web site analytic

New USFWS Regulations for Eagles

The U.S. Fish and Wildlife Service has implemented a new rule governing the take of bald and golden eagles.  The USFWS has removed the bald eagle from the list of threatened and endangered species under the Federal Endangered Species Act in all areas (except the Sonoran Desert bald eagle population, which remains protected as a threatened species). The Bald and Golden Eagle Protection Act is now the primary law protecting bald and golden eagle populations.  These new regulations define a new Preservation Standard and create some of the most biologically complex and stringent permitting rules for take of any species occurring within the United States.

Three permits will be available: a standard take permit, eagle nest take permit, and a programmatic take permit. Nationwide, the number of take permits is expected to increase from an annual average of 54 authorized under ESA, to 830 eagle act standard permits, 40 nest take permits, and 40 programmatic permits each year. Examples of activities that might constitute potential violations of the Eagle Act and require permits under this new rule to avoid criminal and civil penalties include:

  • Power Utilities - electrocutions from contact with power lines and collisions with lines or wind turbines may kill eagles; nests may need to be removed from power poles to ensure system reliability and safety.
  • Water Agencies – operation of facilities, including associated recreation developments, may disturb eagles.
  • Railroads – train strikes of eagles feeding on carcasses on the tracks.
  • Ports - vessel traffic and/or other port operations may disturb eagles.
  • Highway Departments - construction and maintenance of highways disturbs eagles.
  • Airports - human safety issues may require the removal of eagle nests.
  • Other Development Activities – Almost all new development and human activities within 660 feet of a bald eagle nest.

Major implications of the rule are:

  • All entities whose activities may disturb or incidentally take an eagle or its nest are now required to obtain an Eagle Act permit.
  • The legal (criminal and civil penalties), financial and PR consequences of not complying with the Eagle Act may be severe. For example, for violations of the Eagle Act in Wyoming, PacifiCorp recently was fined $1.4M and required to retrofit all utility lines ($9.1M) that may accidentally kill eagles through electrocutions or collisions, even though the company had an Avian Protection Plan.
  • Unlike the ESA, the Eagle Act has a Preservation Standard that requires any permitted take to maintain a stable or increasing regional population of eagles, and only authorizes take that cannot “practically” be avoided. Mitigation will be required in many cases.
  • To meet the Preservation Standard, the Eagle Act caps the maximum cumulative allowable take from all sources (permitted and unauthorized) to 5% of the estimated regional population and establishes rigid prioritization criteria: issuance of a permit may preclude issuance of other permits of lower priority. Permit renewals receive priority, so competition for permits in some regions is likely. Some populations of golden eagles out West are declining, and permits may not be issued in these regions.
  • Permit implementation guidance for the Eagle Act rule is not yet available, and consistency in the administration of initial permits is uncertain.

Additional information and analysis is available in our whitepaper, Eagle Act - New USFWS Regulations For Eagles. Cardno Cardno ENTRIX has brought together a group of natural resource management professionals to guide our clients through the regulatory and permitting process to ensure legal compliance associated with the procedures. For more information, please contact our Natural Resources Management Team by clicking here.