U.S. Fish And Wildlife Service FINAL ENVIRONMENTAL .
U.S. Fish and Wildlife ServiceFINAL ENVIRONMENTAL ASSESSMENTProposal to Permit Take as Provided Under theBald and Golden Eagle Protection ActDIVISION OF MIGRATORY BIRD MANAGEMENT
FINAL ENVIRONMENTAL ASSESSMENTProposal to Permit TakeProvided Under the Bald and Golden Eagle ProtectionActRESPONSIBLE AGENCYDepartment of the InteriorU.S. Fish and Wildlife Service1849 C Street, NWWashington, D.C. 20240-0001RESPONSIBLE OFFICIALRowan Gould, Acting DirectorFOR FURTHER INFORMATION CONTACTDiana M. Whittington, Wildlife Biologist,or George Allen, Chief,Branch of Policy, Permits and RegulationsDivision of Migratory Bird Management4401 North Fairfax Drive, Mail Stop 4107Arlington, Virginia 22203-1610703-358-1714April 2009
Summary The U.S. Fish and Wildlife Service has removed the bald eagle(Haliaeetus leucocephalus) from the list of threatened and endangeredspecies under the Federal Endangered Species Act in all areas except therange of the Sonoran Desert bald eagle population, which remainsprotected as a threatened species. The Bald and Golden Eagle ProtectionAct (Eagle Act) remains as the primary law protecting bald eagles in otherparts of its range and the golden eagle (Aquila chrysaetos). The Eagle Act authorizes the Secretary to permit take of eagles“necessary for the protection of other interests in any particular locality.”In addition, there may be instances where take of eagle nests isnecessary to protect public safety and welfare. In this assessment we consider three alternatives for regulationsestablishing new take permits under the Eagle Act, and authorizing take ofeagle nests where necessary to protect public safety and welfare. The assessment looks at potential impacts that could result from theimplementation of the proposed regulation or alternatives to the proposedregulation within the context of other take already authorized or otherwiseoccurring. This assessment also summarizes the biological foundation for definingtake thresholds for bald eagles and golden eagles. Under the preferredalternative, the Service will define thresholds for take by adapting apublished model used in other recent raptor regulations. The thresholdswill guide annual take limits on a regional basis to ensure that we areconsistent with the goal of stable or increasing breeding populations. The majority of authorized take will be non-lethal and will simply allowactivities to disturb eagles in a way that will result in a loss or reduction ofone year’s productivity by a nesting pair. On-the-ground information and conditions will guide the actual amount oftake authorized, which may be less than modeled, as long as the totaldoes not exceed the modeled thresholds. Except for safety emergencies, the rule will give priority in permitting toNative American use for rites and ceremonies that require eagles be takenfrom the wild if requests for permits will likely approach the annualthreshold. The next permit priorities will be for activities necessary toensure public health and safety, renewal of programmatic nest-take
permits, and Non-emergency activities necessary to ensure public healthand safety, and (for inactive golden eagle nests only) resourcedevelopment or recovery operations (§ 22.25). The Service’s preferred alternative, number 3, will: (1) authorizedisturbance take of eagles; (2) authorize removal of eagle nests wherenecessary to protect public health and safety; and (3) provide for permitsfor take resulting in mortality in some limited circumstances. It willauthorize take permits for both bald eagles and golden eagles. Alternative 3 is also the environmentally-preferred alternative. It isexpected to have the least adverse impact on the human environment,with negligible effects on the natural and physical environment and theleast adverse impact along with the most beneficial impacts to thesocioeconomic environment. The criteria for issuance of permits would initially limit their issuance toonly 5% of the Maximum Sustainable Yield for bald eagles, which isconsistent with the recommendations in published literature for take ofraptors where population monitoring may be limited or there are concernsabout the vital rates for a species The best available data we have for golden eagles indicate modestdeclines in the four BCRs that constitute 80 percent of its range in thelower 48 states. Estimates of population size in Alaska are coarse, basedupon even fewer data sources than in the lower 48 states, and juvenilesurvival may be far lower, so management would therefore need to beconservative. In addition, McIntyre et al. (2008) suggested thatconservation strategies for migratory golden eagles require a continentalapproach. Therefore, until we have additional data to show thatpopulations can withstand additional take, of those authorized under thenew rule, we will only consider issuance of permits for safety emergenciesand programmatic and other permits that will result in a net reduction intake or a net take of zero for golden eagles. We will continue to issuehistorically-authorized take permits under existing permit types at the levelof take carried out under those permits (average over 2000-2007).
Table of ContentsChapter 1: Purpose and Need for the Action . 11.1 Introduction .11.2 Current Proposal.31.3 Purpose and Need for Action.31.4 Authorities .41.5 Scope of Analysis.101.6 Decisions to be Made .12CHAPTER 2: ALTERNATIVES. 142.1 Introduction .142.2 Management Common to All Alternatives .172.3 Alternative 1– No Action: Permit Existing and Future Take Authorized Under ESA: .172.4 Management Common to Both Action Alternatives: Thresholds for Permits, Management byPopulation Regions for Bald Eagles, by Bird Conservation Regions for Golden Eagles.182.5 Alternative 2– Eagle Take Permits, Structured Allocation Authorized, Nest Take for Public Healthand Safety, and Programmatic Disturbance.362.6 Alternative 3– Alternative 2 Plus Take Resulting in Mortality (TRM) Individual and ProgrammaticOption (Preferred Alternative and Environmentally-Preferred Alternative) .412.7 Alternatives Considered but Eliminated from Detailed Study .47CHAPTER 3: AFFECTED ENVIRONMENT. 493.1 Introduction .493.2 General Information Regarding Raptor Population Biology .493.3 Bald Eagle .503.4 Golden Eagle .523.5 Biological and Physical Environment .553.6 Eagle Mortality Associated with Human Activities .593.7 Currently-Authorized Take of Eagles .633.8 Societal Issues .703.9 Summary .73CHAPTER 4: ENVIRONMENTAL CONSEQUENCES OF THE ALTERNATIVES . 794.1 Introduction .794.2 Management Common to All Alternatives .794.3 Alternative 1– No Action: Permit Existing and Future Take Authorized Under the ESA.804.4 Management Common to Both Action Alternatives.824.5 Alternative 2– Eagle Take Permits, Structured Allocation Authorized, Nest Take for Public Healthand Safety, and Programmatic Disturbance.92
4.7 Cumulative Effects.984.8 Trans-boundary Effects of the Alternatives .106PREPARERS.107REFERENCES. 111APPENDIX A Native American Traditional Cultural Properties. 122Appendix B Tribal Status, State Status and NatureServe Conservation Status . 123APPENDIX C Methods for Determining Eagle Take Thresholds. 128APPENDIX D Millsap, B.A. and G.T. Allen. 2006 . 148APPENDIX E Draft Reporting Forms. 158APPENDIX F Projected Change in Total Population for States Having Large Bald EaglePopulations, 2000 to 2030 . 163Appendix G Counties among the 100 Fastest Growing that Also have Bald Eagle BreedingSites. 164Appendix H Eagle/Aircraft Collisions . 165Appendix I Existing Eagle Permits. 167Appendix J Activities for Which Service Regions Anticipate Requests for PermitsDeveloped Under This Proposal. 172Appendix K Comments on Draft EA with Service Responses . 174
Chapter 1: Purpose and Need for the Action1.1 IntroductionThis Final Environmental Assessment (FEA) has been prepared to analyzethe U.S. Fish and Wildlife Service’s (Service) proposal to create a permit orpermits under the Bald and Golden Eagle Protection Act (16 U.S.C. 668 et seq.)(Eagle Act) allowing the take of bald eagles and golden eagles and their nestswhen necessary to protect interests in particular localities. This FEA is ananalysis of potential impacts that could result from the implementation of theproposed regulation or alternatives to the proposed regulation within the contextof other take already authorized or otherwise occurring. It is to assist us inensuring compliance with the National Environmental Policy Act of 1969 (42U.S.C. 4321 et seq.) (NEPA), and in making a determination as to whether any“significant” impacts could result from the analyzed actions. “Significance” underNEPA is defined by regulation at 40 CFR 1508.27, and requires short-term andlong-term consideration of both the context of a proposal and its intensity, andwhether the impacts are beneficial or adverse. An EA provides evidence fordetermining whether to prepare an Environmental Impact Statement (EIS) or astatement of “Finding of No Significant Impact” (FONSI). If the decision makerdetermines that this project has “significant” impacts following the analysis in theEA, then an EIS would be prepared for the project. If not, a FONSI would besigned for the EA approving the alternative selected and a Set of Findings maybe prepared.As with any NEPA process, if all components have undergone equal analysis,the final proposal may include all or some components of a single alternative.Or, it may include a combination of components from more than one alternative.1.1.1 BackgroundIn 2007, the Service removed the bald eagle from the list of threatened andendangered species under the Endangered Species Act (16 U.S.C. 1531 et seq.)(ESA) (72 FR 37345, July 9, 2007). However, on March 6, 2008, the federaldistrict court for the District of Arizona enjoined removal from ESA protection ofthe population of “Desert bald eagles” of “the Sonoran Desert region of theAmerican southwest” pending resolution of a 90-day petition to list a distinctpopulation segment of bald eagles in that region. Ctr. for Biological Diversity v.Kempthorne, 2008 U.S. Dist. LEXIS 17517 at 42 (D. Ariz. 2008). Therefore, thebald eagle remains protected under both the Eagle Act and the ESA in theSonoran Desert region as a threatened species pending the outcome of thatcase. The Bald and Golden Eagle Protection Act remains as the primary lawprotecting bald eagles outside the range of the Sonoran Desert population in theU.S. and golden eagles throughout their U.S. range. The Eagle Act would alsobecome the primary law protecting bald eagles within the range of the SonoranDesert population should the Service delist that population in the future. The1
Eagle Act prohibits take of bald eagles and golden eagles and provides astatutory definition of “take,” which includes activities that “disturb” eagles. Baldeagles and golden eagles are also protected under the Migratory Bird Treaty Act(MBTA) (16 U.S.C. 703–712).To provide a consistent framework in which to implement the Eagle Act afterbald eagle delisting, on June 5, 2007, the Service clarified its regulationsimplementing the Bald and Golden Eagle Protection Act. (72 FR 31131). Themodifications to implementing regulations for the Eagle Act established aregulatory definition of “disturb,” a term specifically prohibited as “take” by theEagle Act. As per the regulatory definition, disturb meansto agitate or bother a bald or golden eagle to a degree that causes, or islikely to cause, based on the best scientific information available, injury toan eagle; a decrease in its productivity, by substantially interfering withnormal breeding, feeding, or sheltering behavior; or nest abandonment, bysubstantially interfering with normal breeding, feeding, or shelteringbehavior.As stated, the regulatory definition of “disturb” also applies to golden eagles.Also on June 5, 2007, the Service issued a Notice of Availability of theNational Bald Eagle Management Guidelines (Guidelines). (72 FR 31156).These guidelines provide a roadmap for landowners and project proponentsseeking to avoid violating the Eagle Act while conducting activities near eagles.For example, the guidelines recommend buffers around nests to screen nestingbald eagles from noise and visual distractions caused by human activities. Weintend the clarifications and the guidelines give landowners, and others, guidancein ensuring that actions they undertake are consistent with the Bald and GoldenEagle Protection Act.When Congress enacted the Eagle Act in 1940, it intended the Act to be theprimary law protecting eagles from extinction, and as such it provided a broadprohibition in its definition of “take” by defining it to include “pursue, shoot, shootat, wound, kill, capture, trap, collect, molest or disturb.” (Pub. L. No. 76-567, §4,54 Stat. 250, 251 (1940)). Congress later added “poison” to the definition. (Pub.L. No. 92-535, §4, 86 Stat. 1064, 1065 (1972)).However, the Eagle Act also delegates to the Secretary the ability to permittake of eagles for several reasons, including when “necessary for the protectionof “other interests in any particular locality” after determining the take is“compatible with the preservation of the bald eagle or golden eagle.” In addition,there may be instances where take of eagle nests is necessary to eliminate ahazard to human or eagle safety. Most populations of the bald eagle haverecovered sufficiently to be removed from the ESA list, while supporting takeduring recovery. Therefore, we can logically assume populations can continue tosustain limited take.2
1.2 Current ProposalThe Service proposed new regulations to amend the current regulations at 50CFR 22.26 and 22.27 as follows: to (1) establish an eagle take permit under theEagle Act; (2) authorize take of eagle nests where necessary to protect publichealth and safety, (3) authorize take resulting in mortality (TRM) 1 under limitedcircumstances; and (4) establish new programmatic permits under the Eagle Actfor disturbance, airfield eagle hazards, nest removal from power lines, and TRM(72 FR 31142, June 5, 2007). The take permit provisions will primarily authorizedisturbance. However, the regulations analyzed in this document will alsoprovide for authorization of other types of take of eagles under limitedcircumstances.For example, take might be authorized, in the areas meeting prescribedstandards, for a utility that does all of the following: establishes a mortality baseline through estimates or a samplingscheme; employs the best available techniques and mutually-approvedstandard practices for minimizing eagle mortalities; undertakes a system-wide risk analysis and retrofits a significantportion of hazardous locations within a reasonable time frame; implements an effective monitoring program and reports eaglemortality to the Service, uses only avian-safe practices on all new infrastructure in areasdetermined to be high-risk for eagles; and demonstrates it has eliminated eagle mortality except that which isunavoidable.To prevent collisions, utilities might also need to ensure transmission lines,distribution lines and towers located in known eagle concentration areas,foraging areas, or nesting areas, have visual markers on the wires. Becauseeven best practices cannot ensure that eagles will not be killed by electrocutionor collision with power lines, the regulation could authorize this type ofunavoidable take by a utility that has met all the requirements above. This is anexample only. The specific requirements listed above may not be applicableshould the Service issue such a permit in the future, but the standards to be metwill be comparable.1.3 Purpose and Need for ActionThe purpose of this regulatory proposal is to: (1) provide authorization for takeof bald eagles and golden eagles “necessary for the protection of “other interestsin any particular locality” as provided for in the Eagle Act, while ensuring it iscompatible with the preservation of the eagles, as mandated by the Eagle Act;1TRM in this document refers to non-purposeful take that would result in mortality, despite allefforts to avoid it. We distinguish this from intentional lethal take permitted under 50 CFR 22.22for Native American religious purposes.3
(2) develop a management system that will simplify complex, long-term-eaglemanagement issues by allowing programmatic approaches; (3) provide aconsistent approach to permitting between Service Regional offices; and (4)make take authorization available for removal of eagle nests where necessary toprotect public health and safety and to protect eagles.For purposes of this action, “compatible with the preservation of the baldeagle and the golden eagle” means consistent with the goal of stable orincreasing breeding populations. Although take thresholds are based on regionalpopulations, the regulation requires the Service to consider additional factors,such as cultural significance, that may warrant protection of smaller and/orisolated populations within a region. In the DEA and notice re-opening of thecomment period on the rule (73 FR 47574, August 14, 2008), to elucidate thestatutory standard of “preservation of the bald eagle or the golden eagle,” weproposed the following terminology: “maintaining increasing or stablepopulations.” We continue to support the essential meaning of that standard, butrecognized that it could be misapplied to constrain any authorization of takebecause any take of a bald or golden eagle by some degree results in apopulation decrease, even if short-term and inconsequential for the long-termpreservation of the species. Thus, if interpreted so narrowly, the word“maintaining” would render us unable to authorize any take. Therefore, we arerevising our interpretation of “preservation of the eagle” to read “consistent withthe goal of stable or increasing breeding populations.” The phrase “consistentwith the goal” will allow take that is compatible with long term stability or growthof eagle populations. Adding the word “breeding” clarifies the significance of thenumber of breeding pairs for maintaining or growing populations, versus floaters(non-breeding adults).Under the Eagle Act as it has been applied to golden eagles, the Servicerelies on enforcement discretion and voluntary cooperation between the Serviceand other agencies and private entities to regulate take of eagles in the absenceof an available permit for non-purposeful take. The resulting case-by-caseenforcement and reliance on voluntary measures to eliminate and reduce takeduring otherwise-legal activities has made it difficult for the Service to ensure thatsuch take is compatible with the preservation of eagles. The Service needs toprovide a uniform legal framework for allowing take of eagles during the conductof otherwise-legal and permitted activities. Creation of a permit or permits that allService Regions can consistently administer will fulfill that need and improve theprotection of eagles. The permit or permits created must be both feasible toimplement and enforceable, and provide for the conservation of both species.1.4 AuthoritiesThe principal Federal authority for the actions analyzed in this FEA is theEagle Act (16 U.S.C. 668–668d). The Service is the Federal agency with primarystatutory authority for the management of bald eagles and golden eagles in the4
United States. Regulations implementing the Eagle Act are in Subparts C & D ofPart 22 of Title 50 of the Code of Federal Regulations.Compliance with Federal Statutes, Regulations, and Orders Relevantto the Alternatives ConsideredThe proposal is in compliance with the following federal statues, regulations,Executive Orders, and Department of the Interior Departmental Policy:Bald and Golden Eagle Protection Act (16 U.S.C. 668 et seq.) (Eagle Act)The Eagle Act provides that the Secretary of the Interior may authorizecertain, otherwise-prohibited activities through promulgation of regulations. TheSecretary is authorized to prescribe regulations permitting the “taking,possession, and transportation of [bald or golden eagles] . . . for the scientific orexhibition purposes of public museums, scientific societies, and zoological parks,or for the religious purposes of Indian tribes, or . . . for the protection of wildlife orof agricultural or other interests in any particular locality,” provided such permitsare “compatible with the preservation of the bald eagle or the golden eagle” (16U.S.C. 668a). In accordance with this authority, the Secretary has previouslypromulgated Eagle Act permit regulations for scientific and exhibition purposes(50 CFR 22.21), for Indian religious purposes (50 CFR 22.22), to takedepredating eagles (50 CFR 22.23), to possess golden eagles for falconry (50CFR 22.24), and for the take of golden eagle nests that interfere with resourcedevelopment or recovery operations (50 CFR 22.25). This rulemakingestablishes permit regulations to authorize non-purposeful eagle take “for theprotection of . . . other interests in any particular locality.”The analysis in this FEA evaluates whether the proposed permits and theirimplementation, including limits on annual take, are compatible with thepreservation of the bald eagle and the golden eagle.National Environmental Policy Act of 1969, as amended (NEPA) (42 U.S.C.4321 et seq.)Agencies must complete environmental documents pursuant to NEPA beforeimplementing Federal actions. NEPA requires careful evaluation of the need foraction, and that Federal actions are considered alongside all reasonablealternatives, including the “No Action Alternative.” NEPA also requires theaction agency to consider the potential impacts on the human environment ofeach alternative. The decision maker(s) must consider the alternatives andimpacts prior to implementation, and must inform the public of thesedeliberations.The Service has prepared this FEA in compliance with NEPA; the President’sCouncil for Environmental Quality (CEQ) Regulations, (40 CFR 1500–1508); andthe NEPA-compliance requirements in the Department of the Interior’sDepartmental Manual (DM) and the Fish and Wildlife Service’s Manual (FW) (516DM 8, 550 FW 1-3, 505 FW 1-5).5
Pursuant to NEPA and CEQ regulations, this FEA documents the analysis ofa proposed Federal action, and all reasonable alternatives, including the “NoAction” alternative. The FEA evaluates impacts anticipated from all alternatives;informs decision-makers and the public; and serves as a decision-aidingmechanism to ensure that NEPA and CEQ regulations have been incorporatedinto Federal agency planning and decision-making. The Service prepared thisFEA using an interdisciplinary approach to address all aspects of the natural andsocial sciences relevant to the potential impacts of the project. The FEAanalyzes the direct, indirect, and cumulative effects of the proposed action.Endangered Species Act of 1973, as amended (ESA) (16 U.S.C. 1531 etseq.)It is Federal policy under the ESA that all Federal agencies shall seek toconserve endangered and threatened species and shall utilize their authorities infurtherance of the purposes of the ESA (§ 2(c)). Action agencies mustimplement section 7 consultations with the Service to ensure that "any actionauthorized, funded, or carried out by such an agency is not likely to jeopardizethe continued existence of any endangered or threatened species or result in thedestruction or adverse modification of habitat of such species. Each agencyshall use the best scientific and commercial data available" (§ 7(a)(2)). Inaddition to the Sonoran Desert population of bald eagles, there may be otherlisted species present when permitted take of eagles will occur. When deemednecessary, each Regional Permit Office may help coordinate intra-Servicesection 7 consultations at the permit stage.Migratory Bird Treaty Act, as amended (MBTA) (16 U.S.C. 703 et seq.)The MBTA provides the Service with the regulatory authority to protectspecies of birds that migrate outside the United States. Individuals of speciesthat do not migrate outside of the United States are also protected with theexception of several introduced, non-native species, including mute swans(Cygnus olor), house sparrows (Passer domesticus), European starlings (Sturnusvulgaris), Eurasian collared-doves (Streptopelia decaocto), and rock pigeons(Columba livia). For eagle take, a separate authorization under the MBTA is notrequired. Many impacts authorized under the ESA that will require Eagle Actauthorization will not “take” eagles under the MBTA because that statute doesnot contain a prohibition against disturbance (without injury) of the birds itprotects. Therefore, activities that disturb an eagle will not require MBTAauthorization unless the activity also results in injury or some other impactprohibited by the MBTA. Even where MBTA take will occur, a separate MBTAauthorization in addition to the Eagle Act authorization is not required because 50CFR 22.11(a) exempts those who hold Eagle Act permits from the requirement toobtain an MBTA permit.6
National Historic Preservation Act of 1966, as amended (NHPA) (16 U.S.C470 et seq.)Section 106 of the NHPA requires Federal agencies to take into account theeffects of their undertakings on historic properties. Federal agencies accomplishthis by following the Section 106 regulations, “Protection of Historic Properties”(36 CFR Part 800). The Section 106 regulations set forth a process by whichagencies: 1) evaluate the effects of any Federal undertaking on historicproperties (properties included in, or eligible for inclusion in, the National Registerof Historic Places (National Register)); 2) consult with State Historic PreservationOfficers (SHPO), Tribal Historic Preservation Officers (THPOs), and otherappropriate consulting parties regarding the identification an
range of the Sonoran Desert bald eagle population, which remains protected as a threatened species. The Bald and Golden Eagle Protection Act (Eagle Act) remains as the primary law protecting bald eagles in other parts of its range and the golden eagle (Aquila chrysaetos). The Eagle Act authorizes the Secretary to permit take of eagles
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