Update on Bald Eagle Protection Requirements Under Applicable Laws and Regulations Post Endangered Species Act (ESA) Delisting

UNITED STATES DEPARTMENT OF THE INTERIOR
BUREAU OF LAND MANAGEMENT
WASHINGTON, D.C. 20240
http://www.blm.gov

August 30, 2007

In Reply Refer To:
6500 (230) P

EMS TRANSMISSION 09/11/2007
Information Bulletin No. 2007-107

To: AFOs and WO Officials

From: Assistant Director, Renewable Resources and Planning

Subject: Update on Bald Eagle Protection Requirements Under Applicable Laws and Regulations Post Endangered Species Act (ESA) Delisting

Delisting and Clarification

On July 9, 2007, it was announced that the bald eagle has been removed from the list of threatened and endangered species.
In June, the U.S. Fish and Wildlife Service (FWS) clarified its regulations implementing the Bald and Golden Eagle Protection Act (Eagle Act) and published a set of National Bald Eagle Management Guidelines. The measures are designed to give landowners and others clear guidance on how to ensure that actions they take on their property are consistent with the Eagle Act and the Migratory Bird Treaty Act (MBTA). In addition, the FWS is accepting public comments on a proposal to establish a permit program under the Eagle Act that would allow a limited take of bald and golden eagles. Any take authorized would be consistent with the purpose of the Eagle Act, ensuring eagle populations remain healthy and sustainable.
The Eagle Act, originally passed in 1940, prohibits the take, possession, sale, purchase, barter, offer to sell, purchase, or barter, transport, export or import, of any bald or golden eagle, alive or dead, including any part, nest, or egg, unless allowed by permit (16 U.S.C 668(a); 50 CFR 22). “Take” is defined as “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” a bald or golden eagle. The term “disturb” under the Eagle Act was recently defined via a final rule published in the Federal Register on June 5, 2007 (72 Fed. Reg. 31332). “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.
In addition, MBTA provisions apply to the bald eagle, but the Eagle Act is now the most protective statute of the bald and golden eagles.
BLM Policy and National Environmental Policy Act (NEPA)
The FWS's rationale for delisting the bald eagle placed considerable emphasis on the proportion of the bald eagle population currently nesting on federally controlled lands, and the existing protections afforded them. As such, those existing protection measures in place should be maintained. Development of future protections, if appropriate, should be consistent with the Eagle Act, MBTA, and the BLM Manual 6840.
Criteria contained in BLM Manual 6840 is consistent for treatment of bald and golden eagles as special status species in NEPA and land use planning consideration. Where found, bald and golden eagles should continue to be addressed in NEPA and planning documents as special status species. “Take” and “Disturb” avoidance as defined above and outlined in the National Bald Eagle Management Guidelines at http://www.fws.gov/migratorybirds/issues/BaldEagle/NationalBaldEagleManage mentGuidelines.pdf or other guidelines should be the first consideration of every proposed action or alternative in NEPA documents and land use plans. Where “Take” cannot be avoided, project proponents will be required to enter into the FWS take permit application process.
Monitoring
Post-delisting monitoring is outlined in the Draft Post De-Listing Monitoring Plan for the bald eagle at http://www.fws.gov/migratorybirds/issues/BaldEagle/PostDelistingMonPlan.pdf.
The plan, though still under review, outlines a twenty-year timeframe of post delisting monitoring that requires coordination with state, tribal, Federal agencies and other cooperators to make the plan successful. The FWS regional coordinators will work with BLM where appropriate to coordinate monitoring where needed on public lands.
Please contact Geoff Walsh, Wildlife Biologist at (202) 452-5048 if you have any questions or need additional clarification.

Signed by:
Authenticated by:
Todd E. Christensen

Robert M. Williams
Acting, Deputy Assistant Director
Division of IRM Governance,WO-560
Renewable Resources and Planning