Volume 25, Number 2    February 6, 2017

Bald and Golden Eagle Rule Finalized by U.S. Fish and Wildlife Service - What It Means For You

Items to remember:
  • Bald Eagle Breeding Season in Virginia and Maryland is from December 15 to July 15.

  • A 660’ management zone surrounds bald eagle nests.

  • The U.S. Fish and Wildlife Service Final Rule, effective January 17, 2017 alters the parameters surrounding take permits.

  • February through the end of March is the preferred time to conduct a bald eagle nest survey.

The bald eagle breeding season began on December 15 and will continue until July 15 in Virginia and Maryland.  The start of the breeding season is a reminder that, when present, active bald eagle nests carry a restriction of allowable activities within the vicinity of the nest.

In addition, the U.S. Fish and Wildlife Service (the Service) published the Final Rule for the Revisions to Regulations for Eagle Incidental Take Permit and the Take of Eagle Nests (Final Rule) on December 16, 2016, which revises the 2009 regulations published for the issuance of permits for “incidental take” (or take that may occur as a result of an activity) of bald and golden eagles under the Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) (the Eagle Act).  This Final Rule was effective January 17, 2017.  

If you are planning to develop land that contains bald eagle habitat, you need to be aware of the federal and state regulations providing protection for these birds.  

It is important to understand the implications of working within a close proximity to bald eagle nests, as both active (nests used for breeding during the current season) and inactive nests are protected by the Service and state agencies.  Wetland Studies and Solutions, Inc. (WSSI) has experience working closely with these agencies to accomplish our client’s project goals while allowing for the conservation of bald eagles.  The revisions included in the Final Rule are applicable to projects ranging in scope from residential homeowners, commercial development and even large-scale wind energy projects.  

photo from U.S. Fish and Wildlife Service

photo from U.S. Fish and Wildlife Service

Under the Eagle Act, it is an illegal action to “take” a bald or golden eagle.  Take is defined as to “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb” a bald or golden eagle.  The Service further defines “disturb” as “to agitate or bother a bald or golden eagle to a degree that causes, or is likely to case, 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 Final Rule published on December 16, 2016 seeks to clarify the permit application process, including monitoring and mitigation, and revises the preservation standard underlying the incidental take permits under the Eagle Act.  The changes in the Final Rule are intended to provide a more efficient and consistent permitting program.  These changes include:

  • An increase in the allowable take of bald eagles from 1,103 eagles annually under the 2009 Eagle Permit Rule to 3,742 bald eagles in the continental U.S. and 3,776 bald eagles in Alaska
  • The two (2) existing take permits (i.e., the standard and programmatic permits) have been consolidated to a single standard permit. 
  • The Service manages bald eagles based on local area populations (LAPs) and larger-scale Eagle Management Units (EMUs) when assessing a project. 
  • The Service must determine that the take authorized by a permit does not exceed 5% of the LAP or that the action remains compatible with the preservation of bald eagles.  
  • The duration of the take permit will be based on the duration of the permitted activities, the level of impacts to eagles, and the nature and extent of mitigation measures incorporated into the terms and conditions of the permit for a maximum duration of no more than thirty (30) years.  
  • Permits with a duration of more than five (5) years will include adaptive management strategies. 
  • Surveying and monitoring permit protocols require an independent consultant conduct the monitoring and report directly to the Service for all permits with a duration of more than five (5) years.  
  • The Service highly recommends the use of a third-party consultant to conduct monitoring for all take permits, regardless of duration.  
  • Compensatory mitigation will be scaled to project impacts and will be required for any permit that authorizes a take that will exceed the applicable EMU take limit.  

As outlined above, the presence of a bald eagle nest can have significant implications on a proposed development plan.  WSSI environmental scientists have extensive experience conducting bald eagle habitat evaluations and surveys.  Additionally, WSSI’s regulatory staff are experienced at guiding landowners and developers through the coordination and permitting process with federal and state agencies.  Early planning and accurate field studies are vital to avoiding scheduling delays, pitfalls, and other penalties that could result from failure to comply with the existing bald eagle regulations.  In our experience, mid-February through the end of March is the preferred time to evaluate whether or not nests are active and to search for bald eagles.  For further information about this topic, or to consult with WSSI regarding bald eagle habitat evaluation or compliance issues on one of your projects, please contact Ben RosnerLauren Shaffer, Christie BlevinsDoug Chapin,  Mike KlebaskoMark Headly, or Dan Lucey.  


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