all or significant portions of its range. It is threatened if it is likely to become endangered within the foreseeable future.4 W hile the bald eagle has been delisted under the ESA, as discussed below, it continues to be protected under the Bald and Golden Eagle Protection Act (BGEPA)5 a nd the Migratory Bird Treaty Act (MBTA).6

Effective August 8, 2007, the USFWS delisted the bald eagle in the lower 48 states.7 ( Relisting of bald eagles nesting in Arizona’s Sonoran Desert subsequently occurred.8 ) This revises 50 CFR 17.11(h) to remove the bald eagle from the federal list of endangered and threatened species and removes the special rule for the bald eagle at 50 CFR 17.41(a). This means federal agencies will no longer be required to consult under §7 of the ESA in regard to the bald eagle. Since critical habitat was not designated for the bald eagle, delisting will not affect the ESA’s habitat provisions.

The USFWS determined that habitat availability is not currently preventing the growth of the bald eagle population in the lower 48 states.9 S ince the population continues generally to increase in most states, the USFWS determined that the carrying capacity has not been reached in many parts of the eagle’s range. It is expected that the population in the lower 48 states will generally continue to increase, but at a declining rate until the population gradually stabilizes, with fluctuations. Therefore, “the immediate concern with habitat loss has dissipated.”10 I n Florida and the Chesapeake Bay region, however, there continues to be heavy development pressures and important eagle habitat overlaps.11 A s explained below, the USFWS believes that other regulatory mechanisms will protect the species, even in these areas of concern.

Continued Protection of the Bald Eagle
Even though it was delisted under the ESA, the bald eagle continues to be protected under the BGEPA and the MBTA. The original Bald Eagle Protection Act was enacted in 1940, and thereafter amended in 1978 to include golden eagles, as the original primary vehicle to protect the bald eagle and its habitat. This statute prohibits the “taking” of a bald eagle without a permit from the Secretary of the Interior, and this includes nests and eggs. “Take” is defined as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or disturb.”12

The habitat protection under the BGEPA is not identical to the ESA. However, there is overlap in the definition of “take” under both statutes.13 Additionally, the terms “harm” and “harass” utilized under the ESA further to define “take” are similar to the definition of disturb under the BGEPA.

In considering the relationship between the ESA and the BGEPA, both prohibit the taking of bald eagles, and the respective definitions of “take” do not suggest that the ESA provides more protection for bald eagles than the BGEPA. The meaning of the term “disturb” is at least as broad as the term “harm,” and both terms are broad enough to include adverse habitat modification.14 A main distinction between the ESA and the BGEPA is that the BGEPA does not contain a private right of action. The BGEPA does, however, contain civil and criminal penalties.15

Since the BGEPA will now be the primary federal law protecting the bald eagles, the USFWS determined that the language on taking a bald eagle should be clarified. A final rule became effective on June 5, 2007, which defined the word “disturb” as follows:

To agitate or bother a bald or golden eagle to a degree that causes, or is likely to cause, based on 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.16

Under this definition of “disturb,” the removal of trees by itself does not result in a violation of the BGEPA. However, if the loss of the tree bothers or agitates the bald eagle to the degree that it injures or interferes with breeding, feeding, or sheltering habits to the point where the nest productivity decreases or is abandoned, then a violation of the BGEPA may occur.17 The definition of “disturb” also includes alteration to habitat that results in an eagle never returning to its nest.18

National Bald Eagle Management Guidelines
National Bald Eagle Management Guidelines were also published in the Federal Register on June 5, 2007.19 These guidelines do not have the force and effect of law, but instead contain recommendations based on behavioral observations, science, and conservation measures to minimize adverse bald eagle impacts. The guidelines include a recommendation for distance buffers between activities and nests; maintenance of natural areas between activities and nests; and avoidance of certain activities during the breeding season. Also included are activity-specific guidelines and recommendations for avoiding disturbance at foraging areas and communal roost sites.

The guidelines are intended primarily as a tool for landowners and planners who seek information and recommendations regarding how to avoid disturbing the bald eagle. While the guidelines themselves are not law, they are intended to help avoid violations of the law. Additionally, the guidelines will help ensure that the bald eagle population will continue to be sustained.

Migratory Bird Treaty Act
The bald eagle is a designated migratory bird under the MBTA,20 which implements treaties and conventions between the United States and Canada, Mexico, Japan, and the former Soviet Union. The MBTA provides that it is unlawful to pursue, hunt, take, capture, or kill; attempt to take, capture, or kill; possess, offer for sale, sell, offer to barter, barter, offer to purchase, purchase, deliver, or cause to be shipped, exported, imported, transported, carried, or received any migratory bird part, nest, egg, or product, manufactured or not. Therefore, through the MBTA, a lesser degree of protection is also provided to bald eagle habitat. A modification to habitat that directly takes or kills a bald eagle would result in a violation of the MBTA.21 For example, felling a tree with a nest containing chicks would be a violation of the MBTA.

Delisting in Florida
Florida supports 11 percent of the nesting population of bald eagles in the lower 48 states, making the maintenance of a stable bald eagle population in Florida critically important. Only Alaska and Minnesota have more nesting bald eagles.22

The Florida Fish and Wildlife Conservation Commission’s (FWC) listing process is set forth in Rule 68A-27.0012 of the Florida Administrative Code. In July 2002, the FWC was petitioned to reevaluate the status of the bald eagle as a threatened species pursuant to Rule 68A-27.004 of the Florida Administrative Code. Action did not occur due to a listing moratorium which was in effect until April 2005.

In June 2005, the FWC approved the establishment of a biological review panel to assess the eagle’s population and distribution data against species-imperilment criteria. The panel determined that the bald eagle no longer met the criteria for state listing at any level, but suggested that the protection of nesting habitat was necessary to sustain the recovery of the bald eagle.23 The panel’s recommendation to delist the bald eagle was based upon the following biological data:

1) bald eagles occur throughout the state; 2) the population does not experience extreme fluctuations in distribution or numbers; 3) the estimated number of adults has increased more than 300% during the past three eagle generations (defined. . . as 24 years); and 4) the population is not projected to experience significant declines over the next 24 years.24

FWC Bald Eagle Management Plan
On April 9, 2008, the FWC adopted The Bald Eagle Management Plan and Rule 68A-16.002. The rule provides in part that:

1) No person shall take, feed, disturb, possess, sell, purchase or barter, or attempt to engage in any such conduct, any bald eagle or parts thereof, or their nests or eggs, except:
a) As authorized from the executive director by specific permit, which will be issued based upon whether the permit would advance the management plan goal and objectives;
b) When such conduct is consistent with the FWC Eagle Management Guidelines;
c) When such conduct is consistent with a previously issued permit, exemption, or authorization issued by FWC under imperiled species regulations (Chapter 68A-27, F.A.C.) or by the USFWS under the Endangered Species Act (U.S.C. 1531 et seq.).

The rule establishes prohibitions, provides exceptions, defines the term “disturb” in a manner that is consistent with the federal definition and adopts by reference the “Permitting Framework April 2008” section of the plan. The prohibitions require that no person attempt to or actually take, feed, disturb, possess, sell, purchase, or barter any bald eagle or parts, nest, or eggs.

The plan is intended to assist in the maintenance of a stable or increasing population of bald eagles in Florida. The USFWS Bald Eagle Management Guidelines served as the basis for FWC Eagle Management Guidelines found in the plan.25

The plan proposes the continued regulation of nesting habitat during the five years after delisting. The plan provides that five years after approval, the FWC and stakeholders will re-evaluate the biological status of the bald eagle in Florida. If nest monitoring data suggests modifications are appropriate, then the guidelines may be revised at that time.

The plan establishes the framework necessary for the conservation and management of bald eagles in Florida and the eagles’ continued recovery. The focus of the plan is the continued protection through “science-based management, regulation, public education, and law enforcement” in order to prevent a decline of ten percent or more that could result in a relisting effort.26 To this end, the plan sets forth four conservation objectives that have been met and should be maintained. These include the maintenance of a minimum of 1,020 nesting territories per year over the next 24 years; maintenance of an average of 68 percent of the nesting territories producing at least one nestling per year; maintenance of an average reproductive success of 1.5 fledglings per active nest; and the maintenance of the current area of occupancy and extent of occurrence of eagles statewide. The intent of the FWC is for the management plan to be compatible with BGEPA and the associated National Bald Eagle Management Guidelines.27

The Bald Eagle Management Permitting Framework
The Permitting Framework of the Bald Eagle Management Plan is incorporated into Rule 68A-16.002(4) of the Florida Administrative Code. It applies to all activities within 660 feet of any active or alternate bald eagle nest and it does not apply to lost or abandoned nests.28 The permitting framework clarifies the type of activities that are not likely to result in a take or disturbance of bald eagles and activities for which permits are available.

For other activities, a FWC eagle permit is available. A FWC eagle permit is not necessary when the proposed activity is more than 660 feet from a bald eagle nest; the activity is temporary in nature and will be conducted outside the nesting season;29 or the activity will follow the eagle management guidelines contained in the plan. The FWC will not issue citations or seek prosecution if the activity is conducted consistent with the FWC Eagle Management Guidelines, even if the activity results in a take or disturbance of a bald eagle.30 A FWC eagle permit is not required for any particular activity occurring within 660 feet of a nest; however, if an individual is unable to follow the FWC eagle management guidelines of the plan, the permit can avoid liability for the take or disturbance caused by the activity. The permit will only be issued when acceptable minimization and conservation measures are provided as permit conditions.

Water Management District Rules
The water management districts are currently proposing to revise their rules to reflect actions by FWC.31 The water management districts plan to continue to provide special protection for the bald eagle nesting habitat. Although the bald eagle will be removed from the water management districts’ rules as a threatened species, continued protection is proposed to be accomplished by amending the water management district rules containing the definition of “listed species” to include the bald eagle under the BGEPA.

Conclusion
The recovery of the bald eagle has been dramatic. While this recovery justified delisting under the ESA, wise public policy continues to protect the eagle under the BGEPA, the
MBTA, and state law. The primary effect of ESA delisting is that federal agencies will no longer be required to consult under §7 of the ESA and a private right of action no longer exists. Continued protection under federal and state law is necessary in order to assure the maintenance of a stable and hopefully increasing population of the bald eagle. A reasonable framework for the continued conservation and protection of the bald eagle in Florida has been provided in both the USFWS Bald Eagle Management Guidelines and the FWC Eagle Management Guidelines.

1 Florida Fish and Wildlife Conservation Commission, Bald Eagle Management Plan at 3 (2008).

2 The delisting goal was 4,000 breeding pairs in the lower 48 states. Endangered and Threatened Wildlife and Plants, 72 Fed. Reg. 37,346; 37,349 (July 9, 2007), 50 C.F.R., pt.17.

3 Endangered Species Act of 1973, as amended, Pub. L. No. 94-325 90 Stat. 724 (1976); Pub. L. No. 94-359, 90 Stat. 911 (1976); Pub. L. No. 95-212, 91 Stat. 1493 (1977); Pub. L. No. 95-632, 92 Stat. 3751 (1978); Pub. L. No. 96-159, 93 Stat. 1225 (1979); Pub. L. No. 97-304, 96 Stat. 1411 (1982); Pub. L. No. 98-327, 98 Stat. 270 (1984); Pub. L. No. 100-478, 102 Stat. 2306 (1988); Pub. L. No. 100-653, 102 Stat. 3825 (1988); and Pub. L. No. 100-707, 102 Stat. 4689 (1988), codified at 16 U.S.C. §1531, 50 C.F.R., pt. 17, et seq. In 1978, the USFWS listed the bald eagle as endangered or threatened in the lower 48 states.

4 For purposes of the final rule delisting the bald eagle, foreseeable was defined as 30 years. Under the Endangered Species Act, a threat analysis is used that includes the following five factors: the present or threatened destruction, modification, or curtailment of habitat and range; over utilization for commercial, recreational, scientific, or educational purposes; disease or predation; inadequacy of existing regulatory mechanisms; and other natural or man-made factors affecting the species’ continued existence. Pursuant to 50 CFR 424.11(d), the factors that must be evaluated for delisting are 1) the species is extinct; 2) the species has recovered and is no longer endangered and threatened; and/or 3) the original scientific data used for classification was in error. Endangered and Threatened Wildlife and Plants, 50 C.F.R., pt. 17.

5 Bald Eagle Protection Act of 1940, ch. 278, 54 Stat. 250 (1940) (16 U.S.C. §668-668d) as amended by Pub. L. No. 86-70, 73 Stat. 143 (1959); Pub. L. No. 87-884, 76 Stat. 1346 (1962); Pub. L. No. 92-535, 86 Stat. 1064 (1972); and Pub. L. No. 95-616, 92 Stat. 3114 (1978).

6 Migratory Bird Treaty Act, 16 U.S.C. §703-712; 50 C.F.R., pt. 21. The Migratory Bird Treaty Act was enacted in 1918. A 1972 agreement, which supplemented one of the bilateral treaties underlying the MBTA, expanded the scope to cover bald eagles and other raptors.

7 50 C.F.R., pt. 17.

8 On October 6, 2004, the USFWS received a petition from the Center for Biological Diversity and Maricopa Audubon to reclassify the Sonoran Desert bald eagle population found primarily in central Arizona as a distinct population segment, with a requested elevation to endangered status and designation of critical habitat. On August 30, 2006, the USFWS denied the petition concluding that it did not contain substantial scientific data to warrant the requested actions. The USFWS found that it was not demonstrated that the population was a distinct population segment, discrete from other members of its species. 71 Fed. Reg. 5149 (Aug. 30, 2006). On January 5, 2007, the petitioners challenged the USFWS decision in the U.S. District Court for the District of Arizona. On March 6, 2008, the court found actions of the USFWS to be arbitrary and capricious and ordered the USFWS to conduct a status review of the population in the Sonoran Desert to determine if status as a distinct population is warranted as threatened or endangered and ordered the USFWS to issue a finding by December 5, 2008. In response to the order, the USFWS will publish an emergency interim rule in the Federal Register at 50 CFR 17.11 to designate the Sonoran Desert bald eagle as threatened in accordance with the Endangered Species Act. The emergency interim rule will be effective until the USFWS renders a new final determination on the status of the Sonoran Desert bald eagle or the court order is stayed or reversed in any subsequent proceeding. News Release, U.S. Fish and Wildlife Service, U.S. Fish and Wildlife Lists the Desert Bald Eagle as Threatened Under the Endangered Species Act (March 18, 2008), www.fws.gov/southwest/es/arizona/. See Center for Biological Diversity v. Kempthorne, No. CV 07-0038-PHX-MHM, 2008 U.S. Dist. LEXIS 17517 (D. Az. Mar. 5, 2008).

9 Endangered and Threatened Wildlife and Plants, 72 Fed. Reg. 37,346, 37,359 (July 9, 2007), 50 C.F.R., pt.17.

10 Id.

11 Id.

12 16 U.S.C. §668(c).

13 16 U.S.C. §§1532(19) and 668(c).

14 Contoski v. Scarlett, No. 05-2528 (JRT/RLE), slip op. at 5-6 (D. Minn, Aug 10, 2006).

15 16 U.S.C. §668(b).

16 Endangered and Threatened Wildlife and Plants, 72 Fed. Reg. 31,132; 31,139 (June 5, 2007) (to be codified at 50 C.F.R., pt. 22.3).

17 Id. at 31,132; 31,137.

18 Id. at 31,132; 31,136.

19 National Bald Eagle Management Guidelines, 72 Fed. Reg. 31,156 (June 5, 2007) (codified at 50 C.F.R., pt. 22).

20 16 U.S.C. §§703-712.

21 16 U.S.C. §7039a.

22 Bald Eagle Management Plan at 4.

23 Id. at 3.

24 Id.

25 Id. at 16.

26 Id. at 3.

27 Id.

28 An active eagle nest shows evidence of breeding by a bald eagle pair during the current or most recent nesting season. An alternate nest has been used for nesting during the past five nesting seasons, but was not used during the current or most recent nesting season. An abandoned nest has not been used for nesting for more than five consecutive nesting seasons. Bald Eagle Management Plan at 22.

29 The bald eagle nesting season in Florida is defined as October 1 to May 15. Bald Eagle Management Plan at 2.

30 Bald Eagle Management Plan, p. 23.

31 Section 4.2.7, Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District, incorporated by reference in Fla. Admin. Code R. 40E-4.091; Section 12.2.7, Applicant’s Handbook — Management and Storage of Surface Waters, St. John’s River Water Management District, incorporated by reference in Fla. Admin. Code R. 40C-4.091; Section 12.2.7, Environmental Resource Permit Applicant’s Handbook, Suwannee River Water Management District, incorporated by reference in Fla. Admin. Code R. 40B-400.091; Section 3.2.7, Environmental Resource Permitting Information Manual Part B, Basis of Review, Environmental Resource Permit Applications Within the Southwest Florida Water Management District, incorporated by reference in Fla. Admin. Code R. 40D-4.091.

Susan Roeder Martin is a senior specialist attorney with the South Florida Water Management District. Ms. Martin graduated from the University of Florida College of Law with honors. She received her Bachelors of Science degree from Florida Atlantic University. Ms. Martin is board certified in state and federal government and administrative practice.

This column is submitted on behalf of the Environmental and Land Use Law Section, Gary K. Hunter, chair, and Gary Oldehoff, editor.

Environmental & Land Use Law