Legal Bulletins

A version of this article was published in the Baltimore Business Journal on July 16, 2007.

Almost eight years after the U.S. Fish and Wildlife Service (“FWS”) first declared that the bald eagle had recovered to the point that it could be removed from the list of endangered and threatened species, the bald eagle is finally being delisted.  On June 28, 2007, the FWS announced that the bald eagle is being removed from the list of endangered and threatened species.  The final rule formally delisting the bald eagle appeared in the Federal Register on July 9, 2007, and will be effective on August 8, 2007.  Even after the delisting becomes effective, however, the bald eagle will remain protected under the Bald and Golden Eagle Protection Act (“BGEPA”) and other laws.  Developers and landowners should be aware of continued restrictions on activities that could adversely impact bald eagles.

On the verge of extinction less than 40 years ago, the bald eagle has made such a dramatic comeback that it has been celebrated as a true American success story.  When the bald eagle was adopted as our national symbol in 1782, there were as many as 100,000 nesting bald eagles in the lower 48 states.  By 1963, there were less than 500 active nests.  The bald eagle’s decline was caused by a variety of factors including illegal shooting for feathers and trophies, the destruction of its habitat, and most significantly, the widespread use of DDT and other pesticides after World War II.  DDT entered the bald eagle’s food chain and caused its shells to be so thin that they often cracked or failed to hatch.  In 1967, under a predecessor law to the Endangered Species Act of 1973, the bald eagle was officially declared to be an endangered species in areas south of the 40th parallel.

Since 1972 when DDT was banned for most uses, bald eagle populations have steadily increased.  The bald eagle’s dramatic recovery is due to a number of factors including habitat protection, breeding management programs, and the reduction of certain pesticides in the environment such as DDT.  In 1995, the bald eagle’s status was upgraded in the lower 48 states from “endangered” (in danger of extinction) to “threatened” (not immediately in danger of extinction, but likely to become endangered).  Today, there are estimated to be over 10,000 active nests.  As of August 8, 2007, the bald eagle will no longer appear on the list of endangered and threatened species.

The FWS originally proposed to remove the bald eagle from the list of endangered and threatened species in 1999, but delayed issuing a final rule in order to develop new regulations and management guidelines to protect the bald eagle after delisting.  Although the bald eagle will no longer be protected under the Endangered Species Act, it will continue to be protected under the BGEPA and the new regulations promulgated by the FWS under the BGEPA.  Originally enacted in 1940, the BGEPA prohibits the unauthorized “taking” of bald eagles or their parts, eggs, or nests.  On June 5, 2007, the FWS issued its final rule defining the term “disturb” as a prohibited “take” under the BGEPA; published bald eagle management guidelines to help landowners avoid violating the BGEPA; and proposed a new permit program to authorize the take of eagles where disturbing an eagle is unavoidable.

The BGEPA broadly defines the term “take” to include “pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, molest or disturb.”  The term “disturb” is not defined in the BGEPA, but FWS has now defined the term in a regulation as “to agitate or bother” an eagle to a degree that “causes, or is likely to cause,” (1) injury; (2) decrease in productivity by substantially interfering with normal breeding, feeding, or sheltering habits; or (3) nest abandonment by substantially interfering with normal breeding, feeding, or sheltering habits. 

On June 5, 2007, in anticipation of the delisting, the FWS also proposed new permit regulations to authorize the take of bald eagles in certain circumstances.  The proposed permit is intended to be similar to the incidental take permit under the Endangered Species Act.  The permit would protect the permit holder from liability if an eagle is unintentionally harmed in the course of otherwise lawful activities and the permittee agrees to certain mitigation measures.  The proposed regulations would also establish a permit to authorize the intentional take of eagle nests where their location poses a risk to human safety or to the eagles themselves, such as in the vicinity of an airport.  FWS is accepting comments on the proposed regulations until September 4, 2007.

The FWS also recently issued National Bald Eagle Management Guidelines (“Guidelines”). The Guidelines themselves are not law, but are intended as a tool to provide information to landowners and developers regarding how to avoid adverse impacts to eagles.  The Guidelines generally recommend maintaining a buffer zone around an eagle’s nest and restricting certain activities during the nesting period when the eagles are most sensitive to human activity.  The amount of buffer recommended depends on the type of activity, visibility from the nest, and time of year.  In general, the FWS recommends that most building construction not occur within 660 feet of a nest (330 feet if the construction will not be visible from the nest) and not occur during the nesting season.

Although the Guidelines provide specific recommendations, there may be some flexibility to depart from the Guidelines in particular circumstances.  Not all eagles react to human activity in the same way and, in fact, some eagles can become accustomed to and learn to tolerate certain activities.  For example, bald eagles in the Chesapeake Bay area nest from approximately mid-December to approximately mid-June; however, the FWS and State Department of Natural Resources may allow some construction activity to begin as early as mid-April after the eggs hatch (the least sensitive time during the nesting season) where a particular eagle had previously exhibited tolerance for nearby construction activities.

Landowners or developers with questions regarding activities in the vicinity of a bald eagle nest should contact the State Department of Natural Resources, the Annapolis office of the FWS, or experienced environmental counsel.