New language for eagles

The U.S. Fish and Wildlife Service today announced final modifications to a regulatory definition of the word disturb under the Bald and Golden Eagle Protection Act, the primary federal law that will be used to manage Bald Eagles if they are removed from protection under the Endangered Species Act as expected later this summer.

The final definition:

“Disturb – 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.

The word was the focus of considerable controversy in February 2006, when FWS proposed to define it this way: "to agitate or bother a bald or golden eagle to the degree that interferes with or interrupts normal breeding, feeding, or sheltering habits, causing injury, death, or nest abandonment."

The proposed definition "required proof of a dead or injured animal" to show a violation of the eagle act, said John Kostyack, director of wildlife conservation campaigns for the National Wildlife Federation. "That problem has essentially been fixed with the addition of the words likely to cause, because it addresses a developer's actions and not simply the outcomes."

The earlier definition also focused narrowly on actions that would cause nest abandonment, but today's revision goes further. The new phrase "a decrease in its productivity" protects an eagle's health, ability to forage, eggs, chicks, and other measurable losses. The 34-page final rule says:

"In addition to immediate impacts, this definition also covers impacts that result from human-caused alterations initiated around a previously used nest site during a time when eagles are not present, if, upon the eagle's return, such alterations agitate or bother an eagle to a degree that injures an eagle or substantially interferes with normal breeding, feeding, or sheltering habits and causes, or is likely to cause, a loss of productivity or nest abandonment.”

Dale Hall, director of FWS, said during a conference call with reporters that protections for the bird under the new definition "are very close to the same standards" as those that protect it today under the Endangered Species Act.

Kostyack told me after the press conference: "The new language has gotten to the heart of the concerns that conservationists had. There were a lot of smiles around the table today."

The agency today also released National Bald Eagle Management Guidelines. They are intended to help landowners avoid violating the eagle act and the Migratory Bird Treaty Act by disturbing eagles.

FWS also opened a public comment period on a proposal to establish a permit program under the eagle act that would allow a limited take of Bald and Golden Eagles. Hall said permits would be granted only in "rare cases" where an eagle's presence was a potential safety hazard, such as a nest located near an airport. "We expect to issue very few permits," he added. — M.M.

Comments

[Fred Lesher]

In my judgement. "likely to cause" disturbance language leaves open whether or not air-boats or any kind of motor or even a canoe are "likely" to disturb Bald Egles nesting on, "near" or above backwater sloughs of the Mississippi River.

Presuming BAEAs will not abandon nest sites on "near" or above such sloughs & channels sites means boaters would not be allowed legally to travel such sites. I don't think many folks will tolerate such restrictions. This will increase resentment of the USFWS by locals who in effect think THEY own the resource.

While I support the best protection of BAEAs, I doubt that the "likely to disturb" language is either enforceable or good policy.

Of course, who will know what causes nest abandonment? How does one prove nest abandonment because of a specific human activity?

I am unsure what USFWS attorneys think, or what kind of "politics" are going on with this language, but I think BAEAs and non-game birds such as Prothonotary Warblers & Great Crested Flycatchers are also important residents of the Mississippi R. bottomlands, but do not in fact even "exist" to general River users: "boaters", fishers & shooters.

The USFWS mandate should include more active protection and information about non-game birds & animals.

In my opinion, the "likely to cause" clause is bad policy because it is bad language.

Thank you.

Fred Lesher
509 Winona St.
LaCrosse, WI 54603
Phone: 1-608-783-1149
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