37346 Federal Register / Vol. 72, No. 130 / Monday, July 9, 2007 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AF21 

Endangered and Threatened Wildlife 

and Plants; Removing the Bald Eagle 

in the Lower 48 States From the List 

of Endangered and Threatened Wildlife 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: The best available scientific 

and commercial data indicate that the 

bald eagle has recovered. Therefore, 

under the authority of the Endangered 

Species Act of 1973, as amended (Act), 

we, the U.S. Fish and Wildlife Service, 

remove (delist) the bald eagle 

(Haliaeetus leucocephalus) in the lower 

48 States of the United States from the 

Federal List of Endangered and 

Threatened Wildlife. This determination 

is based on a thorough review of all 

available information, which indicates 

that the threats to this species have been 

eliminated or reduced to the point that 

the species has recovered and no longer 

meets the definition of threatened or 

endangered under the Act. 

Fueled by a reduction in the threats 

to the bald eagle, the population in the 

lower 48 States has increased from 

approximately 487 breeding pairs in 

1963, to an estimated 9,789 breeding 

pairs today. The recovery of the bald 

eagle is due in part to the reduction in 

levels of persistent organochlorine 

pesticides (such as DDT) occurring in 

the environment and habitat protection 

and management actions. The 

protections provided to the bald eagle 

under the Bald and Golden Eagle 

Protection Act (BGEPA) and the 

Migratory Bird Treaty Act (MBTA) will 

continue to remain in place after the 

species is delisted. To help provide 

more clarity on the management of bald 

eagles after delisting, we recently 

published a regulatory definition of 

‘‘disturb’’, the final National Bald Eagle 

Management Guidelines and a proposed 

rule for a new permit that would 

authorize limited take under BGEPA 

and grandfather existing Act 

authorizations. 

DATES: This rule is effective August 8, 

2007. 

FOR FURTHER INFORMATION CONTACT: 

Chief, Branch of Recovery and Delisting, 

telephone (703) 358–2061 or facsimile 

(703) 358–1735. 

Additional information is also 

available on our Web site at http:// 

www.fws.gov/migratorybirds/ 

BaldEagle.htm. Individuals who use a 

telecommunications device for the deaf 

(TDD) may call the Federal Relay 

Service at 1–800–877–8339 for TTY 

assistance, 24 hours a day, 7 days a 

week. 

SUPPLEMENTARY INFORMATION: 

Background 

Information about the bald eagle’s life 

history can be found in our February 16, 

2006, reopening of the public comment 

period on the proposed delisting rule 

(71 FR 8238) (U.S. FWS 2006a) and our 

five recovery plans for the bald eagle 

(U.S. FWS 1982, 1983, 1986, 1989, 

1990), Gerrard and Bortolotti (1988), 

and Buehler (2000). 

Previous Federal Actions 

Bald eagles gained protection under 

the Bald Eagle Protection Act (16 U.S.C. 

668–668d) in 1940 and the Migratory 

Bird Treaty Act (MBTA) (16 U.S.C. 703– 

712) in 1972. A 1962 amendment to the 

Bald Eagle Protection Act added 

protection for the golden eagle and the 

amended statute became known as the 

Bald and Golden Eagle Protection Act 

(BGEPA). 

On March 11, 1967 (32 FR 4001), the 

Secretary of the Interior listed bald 

eagles south of 40 north latitude as 

endangered under the Endangered 

Species Preservation Act of 1966 (Pub. 

L. 89–699, 80 Stat. 926) due to a 

population decline caused by DDT and 

other factors. On February 14, 1978, the 

Service listed the bald eagle as 

endangered under the Act (16 U.S.C. 

1531 et seq.) in 43 of the contiguous 

States, and threatened in the States of 

Michigan, Minnesota, Wisconsin, 

Oregon, and Washington (43 FR 6230, 

February 14, 1978). Sub-specific 

designations for northern and southern 

eagles were removed. 

On February 7, 1990, we published an 

advance notice of proposed rulemaking 

(55 FR 4209) to reclassify the bald eagle 

from endangered to threatened in the 43 

States where it had been listed as 

endangered and retain the threatened 

status for the other 5 States. On July 12, 

1994, we published a proposed rule to 

accomplish this reclassification (59 FR 

35584), and the final rule was published 

on July 12, 1995 (60 FR 36000). 

On July 6, 1999, we published a 

proposed rule to delist the bald eagle 

throughout the lower 48 States due to 

recovery (64 FR 36454). Due to the 

availability of new information, on 

February 16, 2006 (71 FR 8238), we 

reopened the public comment period on 

our July 6, 1999 (64 FR 36454), 

proposed rule to delist the bald eagle in 

the lower 48 States. The reopening 

notice contained updated information 

on several State survey efforts and 

population numbers. Simultaneously 

with the reopening of the public 

comment period on the proposed 

delisting, we also published two 

Federal Register documents soliciting 

public comments on two new items 

intended to clarify the BGEPA 

protections for the bald eagle after 

delisting: (1) A proposed rule for a 

regulatory definition of ‘‘disturb’’ (71 FR 

8265, February 16, 2006), and (2) a 

notice of availability for draft National 

Bald Eagle Management Guidelines (71 

FR 8309, February 16, 2006). On May 

16, 2006, we published three separate 

notices in the Federal Register that 

extended the public comment period on 

the proposed delisting (71 FR 28293), 

the proposed regulatory definition of 

‘‘disturb’’ (71 FR 28294), and the draft 

Guidelines (71 FR 28369). The comment 

period for all three documents was 

extended to June 19, 2006. 

On December 12, 2006, we published 

in the Federal Register a notice 

requesting public comment on two 

BGEPA items. First, we re-opened the 

public comment period on our February 

16, 2006, proposed regulatory definition 

of ‘‘disturb.’’ Second, we also 

announced the availability the draft 

environmental assessment on the 

definition of ‘‘disturb’’ (71 FR 74483). 

On October 6, 2004, we received a 

petition, dated October 6, 2004, from the 

Center for Biological Diversity, the 

Maricopa Audubon Society, and the 

Arizona Audubon Council requesting 

that the bald eagle population found in 

the Sonoran Desert (as defined by 

Brown 1994) or, alternately, in the 

upper and lower Sonoran Desert (as 

defined by Merriam (Northern Arizona 

University 2006, p. 2)) be classified as 

a distinct population segment (DPS), 

that this DPS be reclassified from a 

threatened species to an endangered 

species, and that we concurrently 

designate critical habitat for the DPS. 

On August 30, 2006, we made a 90-day 

finding (71 FR 51549) that the petition 

did not present substantial scientific or 

commercial information indicating that 

the petitioned action may be warranted. 

On January 5, 2007, the Center for 

Biological Diversity and the Maricopa 

Audubon Society brought suit against 

the Service, Center for Biological 

Diversity v. Kempthorne, CV 07–0038– 

PHX–MHM (D. Ariz.), challenging the 

Service’s 90-day finding that the 

Sonoran Desert population did not 

qualify as a DPS, and further 

challenging the Service’s 90-day finding 

that the Sonoran Desert population 

should not be up-listed to endangered 


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status. That suit is still pending. 

However, the Service’s finding in this 

final delisting rule supersedes the 

Service’s 90-day petition finding 

because it constitutes a final decision on 

whether the Southwestern bald eagles, 

including those in the Sonoran Desert, 

qualify for listing as a DPS. This 

decision was made after notice and 

comment, as described above, and was 

based on all of the relevant information 

that the Service has obtained. Even if 

the court in the 90-day finding suit were 

to find that the plaintiffs’ petition 

warranted further review, this finding 

addresses the same issues that the 

Service would have considered as part 

of a 12-month finding had the Service 

made a positive 90-day finding on the 

petition. This document constitutes the 

Service’s final determination on these 

issues, and is judicially reviewable with 

respect to them; therefore, any 

controversy regarding the August 30, 

2006, 90-day finding is now moot. 

On June 5, 2007, we published four 

documents in the Federal Register 

announcing one proposed action and 

three final actions under the BGEPA: (1) 

A final rule on the regulatory definition 

of ‘‘disturb’’ (72 FR 31132); (2) a notice 

of availability for the final National Bald 

Eagle Management Guidelines (72 FR 

31156); (3) a notice of availability for the 

final environmental assessment on the 

definition of ‘‘disturb’’ (72 FR 31156); 

and (4) a proposed rule for a new permit 

that would authorize limited take under 

BGEPA, and to grandfather existing Act 

authorizations after delisting occurs 

under the Act (72 FR 31141). 

Bald Eagle Recovery 

Section 4(f) of the Act directs us to 

develop and implement recovery plans 

for listed species. In establishing the 

recovery program for the species in the 

mid-1970s, the Service divided the bald 

eagle population in the lower 48 States 

into five recovery regions. These 

recovery regions were administrative 

boundaries to help the Service plan for 

recovery, given the information we had 

at the time. During this timeframe the 

bald eagle population was continuing to 

decline and little was known about 

where the important areas might be. 

Given the lack of information on this 

issue, the Service generally decided that 

recovery planning should be conducted 

in all parts of the range. However, as 

discussed below in the Conclusion of 

the 5-Factors analysis section, based on 

the information present today, the 

southwest region is a not a significant 

portion of the range. 

In some cases, we appoint experts to 

recovery teams to assist in the 

preparation of recovery plans. For the 

bald eagle, separate recovery teams 

composed of experts in each geographic 

area prepared recovery plans for their 

region. The teams established recovery 

objectives and criteria and identified 

tasks to achieve those objectives. 

Coordination meetings were held 

regularly among the five teams to 

exchange data and discuss progress 

towards recovery. 

We used these five recovery plans to 

provide guidance to the Service, States, 

and other partners on methods to 

minimize and reduce the threats to the 

bald eagle and to provide measurable 

criteria that would be used to help 

determine when the threats to the bald 

eagle had been reduced so that the bald 

eagle could be removed from the 

Federal List of Endangered and 

Threatened Wildlife. 

Recovery plans in general are not 

regulatory documents and are instead 

intended to provide a guide on how to 

achieve recovery. There are many paths 

to accomplishing recovery of a species 

in all or a significant portion of its 

range. The main goal is to remove the 

threats to a species, which may occur 

without meeting all recovery criteria 

contained in a recovery plan. For 

example, one or more criteria may have 

been exceeded while other criteria may 

not have been accomplished. In that 

instance, the Service may judge that, 

overall, the threats have been reduced 

sufficiently, and the species is robust 

enough, to reclassify the species from 

endangered to threatened or perhaps to 

delist the species. In other cases, 

recovery opportunities may be 

recognized that were not known at the 

time the recovery plan was finalized. 

Achievement of these opportunities may 

be counted as progress toward recovery 

in lieu of methods identified in the 

recovery plan. Likewise, we may learn 

information about the species that was 

not known at the time the recovery plan 

was finalized. The new information may 

change the extent that criteria need to be 

met for recognizing recovery of the 

species. Overall, recovery of species is 

a dynamic process requiring adaptive 

management, and judging the degree of 

recovery of a species is also an adaptive 

management process that may, or may 

not, fully follow the guidance provided 

in a recovery plan. 

Recovery of the bald eagle has been a 

dynamic process. As new information 

became available, it was used during the 

recovery implementation process to 

help the Service determine whether 

recovery was on track. For instance, 

after the bald eagle was downlisted in 

1995, the Southeastern Recovery Plan 

did not have specific delisting goals, 

and the Service used the recovery team 

to help determine the appropriate goal. 

This new delisting goal is considered 

the best available data in helping the 

Service determine whether the threats 

have been removed and to move 

forward with the delisting. 

All of the bald eagle recovery plans 

established goals for the number of 

occupied breeding areas and the 

productivity of the populations in the 

individual recovery regions. By setting a 

goal to monitor population numbers and 

productivity, the Service could 

determine whether the threats that led 

to the bald eagle’s endangerment were 

being removed. With the reduction in 

levels of persistent organochlorine 

pesticides (such as DDT) occurring in 

the environment and the habitat 

protection and management actions that 

have been put in place, the bald eagle 

population has shown a remarkable 

increase in numbers. Between 1990 and 

2000, the bald eagle population had a 

national average productivity of at least 

one fledgling per nesting pair per year. 

As a result, the bald eagle’s nesting 

population increased at a rate of about 

8 percent per year during this time 

period. Since 1963, when the Audubon 

Society estimated that there were 487 

nesting pairs, bald eagle breeding in the 

lower 48 States has expanded to more 

than 9,789 nesting pairs today (U.S. 

FWS 1995, p. 36001; U.S. FWS 1999, p. 

36457.) 

Some States have shown increases in 

their bald eagle pairs over the past 

several years. For example, Illinois had 

an estimated 36 pairs in 1999, but the 

State had an estimated 100 pairs in 2006 

(Conlin 2006, p. 1). Iowa had an 

estimated 100 pairs in 1999, and their 

bald eagle population has doubled to an 

estimated 200 pairs in 2006 (Vonk 2006, 

p. 1). Minnesota had an estimated 681 

pairs in 2001, and an estimated 1,312 

pairs in 2005 (Moore 2006, p. 1). In 

recent decades, Vermont was the only 

State in the conterminous United States 

that did not have nesting bald eagles. In 

2006, a pair of bald eagles nested in 

Vermont for the first time since the 

1940s, and now Vermont has one 

nesting pair (Amaral 2006, p. 3). To 

date, the bald eagle’s population growth 

has exceeded all the numeric goals 

established in the five recovery plans. In 

most of the recovery regions, the 

numeric goals for breeding pairs have 

been significantly exceeded. For 

example, the delisting goal in the 

Northern States Recovery Plan calls for 

1,200 breeding pairs distributed over a 

minimum of 16 States. Today, there are 

an estimated 4,215 breeding pairs 

covering every State in that recovery 

region. 

BILLING CODE 4310–55–P 


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rwilkins on PROD1PC63 with PROPOSALS2ER09JY07.000</GPH>
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BILLING CODE 4310–55–C 


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37350 Federal Register / Vol. 72, No. 130 / Monday, July 9, 2007 / Rules and Regulations 

For more information on recovery of 

the bald eagle in general and specific 

recovery of the individual recovery 

areas, see the discussion on pages 8240–

8243 of the February 16, 2006, 

reopening of the public comment period 

on the proposed rule to delist the 

species (71 FR 8238). 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on February 16, 2006 (71 FR 

8238), when we reopened the public 

comment period on our July 6, 1999 (64 

FR 36454), proposed rule to delist the 

bald eagle in the lower 48 States. In that 

reopening notice, we responded to 

comments previously received on the 

July 6, 1999 (64 FR 36454) proposed 

delisting rule. Therefore, the preamble 

to this final rule addresses only the 

comments we received on the February 

16, 2006, notice. The comment period 

was reopened from February 16, 2006, 

to May 17, 2006. During that time, we 

received two requests to extend the 

public comment period. In response to 

those requests, on May 16, 2006 (71 FR 

28293), we extended the public 

comment period to June 19, 2006. As 

part of the reopening of the public 

comment period, we also contacted the 

States and Tribes to solicit their 

comments. 

In conformance with our policy on 

peer review, published on July 1, 1994 

(59 FR 34270), we solicited opinions 

from three scientific experts who are 

familiar with this species to peer review 

the proposed rule. We received 

comments from two of the three peer 

reviewers, and those two peer reviewers 

convened panels of scientific experts to 

review the information provided. Their 

comments are included in the summary 

below. One peer reviewer generally 

supported the proposed delisting, and 

the other peer reviewer did not. 

We reviewed all comments received 

from the peer reviewers, State and 

Tribal agencies, and the public for 

substantive issues and new information 

regarding the proposed delisting. We 

received a total of 387 new comments. 

Section 4(b)(1)(A) of the Act requires 

that determinations as to whether any 

species is a threatened or endangered 

species shall be made ‘‘solely on the 

basis of the best scientific and 

commercial data available,’’ including 

all information received during the 

public comment period. Comments 

merely stating support or opposition to 

the proposed delisting without 

providing supporting data, although 

noted, were not considered substantial 

and therefore were not considered in 

our determination. Substantial 

comments received during the comment 

period have either been addressed 

below or incorporated directly into this 

final rule. 

Peer Review Comments 

Issue: Several commenters, including 

one of the peer reviewers, stated that 

threat of habitat loss, including foraging, 

breeding, and wintering/roosting habitat 

(including communal roosting areas), 

due to development will continue 

because there are no adequate habitat 

protections (existing regulatory 

mechanisms) for bald eagles after 

delisting. One peer reviewer 

acknowledged that BGEPA and MBTA 

provide protection to birds, their nests, 

and eggs, but opined that those statutes 

offer no protection to habitat. In 

addition, the commenters believed that 

the proposed regulatory definition of 

‘‘disturb’’ and the draft National Bald 

Eagle Management Guidelines will not 

be adequate to provide habitat 

protection. One peer reviewer expressed 

an opposite opinion stating that the 

proposed BGEPA definition and 

guidelines provide an adequate 

framework for protecting eagles and 

their habitat using BGEPA and MBTA. 

Response: As discussed in detail 

under Factor A, the bald eagle 

population is continuing to increase in 

the lower 48 States, showing that 

reduced availability of habitat is not a 

current threat to the species. Nesting 

habitat is secure on many public and 

private locations throughout the lower 

48 States. We acknowledge that some 

habitat threats continue to exist. 

However, this localized habitat loss will 

be limited by the operation of various 

Federal laws that will remain in effect 

after delisting (e.g., BGEPA, MBTA, and 

the Clean Water Act (CWA)). 

The commenters are correct in that 

the BGEPA contains no provisions that 

directly protect habitat, except for nests. 

However, as further discussed under 

Factor A below, individual bald eagles 

are protected from certain effects that 

are likely to occur as the result of 

various human activities, including 

some habitat manipulation. Activities 

that disrupt eagles at nests, foraging 

areas, and important roosts can wound, 

kill, or disturb eagles, all of which are 

prohibited by the BGEPA. Through 

promulgation of the regulatory 

definition of disturb (72 FR 31132; June 

5, 2007) and issuance of the National 

Bald Eagle Management Guidelines (72 

FR 31156; June 5, 2007), we have 

clarified that eagle nests, important 

foraging areas, and communal roost sites 

are afforded protection under the 

BGEPA to the degree that adjacent 

habitat modification would disturb, 

injure, or kill eagles. 

Issue: One of the peer reviewers stated 

that the final delisting rule should 

include a list of updated population 

data by State with references to the 

survey from which the data were 

obtained. 

Response: We have included an 

updated national population estimate in 

this final rule along with a map with the 

estimated number of breeding pairs per 

State. To ensure that our determination 

on the status of the bald eagle was based 

‘‘solely on the basis of the best scientific 

and commercial data available’’ as 

required by the Act, we used State 

population data provided to us directly 

by a State agency, the Pacific Flyway 

Council, or from a State Web site. Based 

on this information, there are an 

estimated 9,789 bald eagle pairs in the 

lower 48 States. We believe this is a 

conservative estimate based on the 

results of our pilot studies for the postdelisting monitoring plan (USFWS 

2007). For example, in the pilot study 

conducted by Minnesota, 872 known 

nest sites were observed as occupied in 

2005. Incorporating the use of area 

random plots for our pilot study, 

Minnesota’s estimate of nesting bald 

eagle pairs increased to 1,312. 

Minnesota estimates that their known 

nest survey, which is similar to those 

conducted by each of the States and 

used to produce data for the delisting, 

may only count two-thirds of the 

breeding pairs in the State (Moore 2006, 

pp. 1–2). 

Issue: Both peer reviewers expressed 

concern about using out-dated recovery 

plans and delisting criteria. One peer 

reviewer recommended that the 

delisting criteria in the recovery plan for 

Southeastern United States bald eagles 

should be peer reviewed before 

finalizing the delisting. One commenter 

thought the Service should seek more 

advice from the recovery team members. 

Response: Recovery plans are not 

regulatory documents and are instead 

intended to provide guidance to the 

Service, States, and other partners on 

methods of minimizing threats to listed 

species and on criteria that may be used 

to determine when recovery is achieved. 

There are many paths to accomplishing 

recovery of a species, and recovery may 

be achieved without fully meeting all 

criteria in a recovery plan. Overall, 

recovery of species is a dynamic process 

requiring adaptive management, and 

judging the degree of recovery of a 

species is also an adaptive management 

process that may, or may not, fully 

follow the guidance provided in a 

recovery plan. 

Over the years, the Service sought 

advice from several recovery teams. In 

the Southeast, we used the advice of the 

recovery team to give us a population 

target that would indicate that the 

threats had been reduced. We believe 


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this is the best available information at 

this time. 

Issue: One peer reviewer and several 

commenters noted concern over the 

viability of the Southwest population of 

bald eagles based on low numbers of 

breeding pairs, relatively low 

productivity, relatively high adult 

mortality, and threats of habitat 

alteration and human disturbance. 

Based on this information, the peer 

reviewer recommended designating the 

population as a DPS and deferring the 

delisting. 

Response: As further discussed in the 

Summary of Factors Affecting the 

Species section, the Service does not 

believe the bald eagle population in the 

Southwest meets the criteria stated in 

our DPS policy (61 FR 4722; February 

7, 1996), nor is this population a 

significant portion of the range of the 

lower 48 States population of bald 

eagles. Therefore, consideration of the 

viability of, or threats to, the 

Southwestern population, standing 

alone, is not relevant to the delisting 

determination for the lower 48 States 

bald eagle population. 

Issue: Several commenters, including 

peer reviewers, commented that a postdelisting monitoring (PDM) plan should 

be in place when delisting occurs and 

should remain in effect longer than 5 

years. In addition, the plan should be 

comprehensive and scientifically based 

to monitor changes in population, 

productivity, wintering populations, 

habitat, and contaminants. 

Response: Based on comments from 

the 1999 proposed delisting rule, we 

have been working steadily on the 

development of a revised national postdelisting monitoring plan, including 

conducting several pilot studies in 

cooperation with the States, to produce 

a monitoring plan that will be more 

scientifically robust than previously 

proposed in the 1999 proposed delisting 

rule. We have modified the draft postdelisting monitoring plan to take into 

account the life cycle of the bald eagle. 

We are making the revised draft of the 

monitoring plan is available for public 

comment simultaneously with this rule 

elsewhere in today’s Federal Register. 

We agree that a plan should ideally be 

in place at the time of delisting; 

however, given the proposed 20-year 

monitoring effort, we believe the plan 

will be finalized in a sufficient amount 

of time to adequately monitor the status 

of the species after delisting. Given the 

continued increase in the population, 

we do not expect a precipitous decline 

over the short term, prior to our 

completion of the final monitoring plan. 

Other Comments 

Factor A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range 

Issue: One commenter stated that the 

delisting criteria have not been met for 

habitat protection in the Chesapeake 

Bay region. Another commenter stated 

that while lands have been protected in 

the Chesapeake Bay Recovery Region to 

sustain the targeted levels of breeding 

pairs, the proposed delisting does not 

address protection of summer and 

winter concentration areas. The 

commenter noted that neither the 

Service’s National Wildlife Refuges nor 

State management areas provide enough 

land to provide the necessary 

concentration areas. Another 

commenter stated that habitat loss and 

development are not limiting factors in 

Maryland, and are not likely to cause 

endangerment in the future. The 

commenter believes that the Chesapeake 

Bay Critical Area Program will continue 

to conserve forested shoreline habitat, 

and that it is not necessary for us to 

fully meet the habitat preservation goals 

in the Chesapeake Bay Recovery Plan. 

Response: The Chesapeake Bay bald 

eagle population has experienced 

significant growth over the past 30 

years. Within the Chesapeake Bay Bald 

Eagle Recovery Region, approximately 

280 nests occur on Federal or State 

lands (48 nests from Koppie 2007b and 

230 nests from Otto 2007). In addition 

to the long term habitat protection 

afforded on these lands, nearly 200 

other nests occur within areas regulated 

by the Maryland Critical Areas Act 

(Koppie 2007b), which is discussed 

below. Together, these areas will 

continue to play active roles in 

providing additional protection of nests, 

nest buffers, forest blocks, and roosting 

habitat for bald eagles in the foreseeable 

future. 

Habitat loss is still likely to occur in 

this region in the foreseeable future 

through incremental land clearing. It is 

projected that between 1978 and 2020, 

the developed area of the Chesapeake 

Bay watershed will increase by 74 

percent in Maryland and 80 percent in 

Virginia (Gray et al. 1988). The Service 

acknowledges ongoing shoreline 

development will continue for the 

foreseeable future, which will likely set 

limits on the rate of future expansion 

and overall population growth of the 

bald eagle in the Chesapeake Bay region. 

Bald eagle nesting pairs currently 

continue to increase despite the 

increased construction of new homes, 

business parks, boat marinas, and other 

infrastructure within habitats sustaining 

bald eagles. Therefore, it appears that 

unoccupied forested habitat currently 

still remains available, leading to the 

conclusion that the species has not yet 

reached the carrying capacity limits for 

nesting eagle pairs in the Chesapeake 

Bay region. The Service anticipates a 

continued upward population growth at 

least through the next decade based on 

the availability of habitat and behavioral 

adaptation. In addition, bald eagles have 

been able to adapt to higher densities of 

birds by decreasing the size of nesting 

territories in certain areas of the region 

where birds are starting to saturate the 

habitat. At some point, the Service 

expects the growth rate to decrease and 

level off, establishing a population that 

is stable over the long term. 

A study published in 1996 used 

modeling to predict that the population 

of bald eagles in the Chesapeake Bay 

region would increase until reaching 

carrying capacity, after which there 

would be a rapid decline of the 

population (Fraser et al. 1996, p. 185). 

However, we find that model to be 

unpersuasive for a number of reasons. 

First, it predicts that a decline might 

have begun by about 2005, but bald 

eagle numbers continue to increase in 

the Chesapeake Bay area. In Maryland, 

the population has increased from 338 

breeding pairs to 400 between 2003 and 

2004, and in Virginia bald eagle pairs 

increased from 371 to 485 between 2003 

and 2006. 

Second, the predictive model showing 

a decline in the Chesapeake Bay bald 

eagle population does not take into 

account nest protection measures or 

refugia such as State and Federal 

wildlife refuges (Fraser et al. 1996, p. 

185). In Virginia, the Eastern Virginia 

Rivers National Wildlife Refuge 

Complex was established to protect bald 

eagle nesting sites and communal roost 

sites that are part of concentration areas 

along the Rappahannock and James 

rivers. These refuges are within the 

Rappahannock River Watershed and the 

James River Watershed, which hold 

approximately half of Virginia’s nesting 

population of bald eagles. In addition, 

the first ‘‘eagle refuge,’’ Mason Neck 

National Wildlife Refuge, was 

established to protect bald eagles along 

the Potomac River in 1967. In Maryland, 

communal roost sites and nesting areas 

are protected at the U.S. Army Aberdeen 

Proving Ground, Blackwater National 

Wildlife Refuge, Naval Surface Warfare 

Center at Indian Head, and an area 

below the Conowingo Dam along the 

Susquehanna River. All these areas 

(excluding the Conowingo Dam) are 

located within forested habitats on 

federal lands and therefore have long 

term protection, as explained under 

Factor A (Koppie 2007a). 


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Third, the model does not take into 

account the increase in bald eagle 

tolerance to human disturbance. The 

Service has documented several cases in 

which bald eagles around the 

Chesapeake Bay have continued to nest 

and successfully produce young within 

distances that were previously 

considered too close to human activity 

(Koppie 2007a). In addition, in both 

Virginia and Maryland, compression of 

nesting territories (i.e., eagles nesting in 

closer proximity to each other than in 

recent decades) has been observed, 

suggesting that the density of nesting 

pairs can be higher than once 

documented (Koppie 2007a). 

In addition, certain State authorities 

and programs may afford additional, 

unquantifiable habitat protection. For 

example, in Maryland the Critical Area 

Act covering the Chesapeake Bay and 

Atlantic Coastal Bays enables the State 

and local governments to jointly address 

the impacts of land development on 

habitat and aquatic resources. This 

program can indirectly protect bald 

eagle habitat by, among other things, 

categorizing predominant land uses, 

focusing new development towards 

existing developed areas, and 

designating natural resource areas, 

habitat protection areas and buffers. 

These measures may reduce the rate of 

bald eagle habitat alteration depending 

on how they are employed across the 

landscape. To the extent that the Critical 

Areas program is maintained, it has the 

potential to contribute to forested 

shoreline preservation within 1,000 feet 

of the Chesapeake and Atlantic Coastal 

Bays where upwards of 70 percent of 

Maryland’s eagles nest (Koppie 2007b). 

There are currently an estimated 

1,093 breeding pairs in the Chesapeake 

Bay Recovery Region. Habitat loss is 

still likely to occur in the Chesapeake 

Bay region in the foreseeable future. 

However, based on the number of nests 

and associated habitat found on 

protected lands, the existence of refuges 

and other lands specifically to conserve 

concentration and foraging areas, the 

availability of additional unoccupied 

habitat, behavioral adaptation, 

potentially increased compression of 

nesting territories, and the continuation 

of protection under BGEPA (as 

discussed under Factor A), we do not 

expect the bald eagle population in the 

Chesapeake Bay area to decline below 

the recovery target of 300–400 nesting 

pairs in the foreseeable future. 

Similarly, we do not anticipate that 

habitat loss will have a significant 

negative impact on important 

concentration areas. 

Issue: Eagles have not recovered in 

the Southwestern United States. They 

are threatened with oil and gas 

development. The Bureau of Land 

Management is allowing gas wells and 

pipelines to be constructed in prime 

eagle habitat, and it will only get worse 

after delisting. For example, the Bureau 

of Land Management is allowing gas 

wells and pipelines to be constructed in 

prime bald eagle habitat around Navajo 

Reservoir. 

Response: We do not have any data to 

indicate that oil and gas development is 

currently threatening the future security 

of the bald eagle or its habitat in the 

Southwest. The Bureau of Reclamation 

manages the land around the Navajo 

Reservoir, and the Resource 

Management Plan includes areas 

specifically designated to protect bald 

eagles (U.S. BR 2005, p. 2–2, map 2–1). 

We believe the measures described in 

the Resource Management Plan will 

provide adequate protections for bald 

eagles and their habitat around the 

Navajo Reservoir after delisting. 

Issue: One commenter stated that the 

final rule needs to include a discussion 

on the declines in some fisheries as a 

past and present concern. For example, 

the demise of a kokanee salmon run in 

Glacier National Park ended a large 

autumn aggregation of bald eagles in 

that area. Declines in alewives and 

herring in Maine have also restricted 

eagle aggregations. 

Response: Bald eagle populations 

have increased despite isolated declines 

in local fish populations. As 

opportunistic feeders, bald eagles will 

move to alternative food sources, 

particularly during the non-nesting 

season. Therefore, we do not believe 

this is a threat that would limit the 

population of bald eagles in the lower 

48 States, or a significant portion of its 

range in the foreseeable future such that 

continued protection under the Act 

would be warranted. 

Issue: One commenter felt that a 

State-level management plan for bald 

eagles in the Southwest Recovery 

Region was needed because the Arizona 

Bald Eagle Nestwatch Program will 

likely disappear after delisting. 

Response: The Conservation 

Assessment and Strategy for the Bald 

Eagle in Arizona has been developed by 

the Arizona Game and Fish Department, 

cooperating agencies, and Tribes to 

continue management practices for the 

bald eagle after delisting, including the 

Bald Eagle Nestwatch Program (Driscoll 

et al. 2006, pp. 1, 33). As we stated in 

our August 30, 2006, petition finding, 

the Arizona Bald Eagle Nestwatch 

Program will likely remain in place 

because the funding comes from a 

variety of sources, including State 

wildlife grants, donations, Arizona 

Game and Fish Department’s Heritage 

Funds (State lottery), and matching 

funds for Federal grants. In any case, 

there is no specific requirement under 

the Act for a State management plan. 

Issue: BGEPA does not require 

landowners or developers to provide 

notification of their projects that may 

affect eagle nests. BGEPA and MBTA 

only come into effect after discovery of 

an infringement. There currently is no 

mechanism under BGEPA to allow for 

lawful activities (such as transportation 

construction and maintenance) to 

proceed. Left without options, 

landowners will be very tempted to cut 

down nest trees rather than lose the use 

of their property. 

Response: Actions that result in take 

as defined under BGEPA or MBTA are 

prohibited unless permitted by the 

Service. Thus, such notification is not 

required under either statute, but an 

action resulting in take is prohibited 

nonetheless. As currently occurs under 

the Act, providing such notification may 

be in the interest of a project proponent 

as it can help them avoid potential legal 

liabilities from enforcement of BGEPA 

or MBTA. We believe that working 

cooperatively with landowners to avoid 

or minimize adverse impacts to bald 

eagles is likely to achieve more positive 

conservation than reliance on regulatory 

enforcement. In addition, we have 

proposed a program that would allow us 

to authorize limited take associated with 

otherwise lawful activities under 

BGEPA (72 FR 31141; June 5, 2007), 

similar to the incidental take 

authorizations that we have made under 

sections 7 and 10 of the Act. 

Factor B. Overutilization for 

Commercial, Recreational, Scientific, or 

Educational Purposes 

Issue: Poaching and illegal trade of 

bald eagle parts is still a threat that will 

increase if the bald eagle is delisted. 

Response: There is no legal 

commercial or recreational use of bald 

eagles, and such uses of bald eagles will 

remain illegal under various statutes, as 

described under Factor B below. We 

consider current laws and enforcement 

measures apart from the Act sufficient 

to protect the bald eagle from illegal 

activities, including poaching and 

illegal trade. 

Issue: Eagle parts and feathers should 

continue to be available for Native 

American religious and cultural needs. 

If the bald eagle is delisted, Native 

Americans should be given priority for 

eagle parts and feathers. 

Response: To respond to the religious 

needs of Native Americans, in the early 

1970s, we established the National Eagle 

Repository in Commerce City, Colorado, 


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which serves as a collection point for 

dead raptors, including bald eagles. As 

a matter of policy, all Service units 

transfer salvaged bald eagle parts and 

carcasses to this repository. Federal and 

State conservation agencies, zoological 

parks, rehabilitators, and others who 

may legally possess and transport dead 

bald and golden eagles are encouraged 

to send the dead birds, and their parts, 

to the repository so they can be utilized 

by federally recognized Native 

American Tribes (16 U.S.C. 668a and 50 

CFR 22.22). 

Native Americans are given priority 

for eagle parts and feathers, and only 

members of Federally recognized tribes 

can obtain a permit from us authorizing 

them to receive and possess whole 

eagles, parts, or feathers from the 

repository for religious purposes. This 

policy is authorized by the provisions of 

BGEPA and will continue after 

delisting. 

Issue: One commenter did not want 

the bald eagle delisted due to the 

importance of the bald eagle to Native 

American religious and spiritual 

practices and ceremonies. Another 

commenter recommended continuing 

the Act’s protections until recovery had 

been achieved such that Native 

Americans no longer need a permit for 

Indian religious activities. Several 

commenters stated that Native 

Americans should not be allowed to 

sacrifice eagles, even if doing so is for 

religious ceremonies. 

Response: As required by the Act, we 

are delisting the bald eagle because it no 

longer meets the definition of a 

threatened species; the bald eagle will 

continue to be protected under the 

BGEPA and MBTA once it is delisted. 

These statutes prohibit unauthorized 

take and require permits for limited 

designated uses of eagles, their parts, 

and related items. The BGEPA expressly 

authorizes issuance of permits to take 

bald eagles for the religious purposes of 

Indian tribes. We will continue to issue 

only permits that we determine are 

consistent with the preservation of the 

bald eagle. 

Factor C. Disease or Predation 

Issue: One commenter stated that 

avian influenza is a threat to the bald 

eagle and that it should be thoroughly 

discussed in the delisting rule. Another 

commenter was concerned about the 

threats to bald eagles from other 

diseases such as avian vacuolar 

myelinopathy, West Nile virus, and 

raptor beak overgrowth syndrome. 

Response: The Department of the 

Interior is currently testing migratory 

birds for the presence of H5N1 high 

path avian influenza. At this time, there 

are no confirmed cases of migratory 

birds, including bald eagles, testing 

positive for avian influenza in the 

United States (USGS 2007a). At least 80 

bald eagles and possibly thousands of 

American coots have died from avian 

vacuolar myelinopathy since it was 

discovered in 1994 at DeGray Lake in 

Arkansas. Studies on avian vacuolar 

myelinopathy are continuing, but the 

cause is still unknown (USGS 2007b). 

These and other diseases may affect 

individual bald eagles at the local level, 

but as discussed below under Factor C, 

are not considered to be a significant 

threat to the overall bald eagle 

population. 

Factor D. The Inadequacy of Existing 

Regulatory Mechanisms 

Issue: Several commenters were 

concerned that many States and local 

jurisdictions will remove the 

protections for the bald eagle after 

delisting. One commenter stated that 

Memoranda of Agreement should be in 

place between the Service and the States 

to provide protection for the bald eagle 

after delisting. One commenter wanted 

to make sure that States with small bald 

eagle populations will still provide 

protection after delisting. One State 

government commented that State laws 

provide little habitat protection. Several 

States indicated that they will play a 

large role in bald eagle conservation 

after delisting. 

Response: Some States will likely 

maintain the sensitive status of the bald 

eagle under individual State laws; 

however, such protection is not needed 

to assure that the bald eagle population 

in the lower 48 States will continue to 

be a viable population after delisting. As 

described in the discussions of Factors 

A and B below, the Service believes that 

BGEPA and other Federal laws that will 

remain in place after delisting provide 

the necessary protections in the future 

for a recovered bald eagle population. 

Many States have developed Statespecific management plans, regulations, 

and/or guidance for landowners and 

land managers to protect and enhance 

bald eagle habitat, and we encourage the 

continued development and use of these 

planning tools to benefit bald eagles. 

Such measures can only offer more 

protection for bald eagles than is already 

offered by BGEPA and MBTA. The 

States will play a key role in continuing 

to monitor bald eagles in the lower 48 

States to make sure that the species 

continues to maintain its recovered 

status. 

Issue: One commenter asserts that 

BGEPA and MBTA will continue to 

protect bald eagles after delisting, and, 

because of these protections, bald eagles 

will likely become overpopulated in 

some areas of the country. 

Response: The bald eagle has not yet 

reached carrying capacity in many parts 

of its range, and we anticipate that the 

population will continue to increase in 

these areas following delisting. In prime 

congregation areas, numbers of nesting 

pairs will level off as the nesting habitat 

reaches carrying capacity. Many of the 

bald eagles displaced from saturated 

habitats will be able to relocate to other 

suitable habitats. However, territorial 

competition between eagles will likely 

maintain a naturally fluctuating 

population once carrying capacity has 

been reached. 

Issue: Several commenters were 

concerned that the Service will not 

maintain adequate funding for staff to 

provide technical assistance or enforce 

BGEPA after delisting. 

Response: The Service is committed 

to maintaining adequate staff to respond 

to requests for technical assistance. The 

ultimate mechanisms for delivering that 

assistance will be determined prior to 

making a decision on the proposed 

BGEPA permit program (72 FR 31141; 

June 5, 2007). 

Issue: Several commenters expressed 

concern that the proposed delisting did 

not include grandfathering of existing 

take authorizations/permits under 

sections 7 and 10 of the Act. 

Response: After delisting of the bald 

eagle, the Service will honor existing 

Act authorizations until the Service 

completes a final rulemaking for permits 

under the BGEPA. We do not intend to 

refer for prosecution the incidental take 

of any bald eagle under the MBTA, as 

amended (16 U.S.C. 703–712), or the 

BGEPA, as amended (16 U.S.C. 668–

668d), if such take is in full compliance 

with the terms and conditions of an 

incidental take statement issued to the 

action agency or applicant under the 

authority of section 7(b)(4) of the Act or 

the terms and conditions of a permit 

issued under the authority of section 

10(a)(1)(B) of the Act. The Service has 

proposed a rulemaking to establish 

criteria for issuance of a permit to 

authorize activities that would ‘‘take’’

bald eagles under the BGEPA. The 

Service has addressed the existing Act 

authorizations in that rulemaking, 

which if finalized, might extend 

comparable authorizations under the 

BGEPA (72 FR 31141; June 5, 2007). 

Factor E. Other Natural or Manmade 

Factors Affecting Its Continued 

Existence 

Issue: Several commenters were 

concerned about ongoing impacts of 

contaminants. One commenter noted 

that mercury is still a threat to bald 


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eagles in the Northeast United States. 

Another commenter noted that PCBs 

and DDE were still an ongoing threat to 

the Great Lakes population of bald 

eagles. Another commenter noted that 

the upper Midwest population of bald 

eagles is experiencing a heavy metal 

contaminant problem that affects the 

ratio of immature eagles to adults. 

Another commenter stated that too 

many nests in northern Illinois have 

zero productivity due to contaminants. 

Response: As we discuss further in 

Factor E below, we acknowledge that 

certain contaminants may pose a threat 

to individual bald eagles. We believe 

many of these instances are localized 

and that contaminants will not be a 

large enough threat to limit the 

population of bald eagles in the lower 

48 States or any significant portions of 

its range in the foreseeable future such 

that the protection of the Act would be 

warranted. This is evidenced by the 

population increases that have occurred 

despite the presence of certain levels of 

contaminants, including mercury and 

PCBs, in the environment. 

Issue: One commenter was concerned 

that climate change may be an issue, 

and we should, therefore, keep the bald 

eagle listed until we can guarantee that 

habitats are safe. 

Response: Section 4(b)(1)(A) of the 

Act directs that determinations as to 

whether any species is a threatened or 

endangered species shall be made 

‘‘solely on the basis of the best scientific 

and commercial data available.’’ We did 

not receive any data during the public 

comment period to indicate that climate 

change is currently threatening the 

future security of the bald eagle or its 

habitat. Since the bald eagle is currently 

successful in a wide range of climate 

conditions throughout North America, 

climate change will not likely be a factor 

threatening the species in the 

foreseeable future. 

General Comments 

Issue: The Service may take too long 

to re-list the bald eagle if it is warranted. 

Response: If data from the postdelisting monitoring plan show that the 

bald eagle population is decreasing 

below a trigger threshold specified in 

the plan, we will investigate the cause 

of the decline and take the necessary 

measures to address the decline. If the 

population decline is severe, then we 

will promptly evaluate whether relisting under the Act is warranted, 

including the Act’s provision for 

emergency listing, as appropriate. 

Issue: The Service used an out-ofdate, non-scientific population 

productivity value of 0.7 young/pair. 

Response: Our information indicates 

that a productivity value of 0.7 young/ 

pair for a stable population is still the 

best available data (see Sprunt et al. 

1973, p. 104; Buehler 2000, p. 20). 

Issue: The delisting is too reliant on 

current eagle numbers. Research on 

survivorship, sex ratios, and population 

recruitment are all important parameters 

of recovery, not just productivity. 

Delisting criteria should be based on 

numbers of active nests, not breeding 

pairs. 

Response: The recovery criteria and 

goals were established by recovery 

teams composed of experts in each 

geographic region. The purpose of the 

criteria was to allow the Service to 

monitor the status of the recovery 

efforts. By setting a goal to monitor 

population numbers and productivity, 

the Service, in conjunction with the 

recovery teams, could determine 

whether the threats that led to the bald 

eagle’s endangerment had been 

removed. Monitoring the additional 

parameters would have been more 

costly and would not provide any more 

data that would enable the Service to 

monitor recovery. Given the increase in 

the population parameters, the threats 

have been shown to have decreased to 

the point where the bald eagle no longer 

meets the definition of threatened or 

endangered under the Act. 

Issue: The population data presented 

are estimates and not supported by field 

work. Data provided by the commenter 

indicate that the percentage of immature 

eagles to adults is dropping, which may 

influence reproduction or survival in 

the bald eagle population. 

Response: The data discussed by the 

commenter are midwinter counts 

collected on one day in a 2-hour period 

from northern Minnesota to Reelfoot, 

Tennessee. These data, on their face, did 

show a fluctuation in the number of 

immature bald eagles throughout the 

time period from 1961 to 2006, with 

some years having a higher number than 

others. However, these data also 

indicated a trend of increasing adults 

from 470 in 1961 to 1,299 in 2006. 

Throughout this time period, the 

number of adults also fluctuated. 

Because surveys of wintering bald 

eagles, such as the midwinter counts 

described above, are weather dependent 

(mild winters cause fewer birds to move 

south) and can include birds migrating 

down from Canada, the Service has 

relied on nesting data as the stronger 

indicator of bald eagle population 

trends in the lower 48 States. We plan 

to continue monitoring population 

trends with implementation of our postdelisting monitoring plan. However, we 

support the public involvement related 

to midwinter counts, and such data 

have highlighted the importance of 

wintering habitats used by these eagles. 

Distinct Vertebrate Population Segment 

Section 4 of the Act and its 

implementing regulations (50 CFR part 

424) set forth the procedures for listing 

species, reclassifying species, or 

removing species from listed status. 

‘‘Species’’ is defined by the Act as 

including any species or subspecies of 

fish or wildlife or plants, and any 

distinct vertebrate population segment 

of fish or wildlife that interbreeds when 

mature (16 U.S.C. 1532(16)). We, along 

with the National Marine Fisheries 

Service (now the National Oceanic and 

Atmospheric Administration—

Fisheries), developed the Policy 

Regarding the Recognition of Distinct 

Vertebrate Population Segments (DPS 

policy) (61 FR 4722; February 7, 1996), 

to help us in determining what 

constitutes a Distinct Population 

Segment (DPS). The policy identifies 

three elements that are to be considered 

in a decision regarding the status of a 

possible DPS. These elements are: (1) 

The discreteness of the population in 

relation to the remainder of the species 

to which it belongs; (2) the significance 

of the population segment to the species 

to which it belongs; and (3) the 

population segment’s conservation 

status in relation to the Act’s standards 

for listing. Our policy further recognizes 

it may be appropriate to assign different 

classifications (i.e., threatened or 

endangered) to different DPSs of the 

same vertebrate taxon (61 FR 4725; 

February 7, 1996). 

Sonoran Desert Distinct Population 

Segment 

As discussed above, the Service made 

a negative 90-day finding on a petition 

to list the Sonoran Desert bald eagle 

population as an endangered DPS (71 

FR 51549; August 30, 2006). In this final 

determination on the proposed delisting 

of the entire bald eagle population in 

the lower 48 states, we also consider, as 

a final determination, whether the 

Sonoran Desert population of the bald 

eagle constitutes a DPS, and should 

remain listed as either an endangered or 

threatened species. The main bald eagle 

population center of the Sonoran Desert 

currently consists of 42 breeding pairs 

(AZ Game and Fish Dept. 2006, p. 6) 

that are found in the southern half of 

Arizona, west of the New Mexico state 

boundary. One breeding pair in Arizona 

is found outside the Sonoran Desert. 

Discreteness 

The DPS policy states that a 

population segment of a vertebrate 


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species may be considered discrete if it 

satisfies either one of the following two 

conditions: It must be markedly 

separated from other populations of the 

same taxon as a consequence of 

physical, physiological, ecological, or 

behavioral factors; or it must be 

delimited by international boundaries 

within which significant differences in 

control of exploitation, management of 

habitat, conservation status, or 

regulatory mechanisms exist that are 

significant in light of section 4(a)(1)(D) 

of the Act. The second criterion, 

international boundaries, is easily 

addressed because the Sonoran Desert 

population of bald eagles is not 

delimited by international boundaries 

that could be the basis of a review of 

management of habitat, conservation 

status or regulatory mechanisms. 

Therefore, the Sonoran Desert 

population of bald eagles is not discrete 

based on this criterion. As discussed 

below, under the first criterion, we find 

that the Sonoran Desert population is 

markedly separated from other 

populations as a consequence of 

behavioral factors. Therefore, we do not 

address separation by physical, 

physiological, or ecological factors. 

In looking at whether Sonoran Desert 

bald eagle are markedly separated from 

other populations it is helpful to 

evaluate whether there is a level of 

interchange between this population 

and adjacent populations. Biologists in 

Arizona made a concerted effort to band 

all nestlings in Arizona since 1987. Of 

those birds that were sighted with bands 

between 1987 and 2005, 41.8 percent 

hatched in Arizona, 18.8 percent likely 

hatched in Arizona before 1987 (due to 

a different band type), less than one 

percent were from another State, and 

38.8 percent were from unknown origin 

(unbanded) (Driscoll et al. 2006, p. 26). 

One adult breeding in Arizona is known 

to have originated from another State 

(banded as a nestling in 1988 in 

southeast Texas). Only one nestling 

with a band was identified as 

subsequently nesting outside the 

recovery region (Temecula, California) 

(Driscoll et al. 2006, p. 27). Roughly 20 

percent of the population does not 

receive a band for a variety of reasons 

(e.g., logistics of reaching the nestlings), 

and therefore 38 percent of the 

population without bands would not be 

unusual. 

In addition, because of the clinal 

variation in these birds, bald eagle 

populations from around the same 

latitude would likely be the supplier of 

birds that would immigrate into the 

population. Currently, we do not have 

any populations surrounding the 

Sonoran Desert that are large enough 

that juveniles would likely start to 

disperse into the Sonoran Desert. 

Within the last 30 years, these adjacent 

populations have not increased in size 

to the same degree as we have seen with 

the populations in other parts of the 

bald eagle’s range. Given that we do not 

have large bald eagle population centers 

surrounding the Sonoran Desert, and 

given the limited habitat found between 

currently known populations, it is likely 

that interchange between the Sonoran 

Desert and other populations will be 

minimal in the foreseeable future. 

These data indicate that immigration 

to and emigration from the Sonoran 

Desert population is very limited. 

Reproductive isolation of the bald eagles 

nesting in the Sonoran Desert region of 

Arizona, although probably not 

absolute, appears to be substantial. Our 

DPS Policy does not require that 

populations experience total 

reproductive isolation in order to meet 

the discreteness criterion; rather, they 

need only to be ‘‘markedly separated.’’

We believe the documented low levels 

of immigration and emigration indicate 

that this population is currently 

markedly separated from other bald 

eagles in the United States. 

On the basis of the immigration by the 

southeast Texas eagle, in 1995, the 

Service determined as part of the 

Service’s final rule reclassifying the bald 

eagle from endangered to threatened (60 

FR 36000; July 12, 1995) that eagles in 

the Southwestern Recovery Region were 

not reproductively isolated. The banded 

bald eagle from Texas, although located 

within the Southwestern Recovery 

Region, occupies an area outside the 

Sonoran Desert. Furthermore, no 

additional banded bald eagles from 

outside the Sonoran Desert have been 

discovered immigrating into the 

Sonoran Desert since 1995. In addition, 

the analysis during the 1995 rule was 

conducted prior to implementation of 

the DPS policy in 1996. Therefore, now 

reviewing the same question in the 

context of the DPS policy, combined 

with more data on immigration and 

emigration, leads us to a conclusion that 

this population is discrete. 

Significance 

If we determine that a population 

segment is discrete under one or more 

of the discreteness conditions, then we 

evaluate its significance based on ‘‘the 

available scientific evidence of the 

discrete population segment’s 

importance to the taxon to which it 

belongs’’ (61 FR 4725). We make this 

evaluation in light of congressional 

guidance that the Service’s authority to 

list DPSs be used ‘‘sparingly’’ while 

encouraging the conservation of genetic 

diversity (61 FR 4722; February 7, 

1996). This consideration may include, 

but is not limited to the following 

elements: (1) Evidence of the 

persistence of the population segment in 

an ecological setting that is unusual or 

unique for the taxon; (2) evidence that 

loss of the population segment would 

result in a significant gap in the range 

of the taxon; (3) evidence that the 

population segment represents the only 

surviving natural occurrence of a taxon 

that may be more abundant elsewhere as 

an introduced population outside of its 

historic range; and (4) evidence that the 

discrete population segment differs 

markedly from other populations of the 

species in its genetic characteristics. 

(1) Evidence of the persistence of the 

population segment in an ecological 

setting that is unusual or unique for the 

taxon. 

As stated in the DPS policy, the 

Service believes that occurrence in an 

unusual ecological setting is potentially 

an indication that a population segment 

represents a significant resource 

warranting conservation under the Act 

(61 FR 4724). In considering whether 

the population occupies an ecological 

setting that is unusual or unique for the 

taxon, we evaluate whether the habitat 

shares many features common to the 

habitats of other populations. The 

Sonoran Desert bald eagle population 

inhabits a desert ecosystem 

characterized by hot and dry summers 

that, on its face, seems to represent an 

ecological setting that is highly unusual 

or unique for the species. However, bald 

eagles in the Sonoran Desert population 

essentially use the same ecological 

niche as those in other parts of the 

lower 48 States population. Bald eagles 

in the Sonoran Desert feed primarily on 

fish, consistent with bald eagles in other 

parts of the range. Habitat structure and 

proximity to a sufficient food source are 

usually the primary factors that 

determine suitability of an area for 

nesting (Grier and Guinn 2003, p. 44). 

Nationwide, bald eagles are known to 

nest primarily along seacoasts and 

lakeshores, as well as along banks of 

rivers and streams (Stalmaster 1987, p. 

120). Similar to the remainder of the 

population, bald eagle breeding areas 

(eagle nesting sites and the area where 

eagles forage) in the Sonoran Desert are 

located in close proximity to a variety 

of aquatic sites, including reservoirs, 

regulated river systems, and freeflowing rivers and creeks. 

We considered whether cliff nesting is 

an adaptation to the conditions in the 

Sonoran Desert that indicates the 

Southwest is a unusual or unique 

ecological setting for bald eagles. While 

Stalmaster (1987) noted that cliff nesting 


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is common in Arizona, he also noted 

that exceptions to tree nests in other 

areas do occur. Gerrard and Bortolotti 

(1988, p. 41) note that bald eagles in 

other areas may nest on cliffs if suitable 

trees are not available. For instance, 

bald eagles are known to nest on cliffs 

on the Channel Islands off California 

(NOAA 2006). Bald eagles in Alaska 

also are known to nest on cliffs, sea 

stacks, hillsides, and rock promontories 

where there are no suitable nest trees 

(Sherrod et al. 1976, p. 153). It is likely 

that up to 10 percent of the bald eagles 

in Alaska nest on the ground (Schempf 

2007). Ground nesting has been 

documented in northwestern Minnesota 

and Florida but is the exception rather 

than the rule (Hines, P. and H. Lipke 

1991; Shea, R.E. and Robertson W.B. Jr. 

1979). Eagles also nest in a variety of 

odd situations, such as utility poles, 

abandoned heavy equipment, 

mangroves, and root wads washed up 

on sandbars. Cliff nesting in the 

Sonoran Desert bald eagles does not 

seem to be an indication of a behavioral 

adaptation unique to the Sonoran 

Desert. Bald eagles will use whatever 

high nest sites are available near 

riparian areas they inhabit: in the 

Sonoran Desert these sites often happen 

to be cliffs. In fact, although bald eagles 

utilize cliffs, ledges, and pinnacles for 

nesting in the Sonoran Desert, they have 

also nested in cottonwood, willow, 

sycamore, pinyon pine, and ponderosa 

pine trees. Many Sonoran Desert eagle 

pairs have built and used both tree and 

cliff nests within their territories. This 

behavior demonstrates the flexibility in 

nest site selection that bald eagles have 

throughout the eagles’ entire geographic 

range. 

Bald eagles in the Sonoran Desert are 

smaller in size and breed earlier in the 

season than most other bald eagles, 

which could indicate behavioral 

adaptations to a unique setting. 

However, examination by latitude 

reveals differences between birds in the 

northern regions and birds in the 

southern regions. For instance, 

Stalmaster (1987, pp. 16–17) notes 

northern eagles are much larger and 

heavier than their southern 

counterparts. This is consistent with 

Bergmann’s Rule, which holds that 

animal size increases with increasing 

latitude due to changes in 

environmental temperature. Consistent 

with this rule, Hunt et al. (1992) reports 

that bald eagles in Arizona are smaller 

than those in Alaska, California, and the 

Greater Yellowstone Region. Gerrard 

and Bortolotti (1988, p. 14) note that 

bald eagles in Florida, which is farther 

south than Arizona, are the smallest, 

with a gradation of small to large from 

south to north. Timing of various 

breeding events in bald eagles is also 

tied to latitude of the nesting area, with 

eagles at more northern latitudes 

breeding at later dates (Stalmaster 1987, 

p. 63). Stalmaster (1987, p. 63) notes 

that bald eagles in Florida initiate 

breeding activities in October, even 

earlier than Sonoran Desert bald eagles. 

Bald eagles in Florida also lay eggs 

earlier (Stalmaster 1987, p. 63; Gerrard 

and Bortolotti 1988, p. 76). Accordingly, 

Florida bald eagles hatch and fledge 

earlier than those in the Sonoran Desert. 

In summary, Stalmaster’s (1987) and 

Gerrard and Bortolotti’s (1988) studies 

indicate that bald eagles in other parts 

of the lower 48 States are known to nest 

on cliffs if suitable trees are not 

available. Hunt et al. (1992) notes that 

Florida bald eagles are the smallest bald 

eagles, and that eagle size increases as 

the nest sites are located farther north. 

Stalmaster (1987) notes that bald eagles 

in Florida initiate breeding activities in 

October, even earlier than Sonoran 

Desert bald eagles. The best available 

scientific information indicates that the 

Sonoran Desert bald eagles are not 

unique in these behavioral aspects. 

Instead, bald eagle behavior and 

morphology gradually changes at 

different latitudes from north to south 

within the lower 48 States. In fact, even 

though bald eagles do persist in the 

Southwest desert setting, they remain 

consistently associated with riparian 

ecosystems. Bald eagles use whatever 

high nest sites are available near 

riparian areas they inhabit in the 

Sonoran Desert; these sites often happen 

to be cliffs. Therefore, because these 

riparian areas are common to eagle 

habitats throughout the species’ range, 

the best available data indicate that the 

Sonoran Desert population of eagles 

does not occupy an ecological setting 

that is unusual or unique for the taxon 

or that has resulted in any adaptations 

that are unusual or unique for the taxon. 

Many biological opinions prepared by 

the Service in connection with section 

7 consultations in the Sonoran Desert 

and other Service documents issued 

over the last 30 years stated that Arizona 

bald eagles live in a unique ecological 

setting and demonstrate unique 

behavioral characteristics, including the 

use of cliffs instead of trees as nest sites, 

breeding at earlier times of the year, and 

development of smaller body sizes. 

Many of these biological opinions and 

other documents were issued prior to 

the Stallmaster (1987) and Gerrard and 

Bortolotti (1988) studies. Furthermore, 

these Service documents were prepared 

prior to the issuance of the DPS policy 

in 1996, or abstracted from such earlier 

biological opinions without re-analyzing 

their relevance. The term ‘‘unique 

ecological setting’’ was not used in these 

documents in the context of its meaning 

within the DPS policy, which requires 

that the unique ecological setting be 

important to the taxon as a whole. 

While the climate conditions differ in 

the Southwest compared to other parts 

of the lower 48 States where bald eagles 

are found, this attribute alone does not 

complete the requirements of the DPS 

policy. A unique ecological setting must 

also provide some element that makes 

the members of the population 

important to the taxon as a whole, such 

as an evolutionary advantage (61 FR 

4724–4725). The factual statements in 

the biological opinions and other 

documents concerning the location of 

the population within the desert and the 

description of their behaviors did not 

include consideration of the 

population’s importance to the taxon as 

a whole because these documents were 

either issued prior to the promulgation 

of the DPS Policy or were issued for 

other purposes than evaluation of the 

population under the DPS Policy. 

The biological opinions and other 

documents, prior to 1995, also stated 

that the Arizona bald eagles had been 

considered a distinct population for the 

purposes of section 7 consultation and 

recovery efforts under the Act. The 

practice of dividing species distributed 

across the large areas within the United 

States into separate recovery regions 

was employed for management 

convenience (71 FR 51555). For the bald 

eagle, we created five different recovery 

plans for these regions. The Service’s 

current practice, however, is to create 

one plan for the listed entity because the 

previous practice led to confusion 

regarding the status of the recovery plan 

entity under section 4 of the Act. In 

addition, ‘‘recovery units’’ have been, 

and continue to be, identified as part of 

the recovery planning process for listed 

species as a management convenience. 

In the past, for the purposes of section 

7 consultation, the Service may have 

only evaluated whether the impact of a 

proposed action was jeopardizing the 

management unit, either the recovery 

plan entity or the recovery unit. 

However, this process was discontinued 

based on the consultation handbook that 

was finalized in March 1998 (USFWS 

and NMFS 1998, p. 4–36). As previously 

discussed, separating the listed entity 

into smaller management pieces may be 

useful in addressing the conservation 

needs of the species. However, it is 

important to note that the establishment 

of separate recovery plans or ‘‘recovery 

units’’ within a plan does not create a 


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new listed entity under section 4 of the 

Act. The Service has since 

acknowledged that for both recovery 

planning and consultation, the listed 

entity is the appropriate level of 

analysis. 

The Sonoran Desert can experience 

periods in the summer that are hot, with 

low humidity, but it is not a unique 

ecological setting for bald eagles for the 

purpose of the significance prong of the 

DPS policy. The best available scientific 

data suggest that the ecological setting is 

essentially the same as used by bald 

eagles elsewhere—riparian habitat. 

Although the Sonoran Desert obviously 

differs in some ways from other habitats 

that the bald eagle inhabits, every area 

differs somewhat from other occupied 

areas and the mere existence of 

difference does not settle this question. 

To the degree that the Sonoran Desert 

differs from other ecological settings 

used by the bald eagle, we conclude that 

it does not differ in a way that is 

dispositive under the DPS policy, 

because the adaptations exhibited by 

bald eagles in the Sonoran Desert are 

not unique to this setting. Rather, the 

variability in bald eagle nest site 

selection, breeding phenology, and size 

are noted elsewhere in the range where 

the species confronts similar 

limitations, such as the absence of 

nesting trees or high temperatures. 

The question under the DPS policy is 

whether persistence of a species in an 

unusual or unique ecological setting 

supports a conclusion that the discrete 

population segment is important to the 

taxon to which it belongs (See National 

Association of Home Builders v. Norton, 

340 F.3d 835, 849 (9th Cir. 2003) 

emphasizing that under the DPS policy 

significance must be to the taxon as a 

whole). The mere fact that a species 

persists in an ecological setting that 

differs to some degree from other 

ecological settings in which it is found 

does not mandate a finding that a 

population is significant. Here, we find 

that the species’ persistence in the 

Sonoran Desert does not support such a 

conclusion because there is no evidence 

that these particular eagles have adapted 

in response to these conditions in any 

way that benefits the taxon as a whole 

because similar adaptations are found in 

other settings. Without evidence of such 

an adaptation, there is likewise no 

evidence that the bald eagle’s 

persistence in the Sonoran Desert is 

important to the bald eagle as a whole. 

Therefore, we conclude that the 

discrete population of bald eagles in the 

Sonoran Desert is not ‘‘significant’’

within the meaning of the DPS policy as 

a result of persistence in a unique or 

unusual ecological setting. 

(2) Evidence that loss of the 

population segment would result in a 

significant gap in the range of the taxon. 

As ‘‘[t]he plain language of the second 

significance factor does not limit how a 

gap could be important,’’ National Ass’n 

of Home Builders v. Norton, 340 F.3d 

835, 846 (9th Cir. 2003), we considered 

a variety of ways in which the loss of 

the Sonoran Desert population might 

result in a significant gap in the range 

of the bald eagle in the lower 48 States, 

much less the broader taxon. There has 

been much speculation about the loss of 

the Sonoran Desert population given 

that repopulation of this area would 

have to occur from northern Mexico or 

adjacent States, and available evidence 

indicates that little immigration has 

occurred in this population. We agree 

that the low number of eagles in 

neighboring States would likely require 

a large amount of time to repopulate the 

Sonoran Desert region, if they ever did. 

The small number of bald eagles and 

large distances between neighboring 

populations currently limit immigration 

and emigration between them, and bald 

eagles in the neighboring populations 

would have to increase their population 

size and expand their distribution to 

occupy the gaps. 

Given repopulation through 

immigration is unlikely in the 

foreseeable future, we have to evaluate 

whether this would represent a 

significant gap to the taxon. The current 

range of the Sonoran Desert bald eagle 

could be significant if the population in 

the Sonoran Desert is numerous and 

constitutes a significant percentage of 

the total number of bald eagles, the loss 

of which would be a significant gap in 

the population. Bald eagles in the 

Sonoran Desert are neither numerous 

nor constitute a significant percentage of 

the total bald eagles within the lower 48 

States. Currently, 43 pairs are found in 

Arizona, which represents less than 1% 

of the current estimated number of 

breeding pairs of bald eagles in the 

lower 48 states. In addition, this area 

did not support a large proportion of the 

bald eagle population historically. A 

small number, estimated at 15–20 

breeding pairs, historically bred in this 

area (Tilt 1976, p. 15). Given the 

historical and current population 

number of bald eagles in the lower 48 

States, the Sonoran Desert population of 

bald eagles represents a relatively small 

number of breeding pairs in comparison 

to other areas within the lower 48 

States. Also, significant numbers of bald 

eagles that breed elsewhere do not 

winter in the Sonoran Desert. 

In addition, as discussed in the first 

and fourth significance factors, we have 

no evidence that loss of the Sonoran 

Desert population would represent a 

significant gap due to a loss of 

biologically distinctive traits or 

adaptations or genetic variability of the 

taxon. In addition, as discussed in the 

discreteness section, loss of the Sonoran 

Desert population would not create a 

significant gap by impeding gene flow 

within the taxon, as the Sonoran Desert 

population does not connect otherwise 

unconnected populations. Finally, loss 

of the Sonoran Desert population would 

not result in a significant gap in the 

range of the taxon due to the sheer 

reduction of existing or potential 

geographical range. The actual amount 

of suitable bald eagle habitat in the 

Sonoran Desert, limited to a few 

riparian corridors, is a tiny fraction of 

the total suitable habitat available for 

bald eagles in the lower 48 States, much 

less their entire range. The limited size 

of the current and historical bald eagle 

population in the Sonoran Desert 

directly reflects that fact. 

(3) Evidence that the population 

segment represents the only surviving 

natural occurrence of a taxon that may 

be more abundant elsewhere as an 

introduced population outside of its 

historic range. 

The Sonoran Desert population does 

not represent the only surviving natural 

occurrence of the bald eagles in the 

lower 48 States. 

(4) Evidence that the discrete 

population segment differs markedly 

from other populations of the species in 

its genetic characteristics. 

Hunt et al. (1992, pp. E–96 to E–110) 

contains the genetic work completed to 

date on the Arizona bald eagle 

population. Vyse (1992, p. E–100, E–

101) notes the data are inconclusive, as 

evidenced by such statements as: 

‘‘These findings must be assumed to be 

preliminary (and treated with due 

caution), because of a lack of 

information concerning sampling 

procedures. The results we have 

obtained could easily be explained by 

sampling procedures’’; and ‘‘At present 

these data (HinfI/M–13) are too 

incomplete to be considered further.’’ In 

addition, Zegers et al. 1992, p. E–106 to 

E–109): ‘‘Question 4 * * * is difficult to 

answer with precision because of the 

different sample sizes between 1985 and 

1990 * * *. [T]his difference is possibly 

an artifact of the many fewer samples in 

1985’’; ‘‘six loci may not be enough to 

give a reliable estimate of the true 

genetic distance’’; and ‘‘We feel caution 

should be exercised when interpreting 

these results due to the low numbers of 

individuals sampled from most states 

but especially because of the few loci 

examined.’’


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Although Hunt et al. (1992) suggested 

that the desert Arizona population may 

be reproductively isolated, neither 

enzyme electrophoresis nor DNA 

fingerprinting resolved any specific 

genetic markers with which Arizona 

eagles could be differentiated from other 

populations. The available genetic 

studies on bald eagles are dated, the 

sample size was small, and researchers 

conducting the studies found the results 

to be inconclusive. As discussed above, 

the Sonoran Desert population does not 

display any biologically distinctive 

traits that could signal any unique 

genetic characteristics. Therefore, given 

the assumptions and cautions in using 

the data, we have determined that the 

best available data do not support a 

conclusion that the Sonoran Desert bald 

eagle population has genetic 

characteristics that are markedly 

different from other bald eagles. 

Conclusion 

We have reviewed the best scientific 

and commercial data available and have 

evaluated the data in accordance with 

50 CFR 424.14(b). On the basis of our 

review, we find that although the 

Sonoran Desert bald eagle population is 

discrete, it is not significant in relation 

to the remainder of the taxon. Sonoran 

Desert bald eagles lack any biologically 

or ecologically distinguishing factors. 

Although they do persist in an arid 

region, Sonoran Desert bald eagles do 

not have any adaptations that are not 

found in bald eagles elsewhere. The 

adaptability of the species allows its 

distribution to be widespread 

throughout the North American 

continent. Therefore, we conclude that 

the Sonoran Desert population of the 

bald eagle in the lower 48 States is not 

a listable entity under section 3(16) of 

the Act. 

Summary of Factors Affecting the 

Species 

Section 4 of the Act and its 

implementing regulations (50 CFR part 

424) set forth the procedures for listing 

species, reclassifying species, or 

removing species from listed status. 

‘‘Species’’ is defined by the Act as 

including any species or subspecies of 

fish or wildlife or plants, and any 

distinct vertebrate population segment 

of fish or wildlife that interbreeds when 

mature (16 U.S.C. 1532(16)). Once the 

‘‘species’’ is determined we then 

evaluate whether that species may be 

endangered or threatened because of 

one or more of the five factors described 

in section 4(a)(1) of the Act. We must 

consider these same five factors in 

delisting a species. We may delist a 

species according to 50 CFR 424.11(d) if 

the best available scientific and 

commercial data indicate that the 

species is neither endangered nor 

threatened for the following reasons: (1) 

The species is extinct; (2) the species 

has recovered and is no longer 

endangered or threatened (as is the case 

with the bald eagle); and/or (3) the 

original scientific data used at the time 

the species was classified were in error. 

A recovered species is one that no 

longer meets the Act’s definition of 

threatened or endangered. Determining 

whether a species is recovered requires 

consideration of the same five categories 

of threats specified in section 4(a)(1) of 

the Act. For species that are already 

listed as threatened or endangered, this 

analysis of threats is an evaluation of 

both the threats currently facing the 

species and the threats that are 

reasonably likely to affect the species in 

the foreseeable future following the 

delisting or downlisting and the 

removal or reduction of the Act’s 

protections. 

A species is ‘‘endangered’’ for 

purposes of the Act if it is in danger of 

extinction throughout all or a 

‘‘significant portion of its range’’ and is 

‘‘threatened’’ if it is likely to become 

endangered within the foreseeable 

future throughout all or a ‘‘significant 

portion of its range.’’ The word ‘‘range’’

in the significant portion of its range 

(SPR) phrase refers to the range in 

which the species currently exists. For 

the purposes of this analysis, we will 

evaluate whether the currently listed 

species, the bald eagle in the lower 48 

States, should be considered threatened 

or endangered. Then we will consider 

whether there are any portions of bald 

eagle’s range in danger of extinction or 

likely to become endangered within the 

foreseeable future. 

For the purposes of this final rule, we 

consider ‘‘foreseeable future’’ for the 

bald eagle to be 30 years. Bald eagles 

fully mature at 4 to 5 years of age 

(Buehler 2000, p. 19). Gerrard and 

Bortolotti (1988) observed that 

successful breeding may not occur for 2 

years or more after reaching maturity. 

Thus, a life cycle from birth to breeding 

is about 6 years (Gerrard and Bortolotti 

1988, p. 57). We used 5 bald eagle 

generations (30 years) to represent a 

reasonable biological timeframe to 

determine if threats could depress the 

population size and therefore would be 

significant. We have roughly 30 years of 

detailed information on how bald eagle 

populations have responded to the 

threats identified when the species was 

listed. Based on this body of 

information and the combination of bald 

eagle biology and the threats of greatest 

consequence (contaminant exposure, 

shooting, and habitat modification), we 

conclude that 30 years is a reasonable 

timeframe over which we can 

extrapolate the likely extent of the 

threats and their impact on the species. 

The following analysis examines all 

five factors currently affecting, or that 

are likely to affect, the bald eagle in the 

lower 48 States within the foreseeable 

future. 

A. The Present or Threatened 

Destruction, Modification, or 

Curtailment of Its Habitat or Range. 

This section will first describe the 

habitat needs of the bald eagle. It will 

then discuss the potential threats to that 

habitat, and the degree to which those 

threats are ameliorated by various 

factors. Our analysis concludes that: (1) 

The habitat threats to such a wideranging species, while not readily 

quantifiable, are much less significant 

than once feared given the strong 

recovery of the eagle over the last 30 

years; (2) the threats that do exist vary 

considerably across the landscape, 

based in part on the ownership of the 

land in question and the fact that many 

lands have significant protection 

independent of the Act; (3) nesting 

habitat on protected lands is likely 

sufficient to maintain the recovered 

population in the foreseeable future; (4) 

several regulatory mechanisms will 

limit the degree to which habitat loss 

will occur on other lands; and (5) recent 

anecdotal data suggest that even when 

habitat loss occurs, the impact on bald 

eagles may be less than previously 

anticipated. 

Throughout their life cycle, bald 

eagles are associated with a variety of 

aquatic habitats. Beyond this 

generalized need for aquatic habitat, 

bald eagles are not particularly 

specialized in their habitat needs, 

thriving near a variety of different 

environments, including reservoirs, 

lakes, rivers, estuaries, and coastal areas 

throughout North America. Within the 

aquatic habitats, bald eagles feed 

primarily on fish, but may also consume 

waterfowl, gulls, cormorants, and a 

variety of carrion. 

Bald eagles usually nest in trees near 

water, but may use cliffs in the 

southwestern United States and Alaska. 

Ground nests have also been reported 

from Alaska. Nests are usually built in 

large trees along shorelines, but may be 

up to one-half mile or more from the 

shoreline. Adults use the same breeding 

territory, and often the same nest, year 

after year. They may also use one or 

more alternate nests within their 

breeding territory. 

The habitat needs of bald eagles vary 

somewhat outside of the breeding cycle, 

although bald eagles are still strongly 


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dependent on aquatic habitats as their 

primary food source. The timing and 

distance of dispersal from the breeding 

territory varies. Some bald eagles stay in 

the general vicinity of their breeding 

territory while some migrate up to 

hundreds of miles to their wintering 

grounds and remain there for several 

months. Young eagles may wander 

randomly for several years before 

returning to nest in their natal areas. 

Eagles seek wintering (non-nesting) 

areas offering an abundant and readily 

available food supply with suitable 

night roosts. Night roosts typically offer 

isolation and thermal protection from 

winds. Bald eagles generally concentrate 

in large numbers in suitable habitat 

areas in the winter. Important breeding 

and wintering areas have generally been 

located in areas at distances from 

human activity. As discussed below, 

however, recent data have begun to 

challenge long-held assumptions that 

bald eagles require significant isolation 

from all human activity. 

The eagle’s decline was largely due to 

chemicals now known to impair 

reproductive success (see discussion of 

this threat under Factor E). Through the 

recovery planning process, however, 

various threats to habitat were noted, 

such as loss of nesting, roosting, and 

perching habitat through recreational 

shoreline development, forestry, and 

urban and suburban expansion. In 

addition, habitat can be degraded 

through human disturbance, especially 

during breeding season. However, as 

discussed in detail below, in the context 

of the eagle’s dramatic recovery (and 

continuing population increases), the 

threat posed by future destruction or 

modification of habitat is minor 

compared to what would be required for 

the bald eagle to be likely to become in 

danger of extinction throughout all or a 

significant portion of its range within 

the foreseeable future. 

Currently, habitat availability is not 

preventing the growth of the bald eagle 

population in the lower 48 States. Areas 

that were unoccupied have been 

repopulated, and the eagle population 

continues to increase, indicating that 

carrying capacity has not been reached 

in many parts of their range. Based on 

the most recent data, the population in 

a few States with relatively limited 

habitat may have started to stabilize; 

Colorado has shown a slight decline in 

the numbers of pairs between survey 

years of 2001 and 2005 (Ver Steeg 2006, 

p. 2). Other States continue to 

experience rapid population growth: the 

number of pairs in Illinois and Iowa 

doubled between 1999 and 2006 (Conlin 

2006, p. 1; Vonk 2006, p. 1). Most States 

are continuing to show a slight increase 

in the number of breeding pairs. The 

population in the lower 48 States as a 

whole will likely continue to increase in 

the foreseeable future but at a gradually 

declining rate that is much slower than 

has been documented during the past 30 

years of the recovery period. Once the 

carrying capacity has been reached in 

different parts of the range, we expect 

the population to naturally stabilize and 

then fluctuate. 

When the recovery planning started, 

the bald eagle population was at a 

precarious stage and any threat to the 

remaining birds was identified, given 

the uncertainty of its continued 

survival, much less recovery. At that 

time, any significant habitat loss 

(particularly if it affected the remaining 

pairs) was of grave concern. However, 

with the eagle population increasing by 

well over an order of magnitude since 

that time, the immediate concern posed 

by habitat loss has dissipated. The only 

remaining concern related to habitat is 

whether, over the long term, 

development or other factors might 

cause habitat loss sufficient to limit the 

eagle population to a point that the 

viability of the population is threatened. 

In the future, available habitat will 

almost certainly limit the population of 

bald eagles in the lower 48 States. 

Furthermore, we acknowledge that 

habitat loss will likely eventually result 

in slow declines of bald eagle 

populations in some areas. Through 

comments and information in our files, 

we are aware that heavy development 

pressures and important eagle habitat 

overlap in parts of Florida and the 

Chesapeake Bay region. According to 

the U.S. Census Bureau, Florida is the 

third fastest growing State in the nation, 

and the State’s human population is 

projected to increase by 79 percent by 

2030 (compared to 2000). The 

Chesapeake Bay region States 

(Maryland, Delaware, and Virginia) all 

have varying degrees of projected 

increase that average around 32 percent 

over the same time period. Moreover, 

the population of bald eagles in Florida 

has started to stabilize, not showing an 

increase or decrease between 2003 and 

2005. Thus, it is likely that the number 

of breeding pairs in Florida will begin 

to decline within the foreseeable future, 

and possible that the same result could 

occur in the Chesapeake Bay region. 

The relevant question under section 4 

of the Act, however, is whether such a 

decline will occur in the foreseeable 

future to a degree that the bald eagle is 

likely to become in danger of extinction 

again throughout all or a significant 

portion of its range. In analyzing this 

question, we considered the fact that the 

habitat threats that do exist vary 

considerably across the landscape. This 

is in part based on the ownership of the 

land in question—some lands have 

significant protection independent of 

the Act. Because the threats do vary 

across the range, we discuss in greater 

detail at the end of this section those 

portions of the range that have come to 

our attention based on comments or 

information in our files. 

One of the biological factors that will 

ensure the bald eagle is not now 

endangered or likely to become so in the 

foreseeable future is that bald eagles are 

not particularly specialized in the type 

of aquatic habitat they use, but instead 

thrive near a variety of different 

environments including reservoirs, 

lakes, rivers, estuaries, and the marine 

environment. Currently, bald eagles 

occupy one or more of these 

environments in each of the lower 48 

States, and have large breeding 

populations in those geographic areas 

that historically supported significant 

breeding populations. This tremendous 

distribution of bald eagles throughout 

the lower 48 States, combined with the 

species’ ability to exploit such a wide 

range of geographic habitat settings, 

provides an important buffer against any 

potential threats to any of the significant 

portions of the range and to the species 

as a whole. 

High quality habitat has been 

characterized as those areas in which 

human development and disturbance 

are absent (McGarigal et al. 1991). 

However, recent data suggest that eagles 

across many parts of their range are 

demonstrating a growing tolerance of 

human activities in proximity to nesting 

and foraging habitats. Eagles in these 

situations continue to successfully 

reproduce in settings previously 

considered unsuitable. For example, 

where our Southeastern nesting 

management guidelines have been 

followed in Florida, some bald eagle 

pairs have shown a remarkable 

adaptation to human presence by 

nesting in residential subdivisions and 

commercial and industrial parks, and on 

cell phone towers and electric 

distribution poles. A common thread 

throughout these urban and suburban 

landscapes is the availability of ample 

food sources such as natural lakes, 

rivers, and ponds; artificial stormwater 

retention ponds; and public landfills 

(Millsap et al. 2002, p. 10). A study of 

bald eagle nesting patterns in western 

Florida detected no differences in nestsite occupancy, nest success, or number 

of young fledged between bald eagles 

occupying suburban or rural nest sites, 

except bald eagles in suburban sites 

nested earlier (Millsap et al. 2002, pp. 

14, 25). In western Washington, 


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breeding bald eagles responded less to 

pedestrian activity than had been 

documented in other studies in the 

United States, possibly reflecting a 

higher degree of habituation to human 

activities by eagles in this area (Watson 

2004, p. 301). The Service has 

documented several cases in which bald 

eagles around the Chesapeake Bay have 

continued to nest and successfully 

produce young within distances that 

were previously considered too close to 

human activity (Koppie 2007a). In 

addition, in both Virginia and 

Maryland, compression of nesting 

territories has been observed, suggesting 

that the density of nesting pairs can be 

higher than once documented (Koppie 

2007a). This evidence suggests that as 

eagles begin to reach the carrying 

capacity in local areas and face 

development or other encroachments, 

some eagles will successfully adapt to 

these circumstances. To the extent that 

this is true, degradation of habitat due 

to human disturbance is not as large a 

threat as once believed. 

To understand the potential for 

nesting habitat loss due to development 

in the foreseeable future, we used a GIS 

(Geographic Information Systems) 

analysis to estimate the number of 

known bald eagle nests throughout the 

lower 48 States that occur on ‘‘protected 

land.’’ The ‘‘protected’’ land category 

includes Federal, State, Tribal, and 

other areas designated as privately 

protected, such as lands owned by The 

Nature Conservancy or similar nongovernmental entities. To identify such 

lands, we used the Conservation Biology 

Institute Protected Areas Database, the 

National Atlas Federal Lands data layer, 

and the State GAP Analysis data (Otto 

2007). Included in another data layer are 

the bald eagle nests in the lower 48 

States that are identified as a result of 

a compilation of data we received from 

individual States. 

The resolution and quality of this 

information was not at a highly detailed 

scale, so there may be nests assigned to 

the wrong type of land use. For 

instance, the data from the National 

Atlas Federal lands data layer only 

includes Federal lands of 640 acres or 

more. However, given that our analysis 

was done at a broad scale, the resolution 

and quality of this data can generally 

give us an indication of the percentage 

of nests over the entire 48 States on 

protected land. Our intent in this 

analysis was only to gain perspective on 

those lands on which eagle nesting 

habitat is not likely to be lost in the 

foreseeable future due to the particular 

land category status. These areas may 

not all be managed specifically for bald 

eagles; however, as discussed below, a 

variety of legal and practical 

considerations will act to minimize 

negative impacts to bald eagle habitat 

once the protections of the Act are 

removed. 

Through the GIS analyses, we have 

identified more than 6,000 bald eagle 

nests in the lower 48 States on lands 

that provide protection for bald eagles. 

Of these, more than 3,400 occur on 

Federal lands managed by the 

Departments of Agriculture or the 

Interior, and an additional 275 occur on 

lands managed by the Department of 

Defense, including approximately 170 

on lands managed by the U.S. Army 

Corps of Engineers. The remaining 

roughly 2,700 nests included within the 

6,000 bald eagle nest figure are found on 

lands in either State or private 

ownership. Based on many years of 

conducting consultations under section 

7 of the Act, reviewing habitat 

conservation plans under section 10 of 

the Act, reviewing National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321 et seq.) documentation for 

Federal actions, and other interactions 

with Federal and State agencies, we 

have found that management activities 

on public lands usually provide for 

maintaining some vegetation buffers of 

varying widths along riparian corridors 

and coastal areas. These were 

sometimes required by the Service as 

reasonable and prudent measures to 

address impacts to eagles, but often 

these buffers were incorporated into 

project planning because they were 

required to satisfy another of the action 

agencies’ governing environmental or 

management laws, or because 

maintaining such buffers represents a 

good management practice even in the 

absence of a legal requirement. The 

practice of maintaining vegetative 

buffers is particularly relevant to (and 

generally supportive of) bald eagle 

conservation, because of the need of the 

species to have nesting and roosting 

sites (generally in trees) in close 

proximity to water. 

As mentioned in the Effects of This 

Rule section, we intend to honor the 

existing incidental take statements 

associated with existing section 7 

consultations, as long as the action 

agency and other covered entities 

comply with all their terms and 

conditions. We therefore anticipate that 

habitat that would be either protected or 

conserved as a result of these Act 

authorizations remaining in place. 

Looking to the foreseeable future, each 

land management agency has its own 

authorizing statutes and implementing 

regulations that may either directly or 

indirectly conserve habitat for bald 

eagles, such as by means of buffers (as 

discussed above). The following 

paragraphs discuss some of the relevant 

authorities for the Federal agencies 

managing land with substantial 

numbers of eagle nests. 

The U.S. Forest Service reports that 

bald eagles occur on 142 National 

Forests in the lower 48 States (Bosch 

2006). More than 2,000 known bald 

eagle nests are found within these areas. 

The Forest Service manages most of its 

lands for multiple uses, including 

management for timber production, 

recreation, and the needs of wildlife, 

fish, and sensitive plants. Under the 

National Forest Management Act of 

1976 (16 U.S.C. 1600 et seq.), it is the 

policy of Congress that all forested lands 

in the National Forest System shall be 

maintained in appropriate forest cover 

with species of trees, degree of stocking, 

rate of growth, and conditions of stand 

designed to secure the maximum 

benefits of multiple use sustained yield 

management in accordance with land 

management plans. Particular habitat 

protection for bald eagle is afforded 

through the protection of streams, 

stream-banks, shorelines, lakes, 

wetlands, and other bodies of water 

from detrimental in changes in water 

temperature, blockages of water courses 

and deposits of sediment (16 U.S.C 

1604(g)(3)(E)(iii)). In developing, 

maintaining, and revising management 

plans for units of the National Forest 

System, the Secretary of Agriculture is 

required to provide for multiple-use and 

sustained-yield of the products and 

services obtained from the System in 

accordance with the Multiple-Use, 

Sustained-Yield Act of 1960, including 

coordination of outdoor recreation, 

range, timber, watershed, wildlife and 

fish, and wilderness (16 U.S.C. 

1604(e)(1)). 

The number of nests on Forest Service 

lands has grown substantially over the 

last 30+ years, and there is no indication 

that we have achieved the carrying 

capacity of the National Forest System. 

Even at some point in the future when 

the system’s carrying capacity is 

reached, the multiple-use, sustained 

yield policies of the U.S. Forest Service 

are generally consistent with the 

conservation needs of the bald eagle 

because they will maintain a large-scale, 

shifting mosaic that should provide 

generally stable habitat conditions and a 

stable number of breeding pairs 

throughout the National Forest System. 

The Service’s National Wildlife 

Refuge (NWR) System contains more 

than 160 national wildlife refuges that 

provide important nesting grounds for 

bald eagles (U.S. FWS 2006c, p. 1). 

These refuges host more than 600 bald 

eagle nests. The Service established four 


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refuges specifically to provide 

management for the bald eagle: the Bear 

Valley NWR in Oregon was established 

in 1978 to protect a major night roost 

site for wintering bald eagles; the Karl 

E. Mundt NWR in South Dakota/ 

Nebraska protects one of the important 

bald eagle winter roosting areas and 

provides important habitat for 100–300 

individual bald eagles; the Mason Neck 

NWR in Virginia protects essential 

nesting, feeding, and roosting habitat; 

and the James River NWR in Virginia 

protects one of the largest summer 

roosting areas for juvenile bald eagles 

east of the Mississippi River. 

The mission of the National Wildlife 

Refuge System is to administer a 

national network of lands and waters for 

the conservation, management, and 

where appropriate, restoration of the 

fish, wildlife, and plant resources and 

their habitats within the United States 

for the benefit of present and future 

generations of Americans (16 U.S.C. 

668dd). Refuges may be opened for 

public access and limited uses, with 

priority afforded to wildlife-dependent 

recreation. Evaluation of proposed uses 

typically requires an examination of the 

appropriateness and compatibility with 

the System mission and the purposes for 

which a particular refuge has been 

established, among other 

considerations. 

The System regulations at 50 CFR part 

27 contain a number of prohibitions 

regarding wildlife that are applicable to 

bald eagles, including taking, 

disturbing, or injuring them on refuge 

lands without a permit. In administering 

the System, the Secretary of the Interior 

shall provide for the conservation of 

fish, wildlife, and plants and their 

habitats within the System and ensure 

that the biological integrity, diversity, 

and environmental health of the System 

are maintained for the benefit of present 

and future generations of Americans. 

The Service applies those requirements 

through its Administrative Manual 

Chapter on Biological Integrity, 

Diversity, and Environmental Health 

(601 FW 3). Key underlying principles 

of the policy are that wildlife 

conservation comes first; each refuge is 

managed to ensure its biological 

integrity, diversity, and environmental 

health; and biological integrity, 

diversity, and environmental health is 

considered in a landscape context. 

The number of nests on refuges has 

also grown substantially over the last 

30+ years, and there is no indication 

that we have achieved the carrying 

capacity of the NWR system. When 

carrying capacity is reached at some 

point in the future, the policies and 

management practices of the Service, 

with their emphasis on wildlife 

conservation and the requirement that 

all uses of System lands meet the test of 

being compatible with the purposes for 

which a particular unit of the System 

was established, are consistent with the 

conservation needs of the bald eagle 

because they will provide generally 

stable habitat conditions and numbers 

of breeding pairs throughout the system. 

Therefore, we expect that units of the 

National Wildlife Refuge System will 

continue to be managed in ways that 

contribute substantially to the 

conservation of bald eagles and meet 

their habitat needs. 

Approximately 130 National Park 

units have bald eagles located within 

their boundaries, according to the 

National Park Service Endangered 

Species database (U.S. NPS 2006), with 

more than 300 bald eagle nests on the 

lands managed by the National Park 

Service (NPS). These lands include 

National Parks, National Seashores, 

National Monuments, and National 

Wild and Scenic Rivers. Lands managed 

by the National Park Service are subject 

to the NPS Organic Act of 1916, which 

provides that the ‘‘fundamental 

purpose’’ of those lands ‘‘is to conserve 

the scenery and the natural and historic 

objects and the wild life therein and to 

provide for the enjoyment of the same 

in such manner and by such means as 

will leave them unimpaired for the 

enjoyment of future generations’’ (16 

U.S.C. 1). Most units of the National 

Park System also have their own 

specific enabling legislation, but the 

1970 General Authorities Act makes it 

clear that all units are united into a 

single National Park System. 

Furthermore, no activities shall be 

allowed ‘‘in derogation of the values 

and purposes for which these various 

areas have been established, except as 

may have been or shall be directly and 

specifically provided by Congress’’ (16 

U.S.C. 1a–1). 

NPS regulations specifically protect 

wildlife, including nests, by prohibiting 

disturbing wildlife or nests from their 

natural state and by prohibiting take of 

wildlife and the intentional disturbance 

of nesting or breeding activities (36 CFR 

2.1(a), 2.2(a)). The basic policy 

document applied to the NPS is 

Management Policies 2006 (‘‘MP’’). 

Those policies provide that NPS will 

manage natural resources ‘‘to preserve 

fundamental physical and biological 

processes, as well as individual species, 

features, and plant and animal 

communities,’’ and ‘‘will try to maintain 

all the components and processes of 

naturally evolving park ecosystems’’

(MP 4.1). With respect to wildlife, NPS 

‘‘will maintain as parts of the natural 

ecosystems of parks all plants and 

animals native to park ecosystems’’ by 

‘‘preserving and restoring the natural 

abundances, diversities, distributions, 

habitats, and behaviors of native plant 

and animal populations and the 

communities and ecosystems in which 

they occur’’; ‘‘restoring native plant and 

animal populations in parks when they 

have been extirpated by past humancaused actions’’; and ‘‘minimizing 

human impacts on native plants, 

animals, populations, communities, and 

ecosystems, and the processes that 

sustain them’’ (MP 4.4.1). 

NPS relies on natural processes 

whenever possible to maintain native 

species, but ‘‘may intervene to manage 

individuals or populations of native 

species’’ if the intervention will not 

cause unacceptable impacts to the 

population of the species or to the 

ecosystem, and if it is necessary for one 

of several reasons, such as an 

unnaturally high or low population due 

to human influences or to protect a rare 

species (MP 4.4.2). Based on these 

requirements, management of NPS lands 

has and will continue to support the 

conservation needs of bald eagles, and 

there is little likelihood that eagles on 

NPS lands will suffer habitat-based 

disturbance. 

The Bureau of Land Management 

(BLM) manages lands with more than 

200 bald eagle nests. Similar to the U.S. 

Forest Service, BLM lands are generally 

managed for multiple-use purposes, 

under the Federal Land Policy and 

Management Act of 1976 (43 U.S.C. 

1701 et seq.), which includes a 

declaration of policy that ‘‘the public 

lands be managed in a manner that will 

protect the quality of scientific, scenic, 

historical, ecological, environmental, air 

and atmospheric, water resource, and 

archeological values; that, where 

appropriate, will preserve and protect 

certain public lands in their natural 

condition; that will provide food and 

habitat for fish and wildlife and 

domestic animals; and that will provide 

for outdoor recreation and human 

occupancy and use’’ (43 U.S.C. 

1701(a)(8). For mining activities, BLM 

provides specific protections for eagle 

nests and concentration areas (43 CFR 

3461.5(k) and (l)). As with lands of the 

National Forest System, such multipleuse practices are generally consistent 

with the conservation needs of bald 

eagles because on a system-wide basis 

they provide for a generally stable 

amount and distribution of bald eagle 

habitat. 

The Department of Defense and the 

U.S. Army Corps of Engineers 

collectively manage lands that host 

more than 440 bald eagle nests. 


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Department of Defense facilities that 

support at least 275 of these nests 

include some 43 Army, 17 Navy, 7 Air 

Force, and 3 Marine Corps installations 

with nesting or regular eagle use. Under 

the Sikes Act, the Secretary of Defense 

must provide for the conservation of 

natural resources on each installation 

(16 U.S.C. 670a), with an Integrated 

Natural Resources Management Plan. 

Each plan is prepared in cooperation 

with the Service and the State wildlife 

agency. As appropriate to the 

installation, the plan includes 

provisions for wildlife management 

(with respect to all wildlife, not just 

species listed under the Act), habitat 

enhancement, and wetland protection. 

As applicable, such plan’s primary 

management goals typically seek to 

maintain and improve forested habitat 

for eagles, minimize human disturbance 

in eagle nesting and wintering areas, 

improve food supplies, and minimize 

hazards to eagles. Nests are protected by 

special management areas. To maintain 

effective protections, installations have 

a priority to monitor their nesting and 

wintering eagles. 

In addition, two other authorities 

specific to management of migratory 

birds (including bald eagles) on 

Department of Defense installations are 

relevant. First, the Armed Forces are 

authorized by regulation under the 

Migratory Bird Treaty Act to take 

migratory birds incidental to military 

readiness activities (50 CFR 21.15). 

However, this authorization is 

contingent upon the Armed Forces 

conferring and cooperating with the 

Service to develop and implement 

appropriate conservation measures to 

minimize and mitigate any significant 

adverse effects on a population of a 

migratory bird species that the Armed 

Forces determine may result from those 

activities. Second, on July 31, 2006, the 

Department of Defense entered into a 

Memorandum of Understanding (MOU) 

with the Service under Executive Order 

13186, discussed below. 

The remainder of the nests on Defense 

and Corps lands, at least 65 nests, are on 

lands managed by the Army Corps of 

Engineers. These lands include major 

riparian corridors, such as the 

Mississippi and Missouri Rivers, 

associated with large civil works 

projects maintained for navigation and 

flood control. The projects, with their 

aquatic suitable habitat for eagles, are 

likely to remain in place in the 

foreseeable future. To the extent further 

work on these projects is proposed, 

established policies require the Corps to 

consider opportunities to enhance 

habitat for wildlife (33 CFR 236.4(b)), 

including bald eagles. The Corps must 

also consult with the Service under a 

provision of the Fish and Wildlife 

Coordination Act (16 U.S.C. 662) to 

determine how the Corps can protect 

wildlife, again including bald eagles. 

While Defense and Corps lands are 

managed primarily for military 

readiness and civil projects, they have 

historically made significant, positive 

contributions to eagle conservation. 

Eagles have also adapted to many of the 

military, training, and operational 

activities on these lands. Because of the 

management plans and conservation 

measures in place on the Defense and 

Corps lands, the Service believes that 

these lands will continue to contribute 

to eagle recovery for the foreseeable 

future. 

According to the GIS analysis 

described above, approximately 40 

percent of the total of approximately 

15,000 known bald eagle nests occur 

within the ‘‘protected lands’’ category 

where long-term adverse habitat 

modification is unlikely to occur. Note 

that there are more known nests than 

known breeding pairs. This is because 

some breeding pairs have more than one 

nest and because some known nests are 

abandoned (not currently maintained by 

any breeding pair). The underlying data 

used in this analysis is with respect to 

all known nests, and is without any 

indication of whether a particular nest 

is currently active, serves as an alternate 

nest, or has been abandoned. On the 

other hand, there are certainly 

additional nests on protected lands (and 

elsewhere) currently used by breeding 

pairs that are not in our data set. The 

pilot study conducted for the bald eagle 

post-delisting monitoring plan indicates 

that the State data for number of nests 

only accounts for 42 to 81 percent of 

actual nests (Otto 2007). 

Although there is not a scientifically 

established quantitative correlation 

between nests and breeding pairs, and 

therefore we cannot state precisely how 

many breeding pairs in fact nest on 

protected lands in a given year, these 

data give us an indication of the amount 

of nesting habitat that is protected. 

Moreover, the 40 percent of nests on 

protected lands are distributed 

throughout all areas that are significant 

for breeding and wintering. These areas 

therefore will provide protections to 

significant areas of bald eagle nesting, 

roosting, perching, and feeding habitat 

and will continue to provide 

strongholds throughout the range of the 

species in the foreseeable future. 

Combining the five recovery plans’

goals for the bald eagle breeding 

population leads to a total delisting goal 

of about 4,000 breeding pairs in the 

lower 48 States. This level, 

coincidentally, represents about 40 

percent of the 9,789 currently known 

breeding pairs. While the numbers of 

recorded nests to breeding pairs are not 

exact comparisons and, as indicated 

above, the protection on protected lands 

is not absolute, our analysis does 

indicate that it is highly likely that the 

number of breeding pairs necessary to 

maintain the species’ recovery can be 

accommodated for the foreseeable future 

on the protected lands. 

In addition to the habitat protection 

afforded on account of management 

related to ownership, several other 

factors will limit the degree to which 

habitat loss will occur on any lands in 

the foreseeable future. First, eagle 

habitat in some areas, because of its 

remoteness, faces little threat associated 

with human population expansion. For 

example, northern Minnesota, 

Wisconsin, and Michigan have 2,859 

breeding pairs and development 

pressures are negligible within the 

northern portions of these States. 

Second, a number of applicable laws 

will at least indirectly protect bald eagle 

habitat. The most important of these is 

the BGEPA, a Federal statute that 

applies throughout the United States 

regardless of land ownership status. The 

BGEPA (16 U.S.C. 668–668d), enacted 

in 1940 and since amended, was then 

intended to be the primary vehicle to 

protect and preserve bald eagles. The 

statute prohibits anyone, without a 

permit issued by the Secretary of the 

Interior, from ‘‘taking’’ bald eagles, 

including their parts, nests, or eggs (16 

U.S.C 668(a)). The BGEPA further 

defines ‘‘take’’ as ‘‘pursue, shoot, shoot 

at, poison, wound, kill, capture, trap, 

collect, molest or disturb’’ (16 U.S.C. 

668c). 

Even after the bald eagle was added 

to the List of Threatened and 

Endangered Wildlife under the Act, 

BGEPA’s prohibition against 

disturbance continued to be an 

important component in protecting 

eagles from human interference. For 

instance, the Service, in conjunction 

with various States, developed 

guidelines based upon BGEPA that have 

been an essential component of our 

technical assistance to the public and 

have helped people avoid harmful 

impacts to eagles. 

But given that the BGEPA will now be 

the primary law preserving bald eagles, 

and recognizing the need for 

predictability in implementing it in the 

foreseeable future, we further clarified 

our interpretation of the BGEPA’s take 

prohibition. On June 5, 2007, we 

published a final rule (72 FR 31132, 

effective on July 5, 2007) defining the 


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term ‘‘disturb’’ under 50 CFR 22.3 as 

meaning: 

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 (72 

FR 31139). 

This definition largely reflects how 

‘‘disturb’’ has been interpreted in the 

past by the Service and other Federal 

and State wildlife and land management 

agencies. The final definition of 

‘‘disturb’’ encompasses impacts that, 

based on the best scientific information 

available, are likely to cause injury to an 

eagle, or a decrease in its capacity to 

reproduce. This may include effects 

from disturbance caused by habitat 

manipulation. 

Although the BGEPA is not a land 

management law (it contains no 

provisions that directly protect habitat 

except for nests), it does protect eagles 

in their habitat. Activities that disrupt 

eagles at nests, foraging areas, and 

important roosts can illegally disturb 

eagles. Therefore, areas adjacent to eagle 

nests, important foraging areas, and 

communal roost sites are indirectly 

accorded protection under the BGEPA 

to the degree that their loss would 

disturb or kill eagles. Those losses may 

result from habitat alteration. For 

instance, in our final rule defining 

‘‘disturb’’ we noted: 

Removal of trees is not in itself a violation 

of the Eagle Act. The impacts of such action 

can be a violation, however, if the loss of the 

trees kills an eagle, or agitates or bothers a 

bald or golden eagle to the degree that results 

in injury or interferes with breeding, feeding, 

or sheltering habits substantially enough to 

cause a decrease in productivity or nest 

abandonment, or create the likelihood of 

such outcomes (72 FR 31137). 

We also intend the definition to apply 

to a situation where eagles, as part of 

their normal nesting behavior, return to 

the vicinity of the nest, but the habitat 

alterations are so vast in scale that the 

eagles become agitated as a result, alter 

their behavior, and never return to the 

nest itself (72 FR 31136). 

We have also finalized after public 

notice and comment National Bald 

Eagle Management Guidelines (72 FR 

31156; June 5, 2007) that are to be used 

in conjunction with this new definition 

of the term ‘‘disturb.’’ The Guidelines 

are intended to: (1) Publicize the 

provisions of the BGEPA that continue 

to protect bald eagles, in order to reduce 

the possibility that people will violate 

the law; (2) advise landowners, land 

managers, and the general public of the 

potential for various human activities to 

disturb bald eagles; and (3) encourage 

additional nonbinding land 

management practices that benefit bald 

eagles. The Guidelines themselves are 

not law. Rather, they are 

recommendations based on several 

decades of behavioral observations, 

science, and conservation measures to 

avoid or minimize adverse impacts to 

bald eagles. The document is intended 

primarily as a tool for landowners and 

planners who seek information and 

recommendations regarding how to 

avoid disturbing bald eagles. 

It is important to note that the 

Guidelines contain numerous 

recommendations that relate to bald 

eagle habitat. For instance, to avoid 

disturbing nesting bald eagles, we 

recommend: (1) Keeping a distance 

between the activity and the nest 

(distance buffers), (2) maintaining 

preferably forested (or natural) areas 

between the activity and around nest 

trees (landscape buffers), and (3) 

avoiding certain activities during the 

breeding season. The buffer areas serve 

to minimize visual and auditory impacts 

associated with human activities near 

nest sites. Ideally, buffers would be 

large enough to protect existing nest 

trees and provide for alternative or 

replacement nest trees. Again, the 

primary purpose of these Guidelines is 

to provide information that will 

minimize or prevent violations of only 

Federal laws governing bald eagles. 

When this rule becomes effective, the 

Act’s protections and prohibitions will 

no longer apply to the bald eagle. We 

recognize that the above-described 

BGEPA habitat protections that will 

remain are not identical to those 

afforded under the Act, nor are they 

intended to be. There is, however, 

considerable overlap in the statutory 

definitions of ‘‘take’’ under both statutes 

(16 U.S.C. 1532(19) and 668c). 

Moreover, the regulatory definitions of 

‘‘harm’’ and ‘‘harass’’ (50 CFR 17.3) that 

further define the term ‘‘take’’ under the 

Act are similar to the newly 

promulgated ‘‘disturb’’ definition under 

BGEPA. 

As described, we have interpreted 

‘‘disturb’’ to include certain biological 

or behavioral effects caused by 

activities, including some habitat 

manipulation. This view is supported 

by the only court to have addressed the 

relationship between the prohibitions of 

the Act and the BGEPA: 

Both the Act and the Eagle Protection Act 

prohibit the take of bald eagles, and the 

respective definitions of ‘‘take’’ do not 

suggest that the ESA provides more 

protection for bald eagles than the Eagle 

Protection Act* * *. The plain meaning of 

the term ‘‘disturb’’ is at least as broad as the 

term ‘‘harm,’’ and both terms are broad 

enough to include adverse habitat 

modification. 

(Contoski v. Scarlett, Civ No. 05–2528 

(JRT/RLE), slip op. at 5–6 (D. Minn. Aug 

10, 2006). 

Unlike the Act, the BGEPA does not 

include a private right of action, 

meaning a third party cannot bring legal 

action to enforce the statute, but the 

BGEPA provides criminal and civil 

penalties for persons who ‘‘take, 

possess, sell, purchase, barter, offer to 

sell, purchase or barter, transport, 

export or import, at any time or any 

manner, any bald eagle * * * or any 

golden eagle, alive or dead, or any part, 

nest, or egg thereof ’’ (16 U.S.C. 668 (b)). 

A violation of the Act can result in a 

criminal fine of $100,000 ($200,000 for 

organizations), imprisonment for one 

year, or both, for a first offense. 

Penalties increase substantially for 

additional offenses, and a second 

violation of this Act is a felony. We 

anticipate that traditional governmental 

enforcement of the BGEPA prohibitions 

will continue to have a deterrent effect 

despite the absence of a private right of 

action. 

Finally, the Act provides broad 

substantive and procedural protections 

for listed species but at the same time 

allows significant flexibility to permit 

activities that affect listed species. In 

particular, the Act provides that we may 

exempt or authorize the incidental take 

of listed wildlife in the course of 

otherwise lawful activities (sections 

7(b)(4) and 10(a)(1)(B), respectively). 

Nationwide, since 2002, the Service has 

issued an average of 52 incidental take 

statements per year that covered 

anticipated take of bald eagles under 

section 7 of the Act. During that same 

5-year period, we also issued about two 

(1.8) incidental take permits per year 

under section 10(a)(1)(B) of the Act for 

bald eagles. The requirements, 

including minimization, mitigation, or 

other conservation measures, of those 

authorizations were designed to ensure 

that those actions did not jeopardize the 

continued existence of the bald eagle. It 

is also apparent that these limited 

authorizations did not impede the 

recovery of the bald eagle. The number 

of section 7 informal consultations 

concluding that the bald eagle would 

not likely be adversely affected by a 

particular action is also notable. For 

example, in 2006, although we issued 

57 section 7 incidental take statements, 

we engaged in 5,184 informal 

consultations where take was either not 

anticipated, or averted through early 

coordination, incorporation of 


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management recommendations, or 

project modification. 

The regulations at 50 CFR part 22 

govern the issuance of bald eagle 

permits for certain types of take, 

transportation, and possession, such as 

for Indian religious purposes, scientific 

research and exhibition, and 

depredation. The BGEPA regulation 

does not presently contain take 

mechanisms similar to that of the Act 

with respect to incidental take coverage. 

On June 5, 2007, however, we published 

a proposed rule to create such a 

permitting scheme under the BGEPA (72 

FR 31141). The public comment period 

closes on September 4, 2007. The 

regulations we have proposed would (1) 

establish a take permit under the 

BGEPA, (2) provide BGEPA 

authorizations comparable to the 

authorizations granted under the Act to 

entities who continue to operate in full 

compliance with the terms and 

conditions of permits issued under 

section 10 of the Act and incidental take 

statements issued under section 7 of the 

Act, and (3) authorize take of eagle nests 

in limited circumstances that pose a risk 

to human safety or to the eagles 

themselves. 

We anticipate that, if that proposal is 

adopted through the final rule, the 

majority of permits would be issued to 

cover activities that cause disturbance 

in proximity to eagle nests, important 

foraging sites, and communal roosts. 

However, by adhering to the National 

Bald Eagle Management Guidelines, 

landowners and project proponents will 

be able to avoid bald eagle disturbance 

under the BGEPA most of the time. We 

anticipate only rarely issuing permits 

for take associated with activities that 

adhere to the Guidelines because the 

great majority of such activities will not 

take bald eagles. In this capacity, the 

Guidelines and technical advice that we 

will provide will function much like our 

informal consultations under section 7 

of the Act, but will be available to all 

landowners. If when applying the 

Guidelines, avoiding disturbance is not 

practicable, the project proponent may 

apply for a take permit. Additionally, in 

some limited cases, where other forms 

of take besides disturbance are 

unavoidable, we anticipate that a permit 

may be issued for such other form of 

take. 

For reasons enumerated in our 

proposal, we cautiously estimate the 

number of eagle take permits would 

increase if the proposal is adopted from 

an average of 54 authorizations 

currently issued under the Act to 300 

BGEPA permits, annually. But we may 

only issue these authorizations if they 

are ‘‘compatible with the preservation’’

of bald eagles (16 U.S.C. 668a). Like the 

Act, this BGEPA standard acknowledges 

that limited take of eagles is not 

inconsistent with the protection of the 

species. 

As suggested in our proposed rule, we 

believe the demand for permits, and the 

effects of issuing those permits, both 

individually and cumulatively, 

including minimization and mitigation 

measures, would not be significant 

enough to cause a decline in eagle 

populations from current levels. Our 

proposal identifies a recognized 

threshold for determining the level of 

decline that would be incompatible 

with the BGEPA standard, which we 

regularly employ to assess other species 

we manage under the MBTA. We 

recognize that external factors could 

arise that negatively affect eagle 

populations. Whatever the cause, if data 

suggest population declines are 

approaching a level where additional 

take would be incompatible with the 

preservation of the eagle, we would 

refrain from issuing permits until such 

time that we determine the take would 

be compatible with the preservation of 

the bald eagle. For a fuller explanation 

of the proposed threshold and 

safeguards, see the proposed rule at 72 

FR 31143–31144. 

In summary, the BGEPA will remain 

in force following delisting. The BGEPA 

prohibits the take of bald eagles, 

including disturbance, which we have 

identified and interpreted to occur in 

some circumstances as a result of 

habitat alteration. Adherence to the 

Guidelines, as appropriate in a given 

situation, may provide for buffers or 

other measures that protect bald eagle 

habitat on both private and public 

lands. Although a take permitting 

scheme has been proposed, it should 

not significantly diminish these habitat 

protections. The proposed permitting 

mechanism should not reduce the bald 

eagle population to a level that might 

necessitate re-listing. Rather, based on 

the current proposal, we conclude that 

the number of anticipated permits, 

coupled with BGEPA’s protective 

‘‘preservation’’ standard, should ensure 

that the population will not decline 

below current levels. Therefore, we 

expect BGEPA to contribute to the 

availability of habitat for the recovered 

bald eagle population in the foreseeable 

future. 

To a much lesser extent, the MBTA 

also provides indirect protection to bald 

eagle habitat. The MBTA makes it 

unlawful to at any time, by any means 

or in any manner, to pursue, hunt, take, 

capture, kill, attempt to take, capture, or 

kill, possess, offer for sale, sell, offer to 

barter, barter, offer to purchase, 

purchase, deliver for shipment, ship, 

export, import, cause to be shipped, 

exported, or imported, deliver for 

transportation, transport or cause to be 

transported, carry or cause to be carried, 

or receive for shipment, transportation, 

carriage, or export, any migratory bird, 

any part, nest, or eggs of any such bird, 

or any product, whether or not 

manufactured, which consists, or is 

composed in whole or part, of any such 

bird or any part, nest, or egg thereof (16 

U.S.C 703(a)). Bald eagles are among the 

migratory birds protected by the MBTA. 

Therefore, a modification to eagle 

habitat that directly takes or kills a bald 

eagle (such as cutting down a nest tree 

with chicks present) would constitute a 

violation of the MBTA, as well as the 

BGEPA. 

The Clean Water Act (CWA) (33 

U.S.C. 1251 et seq.) is the cornerstone of 

surface water quality protection in the 

United States. It will continue to protect 

aquatic habitats upon which the bald 

eagle depends following delisting. The 

CWA employs a variety of regulatory 

and non-regulatory tools to sharply 

reduce direct pollutant discharges into 

waterways, finance municipal 

wastewater treatment facilities, and 

manage polluted runoff. These tools are 

employed to achieve the broader goal of 

restoring and maintaining the chemical, 

physical, and biological integrity of the 

nation’s waters so that they can support 

‘‘the protection and propagation of fish, 

shellfish, and wildlife and * * * 

recreation in and on the water’’ (33 

U.S.C. 1251(a)(2)). 

The first step in achieving these goals 

is the establishment of water quality 

standards (WQS), either by States or the 

Environmental Protection Agency (EPA) 

(33 U.S.C. 1313). Necessary reductions 

in pollutant loading are achieved by 

implementing the following: (1) The 

Section 402 National Pollution 

Discharge Elimination System permit 

program, covering point sources of 

pollution; (2) the Section 404 permitting 

program, regulating the placement of 

dredged or fill materials into wetlands 

and other waters of the United States; 

and (3) Section 401, which requires 

federal agencies to obtain certification 

from the State, territory, or Indian tribes 

before issuing permits that would result 

in increased pollutant loads to a 

waterbody. Surface waters are 

monitored to determine whether the 

WQS are met. If they are, then antidegradation policies and programs are 

employed to keep the water quality at 

acceptable levels. If waterbodies are not 

meeting WQS, they must be identified 

and a strategy for meeting the standards 

developed. The most common type of 

strategy is the development of a Total 


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Maximum Daily Load (TMDL). TMDLs 

determine what level of pollutant load 

would be consistent with meeting WQS. 

TMDLs also allocate acceptable loads 

among sources of the relevant 

pollutants. These regulatory programs, 

coupled with the CWA’s protective 

goals, will continue to help protect the 

aquatic habitats and prey species of the 

bald eagle in the foreseeable future. 

In 2001, the President signed 

Executive Order 13186, 

‘‘Responsibilities of Federal Agencies to 

Protect Migratory Birds,’’ requiring 

Federal agencies to incorporate 

migratory bird conservation measures 

into their agency activities. Under this 

Executive Order, each Federal agency 

whose activities may adversely affect 

migratory birds was required to enter 

into a Memorandum of Understanding 

(MOU) with the Service, outlining how 

the agency will promote conservation of 

migratory birds. The Executive Order 

has a number of provisions that 

specifically relate to habitat, including 

the requirements that agencies, as 

practicable, (1) restore and enhance 

habitat, (2) prevent or abate the 

pollution or detrimental alteration of the 

environment, (3) design habitat 

conservation principles, measures, and 

practices into agency plans and 

planning processes, (4) ensure that 

NEPA analyses evaluate the effects of 

actions and agency plans on migratory 

birds, with emphasis on species of 

concern, and (5) identify where 

unintentional take reasonably 

attributable to agency actions is having, 

or is likely to have, a measurable 

negative effect on migratory bird 

populations, focusing first on species of 

concern, priority habitats, and key risk 

factors. 

The Executive Order also encourages 

an agency to implement those criteria 

immediately even if it has not yet 

completed its MOU. Two MOUs have 

been approved to date with the 

Department of Defense (U.S. FWS 

2006d) and the Department of Energy 

(U.S. FWS 2006e) that emphasize a 

collaborative approach to conservation 

of migratory birds, including 

minimizing disturbance to breeding, 

migration, and wintering habitats. While 

these MOUs are non-binding and 

therefore are not considered here as 

existing regulatory mechanisms, they 

provide an opportunity for us to 

continue to reduce the threat of habitat 

loss to bald eagles after delisting by 

working with our Federal partners. 

In addition, the Fish and Wildlife 

Coordination Act (16 U.S.C. 661–667d) 

(FWCA) requires that agencies 

sponsoring, funding, or permitting 

activities related to water resource 

development projects request review by 

the Service and the State natural 

resources management agency. The 

Service’s review is non-binding, and 

therefore the Coordination Act is not 

considered here as an existing 

regulatory mechanism. However, given 

that bald eagles reside in aquatic 

habitats, FWCA will allow the Service 

to continue to make recommendations 

on minimizing and offsetting impacts 

that might occur from these types of 

activities on bald eagles. 

In conclusion, the bald eagle 

population is continuing to increase in 

the lower 48 States, showing that 

reduced availability of habitat is not a 

current threat to the species. Nesting 

habitat is secure on many public and 

private locations throughout the lower 

48 States. Although localized habitat 

loss due to development may be a threat 

to individual bald eagles in the 

foreseeable future, particularly on 

private lands, we expect these threats 

will be reduced by the Federal laws that 

will remain in effect after delisting (e.g., 

BGEPA, MBTA, and CWA) and will not 

be of sufficient magnitude or intensity 

to threaten or endanger the species 

throughout all or a significant portion of 

its range. In addition, bald eagles have 

demonstrated increasing levels of 

tolerance to human disturbance that 

will allow bald eagles to use habitats 

previously thought to be unavailable 

due to disturbance. 

Even in the areas where the threat of 

development is the greatest, we find that 

the bald eagle is secure for the 

foreseeable future. In the Chesapeake 

Bay region, as discussed in our response 

to comments above, at least 482 

breeding pairs nest on federal lands, and 

we do not anticipate that number to 

drop in the foreseeable future, even if 

the numbers of breeding pairs 

eventually begin to decrease on some 

other lands (particularly private lands). 

Even in Florida, where the development 

pressure outside of protected lands is 

likely to be greatest, the current 

population of over 1,133 breeding pairs 

could suffer a substantial decrease 

(which we think unlikely within the 

foreseeable future, for all of the reasons 

discussed above) without the bald eagle 

being or likely to become in danger of 

extinction. The recovery goal for the 

southeastern region, as updated by the 

recovery team, is for 1,500 breeding 

pairs. The southeastern region includes 

Alabama, Arkansas, Florida, Georgia, 

Kentucky, Louisiana, Mississippi, North 

Carolina, South Carolina, Tennessee, 

and eastern Texas. Florida’s current 

bald eagle estimate alone is 76 percent 

of what would be needed for the entire 

11-State region. Florida would have to 

reverse its upward trend and lose nearly 

two-thirds of its current breeding pairs 

to get back down to the southeastern 

recovery goal. We have no data 

suggesting that a change of this 

magnitude is reasonably foreseeable. 

Finally, although the limited habitat 

available in Arizona makes the bald 

eagles there particularly vulnerable to 

habitat threats, as discussed elsewhere, 

Arizona is not a significant portion of 

the range of the bald eagle, and what 

threats do exist there will not affect the 

conservation of the species throughout 

all of the lower 48 States, much less its 

entire range. Therefore, threats of 

present or future destruction, 

modification, or curtailment of the bald 

eagle’s habitat or range do not rise to the 

level where the bald eagle population in 

the lower 48 States meets the definition 

of either threatened or endangered 

throughout all or a significant portion of 

its range. 

B. Overutilization for Commercial, 

Recreational, Scientific, or Educational 

Purposes. The bald eagle population’s 

first major threat was large-scale 

mortality from unregulated shooting 

that occurred early in the last century. 

The threat was significantly reduced 

when the shooting of bald eagles was 

prohibited in 1940 with the Bald Eagle 

Protection Act, which is now the 

BGEPA. Shooting of bald eagles was 

prohibited by an additional law when 

bald eagles were added to the list of 

birds protected by the MBTA in 1972. 

The Madison National Wildlife Health 

Center monitored causes of wildlife 

mortality, between 1963 and 1993, 

including bald eagle mortality. Out of 

the 4,300 bald and golden eagles 

rangewide (including Alaska) that were 

known to be killed, 15 percent of the 

bald eagles were killed due to shooting 

(La Roe et al. 1995, p. 68). Even if all 

of the 4,300 eagle deaths that were 

investigated were bald eagles, the deaths 

from shooting would be around 645 

deaths spread across a 30-year 

timeframe. In 1997, Alaska alone had 

8,250 breeding pairs (Buehler 2000, p. 

37), and the Service estimated the lower 

48 States population as 5,295 breeding 

pairs. In addition, during this same 

timeframe, the bald eagle population 

continued to increase, suggesting that 

this level of mortality was not a serious 

threat to the bald eagle in the lower 48 

States. Since this threat is not centered 

in any specific geographic area, there 

are no significant portions of the range 

that might be threatened for this reason 

with extinction in the foreseeable 

future. 

There is no legal commercial or 

recreational use of bald eagles, and such 

uses of bald eagles will remain illegal 


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into the foreseeable future under BGEPA 

and MBTA. We consider current laws 

and enforcement measures sufficient to 

protect the bald eagle from illegal 

activities, including trade. The BGEPA 

prohibits the taking or possession of, 

and commerce in, bald and golden 

eagles, with limited exceptions. The law 

provides significant protections for bald 

eagles by prohibiting, without specific 

authorization, take, possession, sale, 

purchase, barter, offering to sell or 

purchase or barter, transport, export or 

import any bald or golden eagle, alive or 

dead, or any part, nest, or egg thereof. 

Take under the BGEPA is defined as ‘‘to 

pursue, shoot, shoot at, poison, wound, 

kill, capture, trap, collect, molest or 

disturb’’ (16 U.S.C. 668c). 

The Service will continue to enforce 

the take prohibitions in the BGEPA. 

Over the past 5 years, the Service has 

seen an increase in the investigation of 

suspected BGEPA violations. In 2006, 

324 cases under BGEPA were 

investigated, a portion of which were 

bald eagles (Garlick 2007). Legal imports 

and exports of bald eagle parts, feathers, 

and live birds have increased over the 

past 5 years. In 2006, there were 142 

bald eagle imports and exports of which 

the Service is aware (Garlick 2007). 

These numbers are still relatively low 

compared to the bald eagle population 

in the lower 48 States of 9,789 breeding 

pairs, particularly given that many of 

these circumstances did not involve 

taking of live birds from the wild. As the 

population of bald eagles continues to 

increase, we would expect a 

corresponding increase in the number of 

investigations. We expect that even if 

this same low level of illegal take, and 

import and export of eagle feathers and 

parts, to continue in the foreseeable 

future, it will be without any significant 

effects to the species. 

The bald eagle is a designated 

migratory bird that benefits from 

protections under the Migratory Bird 

Treaty Act (MBTA) (16 U.S.C. 703–712), 

which implements various treaties and 

conventions between the United States 

and Canada, Japan, Mexico, and the 

former Soviet Union for the protection 

of migratory birds. Unless permitted by 

regulations, the MBTA provides that it 

is unlawful to pursue, hunt, take, 

capture, or kill; attempt to take, capture 

or kill; possess, offer for sale, sell, offer 

to barter, barter, offer to purchase, 

purchase, deliver or cause to be 

shipped, exported, imported, 

transported, carried or received any 

migratory bird, part, nest, egg or 

product, manufactured or not. 

We exercise very strict control over 

the use of bald eagles or their parts for 

scientific, education, and Native 

American religious activities (50 CFR 

22.21, 22.22). To respond to the 

religious needs of Native Americans, we 

established the National Eagle 

Repository in Commerce City, Colorado, 

which serves as a collection point for 

dead eagles (see 50 CFR 

21.31(e)(4)(vi)(C)). As a matter of policy, 

all Service units (as well as many other 

Federal and State agencies) transfer 

salvaged bald eagle parts and carcasses 

to this repository. Members of Federally 

recognized tribes can obtain a permit 

from us authorizing them to receive and 

possess whole eagles, parts, or feathers 

from the repository for religious 

purposes. After removal from protection 

under the Act, we will still have the 

ability to issue permits under BGEPA 

for limited exhibition and education 

purposes, selected research work, and 

other special purposes, including Native 

American religious use, consistent with 

Federal regulations implementing the 

BGEPA (50 CFR part 22). We will not 

issue these permits if they are 

incompatible with the preservation of 

the bald eagle under the BGEPA or the 

terms of the conventions underlying the 

MBTA (16 U.S.C. 668a and 16 U.S.C. 

704(a), respectively), and therefore, 

these permits are not a threat to the bald 

eagle population in the lower 48 States. 

In summary, there is no current 

overutilization of the bald eagle for 

commercial, recreational, scientific, or 

educational purposes, and the 

protections afforded by BGEPA and 

MBTA will continue to reduce this 

threat to prevent the likelihood of 

endangerment for the bald eagle in the 

lower 48 States or a significant portion 

of its range into the foreseeable future. 

C. Disease or Predation. Predation has 

been documented, but it does not 

constitute a significant problem for bald 

eagle populations. Eggs, nestlings, and 

fledglings are the most vulnerable to 

predators. Eggs in tree nests have been 

reportedly predated by black-billed 

magpies (Pica pica), gulls, ravens and 

crows, black bears (Ursus americanus), 

and raccoons (Procyon lotor). Nestlings 

have been reportedly killed by black 

bears, raccoons, hawks and owls, crows 

and ravens, bobcat (Felis rufus), and 

wolverine (Gulo gulo), although there is 

little actual documentation. Nestling 

mortality is more likely due to the 

effects of starvation and sibling attack. 

Few nonhuman species are capable or 

likely to prey on immature or adult bald 

eagles. The exception to this is at the 

time of nest departure; fledglings on the 

ground are vulnerable to mammalian 

predators. 

Immatures and adults in poor 

condition from starvation, injury, or 

disease may also be vulnerable to 

mammalian predators. Bald eagles will 

defend their nest against other avian 

species, especially ravens and other 

raptor species (Buehler 2000, p. 14). 

Diseases such as avian cholera, avian 

pox, aspergillosis, tuberculosis, and 

botulism may affect individual bald 

eagles, as do parasites such as the 

Mexican chicken bug, but are not 

considered to be a significant threat to 

overall bald eagle numbers. According 

to the National Wildlife Health Center 

(NWHC) in Madison, Wisconsin, only a 

small percentage of bald eagles 

submitted to the NWHC between 1985 

and 2003 died of infectious disease. The 

widespread distribution of the species 

generally helps to protect the bald eagle 

from catastrophic losses due to disease. 

Recently, H5N1 high path avian 

influenza may affect eagles. Currently 

the Department of the Interior is testing 

migratory birds for the presence of 

H5N1 high path avian influenza. At this 

time, there are no confirmed cases of 

migratory birds, including bald eagles, 

testing positive for avian influenza in 

the United States (USGS 2007a). 

Based on data compiled from the 

National Wildlife Health Center, 99 bald 

eagles died of avian vacuolar 

myelinopathy (AVM) between 1994 and 

2003. Confirmed cases of bald eagle 

deaths due to AVM are recorded in 

Arkansas, North Carolina, South 

Carolina, and Georgia. Studies on avian 

vacuolar myelinopathy are continuing, 

but the cause is still unknown. Natural 

or manmade toxins are suspected as the 

most likely cause of AVM based on 

histopathological findings. A sentinel 

study demonstrated that exposure to the 

agent that causes AVM is site-specific, 

seasonal, and relatively short in 

duration (USGS 2007b). These States’

bald eagle populations have increased 

between 1994 and 2005, and, based on 

the most recent population estimates, 

have a total of 392 breeding pairs. Based 

on the increase in the population levels, 

these localized mortalities are not 

having a significant impact on the bald 

eagle in the lower 48 States or these 

portions of the range. We do not expect 

this disease to be a threat in the 

foreseeable future because there has 

been no increase in the number of 

mortalities throughout the 9 years of 

monitoring and the number of 

mortalities is extremely small in relation 

to the total population. The mortalities 

are also small in relation to the 

population in these portions of the 

range, such that these portions will not 

become threatened in the foreseeable 

future. 

In more recent years, the West Nile 

Virus (WNV) has affected some 

individual bald eagles. According to 


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NWHC, between January 2002 and 

January 2004, 81 bald eagles were tested 

for WNV at the Center, and four tested 

positive. Individual States have also 

conducted tests on dead bald eagles 

with an overall small percentage testing 

positive. For example, the State of New 

York annually counts the number of 

bald eagles residing in the State, which 

has averaged more than 300 individual 

bald eagles each year since 2000. Within 

the State of New York, only two 

confirmed cases of WNV have been 

present. Given the small percentage of 

bald eagle mortality due to WNV, we 

expect this threat will not significantly 

affect the bald eagle population in the 

lower 48 States or any significant 

portion of its range in the foreseeable 

future. 

During several years in the 1990s, 

bald eagles wintering along the lower 

Wisconsin River experienced an 

unusual rate of mortality. Beginning in 

2000–2001, after a gap of 5 years, 

similar bald eagle mortality has 

reoccurred each winter, with less than 

30 confirmed cases as of 2004. Many of 

the eagles exhibit signs of neurologic 

impairment. One hypothesis is that the 

syndrome is caused by a severe 

thiamine deficiency as a result of 

feeding largely on gizzard shad, but that 

hypothesis remains to be adequately 

tested (Wisconsin Department of 

Natural Resources 2005). This syndrome 

is very localized, and is not having a 

significant impact on the Statewide bald 

eagle population given that Wisconsin’s 

eagle population has been rising each 

year since the mid-1980s, with 1,065 

nesting pairs counted in 2006 (Eckstein 

2007, p. 3). Given the small percentage 

of Wisconsin bald eagles affected by this 

disease, this threat will not affect the 

lower 48 States’ bald eagle population 

in all or a significant portion of its range 

in the foreseeable future. 

In summary, like all wildlife 

populations, the bald eagle is affected 

by numerous natural and 

environmentally related diseases, as 

well as predation. While these diseases 

and predation may have measurable 

impacts on small, local populations, no 

known natural or environmentally 

related disease threats currently have, or 

are anticipated to have, widespread 

impacts on the bald eagle population in 

the lower 48 States. While these impacts 

are measurable, they are not affecting 

those small areas given the increase in 

the population levels of bald eagles in 

those areas. We do not expect an 

increase in this threat in the foreseeable 

future, and, therefore, this is not a threat 

to any significant portion of the bald 

eagle’s range. Therefore, neither 

predation nor disease is likely to 

constitute a significant threat to the bald 

eagle currently or in the foreseeable 

future throughout all or any significant 

portion of its range. 

D. The Inadequacy of Existing 

Regulatory Mechanisms. As with all of 

the five factors, we have to determine 

whether any particular factor is a threat 

to the species. The main threats to the 

bald eagle at the time of listing were 

threats to reproductive success from 

contaminants and habitat loss or 

degradation. Regulatory mechanisms, in 

and of themselves, were never identified 

as a threat for bald eagles. Indirectly, 

regulatory mechanisms were needed to 

assure that the threats identified in the 

other factors were removed or reduced. 

Because we address these regulatory 

mechanisms in the other factors, we will 

only mention them briefly in this 

section. 

The BGEPA explicitly protects 

individuals and nests (16 U.S.C. 668); it 

will also minimize threats to bald eagle 

habitat because acts that disturb bald 

eagles, their nests, or their eggs violate 

the prohibitions of the BGEPA. The 

MBTA also provides protection by 

making it unlawful to pursue, hunt, 

take, capture, or kill; attempt to take, 

capture or kill; possess, sell, barter, 

purchase, deliver; or cause to be 

shipped, exported, imported, 

transported, carried or received any 

migratory bird (which bald eagles are 

considered), part, nest, egg or product, 

manufactured or not. In addition to 

these laws that provide direct protection 

to the bald eagle, the Clean Water Act 

and the Federal Insecticide, Fungicide, 

and Rodenticide Act (FIFRA; 7 U.S.C. 

136 et seq.) provide regulations 

indirectly contributing to the reduction 

of various manmade threats. Given the 

level of threats identified in the 

discussion of the other factors, these 

protections, taken together, provide 

adequate regulatory mechanisms for the 

bald eagle in the lower 48 States in the 

foreseeable future, and, therefore, factor 

D is not a threat throughout all or any 

significant portion of the range. 

E. Other Natural or Manmade Factors 

Affecting Its Continued Existence. Bald 

eagles have been subjected to direct and 

indirect mortality from a variety of 

human-related activities such as 

poisoning (including indirect lead 

poisoning), electrocution, collisions 

(such as impacts with vehicles, power 

lines, or other structures), and death and 

reproductive failure resulting from 

exposure to pesticides. 

The first major decline in the bald 

eagle population probably began in the 

mid to late 1800s. Widespread shooting 

for feathers and trophies led to 

extirpation of eagles in some areas. 

Shooting also reduced part of the bald 

eagle’s prey base (waterfowl and 

shorebirds). Carrion treated with 

strychnine, thallium sulfate, and other 

poisons was used as bait to kill livestock 

predators and indirectly killed many 

eagles as well. These were the major 

factors that contributed to a reduction in 

bald eagle numbers through the 1940s. 

Shooting and poisoning of bald eagles 

and other migratory birds is now 

prohibited by BGEPA and MBTA, as 

discussed in Factor B. 

In the late 1940s, shortly after World 

War II, the use of dichloro-diphenyltrichloroethane (DDT) and other 

organochlorine pesticide compounds 

became widespread. Initially, DDT was 

sprayed extensively along coastal and 

other wetland areas to control 

mosquitoes (Carson 1962, p. 122). Later, 

it was widely used as a general crop 

insecticide. Dichlorophenyldichloroethylene (DDE), the principal 

metabolic breakdown product of DDT, 

devastated eagle productivity from the 

1950s through the mid-1970s. DDE 

accumulated in the fatty tissue of adult 

female bald eagles, and impaired 

calcium metabolism necessary for 

normal eggshell formation, causing 

eggshell thinning. Many eggs broke 

during incubation, while others suffered 

embryonic mortality resulting in 

massive reproductive failure. On 

December 31, 1972, the U.S. 

Environmental Protection Agency, 

under the authority of FIFRA, canceled 

and suspended registration of DDT in 

the United States. 

The threat of death and reproductive 

failure was dramatically reduced in 

1972 when DDT was banned from use 

in the United States. An additional step 

to halt the bald eagle’s decline was 

taken in 1976, when FIFRA registrations 

of dieldrin, heptachlor, chlordane, and 

other toxic persistent pesticides were 

cancelled for all but the most restricted 

uses in the United States. The residual 

effects of DDT are now highly localized 

and have a negligible impact on the bald 

eagle population in the lower 48 States. 

The organochlorine compound 

concentrations are continuing to decline 

even in the localized areas in which 

high levels have persisted through time. 

For instance, the Channel Islands area of 

southern coastal California has 

historically had severe problems related 

to DDE impacts to bald eagle 

productivity because this was a DDT 

manufacturing site (64 FR 35460). On 

March 16, 2006, biologists with the 

Montrose Settlements Restoration 

Program announced that a bald eagle 

egg successfully hatched on Santa Cruz 

Island in the Northern Channel Islands 

(NOAA 2007, p. 1). This bald eagle 


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successfully fledged and took its first 

flight on July 14, 2006 (NOAA 2007, p. 

1). This is the first successful bald eagle 

fledging on the Northern Channel 

Islands since 1949 when they nested on 

Anacapa Island (NOAA 2007, p. 1). 

Given the recent success in this area, 

other areas that had high levels of 

organocholorine concentrations will 

likely show similar success in the 

foreseeable future. 

The threat of pesticide-related 

impacts on bald eagles will continue to 

decline after delisting due to the 

requirement that pesticides be registered 

with the Environmental Protection 

Agency (EPA). Under the authority of 

FIFRA, the EPA requires environmental 

testing of new pesticides. It specifically 

requires testing the effects of pesticides 

on representative wildlife species before 

a pesticide is registered. The registration 

process provides a safeguard to avoid 

the type of environmental catastrophe 

that occurred from organochlorine 

pesticides, such as DDT, that led to the 

listing of this species as endangered. In 

addition, the Food Quality Protection 

Act (1996) has resulted in a similar EPA 

review of existing pesticides already on 

the market. This protection from effects 

of pesticides afforded under the FIFRA 

will continue into the future even after 

delisting the bald eagle under the Act. 

Polychorinated biphenyls (PCBs) have 

been demonstrated to cause a variety of 

adverse health effects including effects 

on the immune system, reproductive 

system, nervous system, and endocrine 

system. In 1976, manufacturing, 

processing, and distribution in 

commerce of PCBs were prohibited by 

Section 6(e) of the Toxic Substances 

Control Act (15 U.S.C 2601, 2605(e)). 

Some industrial and commercial 

applications where PCBs were used 

include: Electrical, heat transfer, and 

hydraulic equipment; as plasticizers in 

paints, plastics, and rubber products; 

and in pigments, dyes, and carbonless 

copy paper. More than 1.5 billion 

pounds of PCBs were manufactured in 

the United States prior to 1977 (U.S. 

EPA 2007, p. 1). PCBs do not readily 

break down and may persist in the 

environment for decades. Individual 

bald eagles may consume prey that has 

accumulated high levels of PCBs, 

leading to a risk of reproductive failure 

(Bowerman 1993). Given the 

prohibitions in the use of PCBs, we 

expect impaired reproductive success 

because of PCBs to be relatively low and 

localized to those areas in the range 

where concentrations remain relatively 

high. Monitoring of concentrations of 

PCBs throughout each of the Great Lakes 

has shown concentrations of PCBs in 

lake trout that are stable or decreasing 

(Environment Canada and the U.S. EPA 

2005, pp. 122–131). Although there are 

areas around the Great Lakes that have 

not yet recovered to the level present 

before persistent organic pollutants 

were used, the reproductive rates in the 

shoreline populations of Great Lakes 

bald eagles as a whole have increased. 

This population increase indicates that 

widespread effects of persistent organic 

pollutants have decreased (Environment 

Canada and U.S. EPA, 2005 p. 272). 

Given that PCB use is prohibited and 

monitoring data show the levels of PCBs 

decreasing, we expect the effects of 

PCBs to continue to decrease in the 

foreseeable future and not to affect the 

bald eagle population in the lower 48 

States or any significant portion of its 

range. 

Mercury occurs naturally in the 

earth’s crust and cycles in the 

environment as part of both natural and 

human-induced activities. The amount 

of mercury mobilized and released into 

the biosphere has increased since the 

beginning of the industrial age. Mercury 

has long been known to have toxic 

effects on humans and wildlife. Mercury 

is a toxic, persistent, bioaccumulative 

pollutant that affects the nervous 

system. 

Mercury is emitted into the 

atmosphere by industrial activities like 

coal-fired power generation. It can travel 

long distances in the atmosphere and 

can be deposited on the surface of the 

earth in remote areas far from the 

industry emitting the atmospheric 

mercury. Mercury that accumulates in 

soil can be transported to waterways in 

runoff and subsurface water flow. Once 

in the water, mercury begins to 

accumulate in the aquatic organisms, 

with concentrations highest at the top of 

the food chain. Methylmercury is the 

form of mercury that bioaccumulates in 

fish. Mercury contamination is the most 

frequent basis for fish advisories, 

represented in 60 percent of all water 

bodies with advisories. Forty-one States 

have advisories for mercury in one or 

more water bodies, and 11 States have 

issued Statewide mercury advisories. 

Consumption of prey with elevated 

levels of mercury can cause adverse 

effects on growth, development, 

reproduction, metabolism and behavior 

in birds (Eisler 1987, p. 36). Elevated 

levels of mercury have been reported in 

bald eagles in the Northeast, Great Lakes 

region, Northwest, Florida, and recently 

Montana. An ongoing study of the 

exposure and impacts of mercury on 

bald eagles in Maine and New 

Hampshire indicates that concentration 

levels are suggestive of reproductive or 

behavioral impacts (DeSorbo and Evers 

2006, p. 5). However, bald eagle 

population levels in these areas have 

continued to increase even with the 

increasing mercury concentration levels. 

While potentially high levels of mercury 

may be present in localized areas, there 

currently are no data suggesting that the 

bald eagle populations in these 

localized areas are adversely affected. If 

the mercury concentration did increase 

in these isolated small areas, only a few 

bald eagle pairs would be affected 

around these particular lakes. These 

lakes would likely be too small to 

meaningfully contribute to the 

resilience, redundancy, or 

representation of the bald eagle in the 

lower 48 States. Therefore, mercury 

exposure currently is having a negligible 

impact on the bald eagle population in 

the lower 48 States and any significant 

portions of its range. 

EPA has recognized the need for 

regulations for water-quality criteria and 

in 2001 announced a new water qualitycriterion for methylmercury that is 

protective of human health. On August 

9, 2006, EPA announced draft guidance 

for implementing the water quality 

criterion (71 FR 45560). Given that high 

mercury concentrations affect a variety 

of different species, including humans, 

we expect that under the current laws 

mercury levels will continue to be 

monitored and managed to a point that 

mercury will not have significant 

adverse effects on the bald eagle 

population in the lower 48 States or a 

significant portion of its range in the 

foreseeable future. 

Lead poisoning has caused death and 

suffering in birds and other wildlife for 

many years. Bald eagles died from lead 

poisoning as a result of feeding on 

waterfowl that were killed or crippled 

by hunters using lead shot. Bald eagles 

also died from feeding on waterfowl 

prey that had inadvertently ingested 

lead shot in the environment as they 

fed. Since 1991, the Service has 

recommended phasing out of lead shot 

for waterfowl hunting (U.S. FWS, 

2006b, p. 2). However, the use of lead 

shot continues in most States for 

hunting upland game birds. Another 

contributor to possible lead poisoning is 

use of lead fishing sinkers. Such use 

remains legal in every State except New 

Hampshire, and could potentially pose 

a threat to the bald eagle. However, 

according to a report in 1995, after 30 

years of study, lead poisoning was 

diagnosed in only 338 eagles, including 

both bald and golden, from 34 States. 

Even if a majority of these deaths were 

bald eagles over the 30-year period, this 

represents a relatively small number of 

bald eagles given the large increase we 

have seen in the population during that 

same timeframe (LaRoe et al. 1995. p. 


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68). Lead poisoning is a threat to a very 

few individual bald eagles each year 

and we do not expect the numbers of 

bald eagles affected by lead to increase 

given the increased public awareness of 

the threats posed by using lead shot. 

Other causes of injury and mortality 

to individual bald eagles continue to 

exist. Of the 4,300 bald and golden eagle 

deaths investigated between the early 

1960s and 1990s, accidental death and 

impacts with vehicles, power lines, or 

other such structures accounted for 23 

percent of the bald eagle deaths 

rangewide (including Alaska) (LaRoe et 

al. 1995. p. 68). Low numbers of these 

types of impacts can be found scattered 

throughout the population, and are not 

concentrated in any specific geographic 

region of the lower 48 States. Because 

these threats are found in low levels 

throughout the population, the 

population as a whole can absorb these 

impacts. Considering the increase in the 

population size of bald eagles in the 

lower 48 States during the time period 

studied, these impacts were not a 

significant threat to the population as a 

whole. Given the 30-year time period 

studied and the continued increase in 

the population size during that time 

period, this threat will likely not 

increase in the foreseeable future to the 

point where the bald eagle in the lower 

48 States or a significant portion of its 

range will meet the definition of 

threatened or endangered under the Act. 

Raptor electrocution has been a 

concern since the early 1970s and 

accounted for 12 percent of the causes 

of bald eagle mortality in the 4,300 bald 

and golden eagle deaths studied since 

the 1960s (LaRoe et al. 1995. p. 68). 

Generally, electrocutions are more 

prevalent in sites where a susceptible 

species’ prey base is present and where 

suitable perches, other than power 

structures, are lacking. Birds can be 

electrocuted during any season, but 

there can be seasonal fluctuations in 

electrocution frequency that are related 

to weather conditions or bird behavior 

(USGS 1999, p. 358). Raptor 

electrocutions generally can be reduced 

by adopting safe electrical-pole-and-line 

configurations or managing raptor 

perching. With the increase in the bald 

eagle population, electrocution 

mortality has likely increased (Koppie 

2007a). However, given the continued 

increase in the population, the effects of 

such deaths are negligible on the 

population as a whole and there are no 

particular areas within the range where 

this threat is concentrated. The Service 

and the Edison Electric Institute’s Avian 

Power Line Interaction Committee 

(APLIC) have worked together to 

develop guidelines to minimize the 

incidence of bird electrocutions on 

power lines. Their ‘‘Avian Protection 

Plan Guidelines’’ provide detailed 

guidance to utility company employees 

for minimizing and avoiding the 

incidence of bird electrocutions, 

including the bald eagle. They are used 

in conjunction with APLIC’s ‘‘Suggested 

Practices for Raptor Protection on Power 

Lines: The State of the Art in 2006’’ to 

reduce the number of avian 

electrocutions on existing and new 

utility poles. Although this is only 

guidance, it illustrates the collaborative 

working relationship to minimize bird 

electrocution. Given the small number 

of individual birds that are killed by 

electrocution and the continued 

increase in the population size, this is 

not a significant threat to the bald eagle 

in the lower 48 States or a significant 

portion of its range currently or in the 

foreseeable future. 

Development of wind energy 

production facilities is increasing in 

localized areas of the lower 48 States, 

especially in the Atlantic coast flyway 

area. National projections by the U.S. 

Department of Energy for U.S. onshore 

installed wind-energy capacity show an 

increase from 11.9 GW in 2005 to 72.2 

GW in 2020 (National Academy of 

Sciences 2007). Some wind power 

facilities have caused mortality to birds 

of prey and other avian species. There 

is no evidence, however, indicating that 

bald eagles have been taken to date. But 

post-construction studies at existing 

wind power facilities have been limited 

in scope and duration, and facilities are 

now being proposed in areas where bald 

eagles are more likely to occur. Bald 

eagles may still be susceptible to 

mortality, injury, or disturbance in the 

future if wind energy facilities are not 

carefully sited to avoid breeding, 

foraging, or migratory areas. But BGEPA 

and MBTA prohibitions on the take of 

bald eagles will still apply after 

delisting, thereby creating an incentive 

for thoughtful siting and design of 

future wind facilities. If wind power 

development is not carefully planned, 

bald eagle take may occur in the 

foreseeable future. But we currently do 

not have any data indicating that this 

threat would rise to the level of causing 

the bald eagle population to be 

threatened or endangered, especially 

given the protections afforded by 

BGEPA and the MBTA. 

The main cause of bald eagle 

endangerment in the lower 48 States, 

the use of pesticides, has been reduced 

by cancellation or limitations placed on 

use of key pesticides under FIFRA. 

Some contaminants are still prevalent in 

certain local areas of the lower 48 States 

that cause death or reduced productivity 

in a small number of eagles within the 

population. In addition, several other 

minor threats remain for individual bald 

eagles, including electrocution and 

vehicle strikes. However, due to the 

large geographic range of the bald eagle 

and its widespread recovery, these 

localized negative impacts appear to 

have a negligible effect on regional or 

national populations and, therefore, are 

not threats to the bald eagle population 

in the lower 48 States. We have 

determined that these other natural or 

manmade factors affecting the bald eagle 

are not likely to cause the bald eagle to 

become endangered or threatened in the 

foreseeable future throughout all or any 

significant portion of its range. 

Conclusion of the 5-Factor Analysis 

As required by the Act, we considered 

the five potential threat factors to assess 

whether the bald eagle is threatened or 

endangered throughout all or a 

significant portion of its range in the 

lower 48 States. When considering the 

listing status of the species, the first step 

in the analysis is to determine whether 

the species is in danger of extinction 

throughout all of its range. If this is the 

case, then the species is listed in its 

entirety. For instance, if the threats on 

a species are acting only on a portion of 

its range, but they are at such a large 

scale that they place the entire species 

in danger of extinction, we would list 

the entire species. 

The wide distribution of bald eagles 

throughout the lower 48 States, 

combined with the eagles’ ability to 

exploit a wide range of geographic 

aquatic habitat settings, provides an 

important buffer against any potential 

threats to any of the significant portions 

of the range and to the species as a 

whole. Bald eagles have demonstrated 

increasing levels of tolerance of human 

activities that will allow bald eagles to 

use habitats previously thought to be 

unavailable due to the proximity of 

human activities. Several regulatory 

mechanisms will remain after delisting 

that will continue to protect bald eagles 

and their nests. Approximately 40 

percent of the bald eagle nests occur on 

areas where long-term adverse habitat 

modification is unlikely to occur, 

including National Wildlife Refuges, 

National Parks, and National Forests. 

The BGEPA, MBTA, and CWA will 

continue to limit threats to habitat. 

Large-scale mortality from 

unregulated shooting, like that which 

occurred early in the last century, has 

been eliminated and is prohibited by 

both the BGEPA and the MBTA. Like all 

wildlife populations, the bald eagle is 

affected by numerous natural and 

environmentally related diseases. 


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However, these localized effects on 

individuals are not significantly 

affecting the bald eagle population in 

the lower 48 States or a significant 

portion of its range, nor are they likely 

to do so within the foreseeable future. 

The main cause of bald eagle 

endangerment in the lower 48 States, 

the use of certain organochlorine 

pesticides, has been banned or reduced. 

While some contaminants are still 

prevalent in certain local areas of the 

lower 48 States, these localized impacts 

are not having a significant effect on the 

population levels of bald eagles in the 

lower 48 States. Regulatory mechanisms 

such as FIFRA will continue to regulate 

levels of contaminants such that the 

bald eagle in the lower 48 States will 

likely not become endangered in the 

foreseeable future. Moreover, the 

existing regulatory mechanisms 

summarized here have been proven 

adequate to control all of the potentially 

significant human-caused threats 

identified for the species. 

Bald eagle recovery goals have been 

met or exceeded for the species on a 

rangewide basis. There is no recovery 

region in the lower 48 States where we 

have not seen substantial increases in 

eagle numbers. We believe the 

surpassing of recovery targets over 

broad areas and on a regional basis, and 

the continued increase in eagle numbers 

since the 1995 reclassification from 

endangered to threatened, demonstrates 

that threats have been reduced or 

eliminated such that the bald eagle 

population in the lower 48 States no 

longer meets the definition of 

threatened or endangered. 

Having determined that the bald eagle 

in the lower 48 States does not meet the 

definition of threatened or endangered, 

we must next consider whether there 

are any significant portions of its range 

that are in danger of extinction or are 

likely to become endangered in the 

foreseeable future. On March 16, 2007, 

a formal opinion was issued by the 

Solicitor of the Department of the 

Interior, ‘‘The Meaning of ‘In Danger of 

Extinction Throughout All or a 

Significant Portion of Its Range’ ’’ (U.S. 

DOI 2007). We have summarized our 

interpretation of that opinion and the 

underlying statutory language below. A 

portion of a species’ range is significant 

if it is part of the current range of the 

species and is important to the 

conservation of the species because it 

contributes meaningfully to the 

representation, resiliency, or 

redundancy of the species. The 

contribution must be at a level such that 

its loss would result in a decrease in the 

ability to conserve the species. 

The first step in determining whether 

a species is threatened or endangered in 

a significant portion of its range is to 

identify any portions of the range of the 

species that warrant further 

consideration. The range of a species 

can theoretically be divided into 

portions in an infinite number of ways. 

However, there is no purpose to 

analyzing portions of the range that are 

not reasonably likely to be significant 

and threatened or endangered. To 

identify only those portions that warrant 

further consideration, we determine 

whether there is substantial information 

indicating that (i) the portions may be 

significant and (ii) the species may be in 

danger of extinction there or likely to 

become so within the foreseeable future. 

In practice, a key part of this analysis is 

whether the threats are geographically 

concentrated in some way. If the threats 

to the species are essentially uniform 

throughout its range, no portion is likely 

to warrant further consideration. 

Moreover, if any concentration of 

threats applies only to portions of the 

range that are unimportant to the 

conservation of the species, such 

portions will not warrant further 

consideration. 

If we identify any portions that 

warrant further consideration, we then 

determine whether in fact the species is 

threatened or endangered in any 

significant portion of its range. 

Depending on the biology of the species, 

its range, and the threats it faces, it may 

be more efficient in some cases for the 

Service to address the significance 

question first, and in others the status 

question first. Thus, if the Service 

determines that a portion of the range is 

not significant, the Service need not 

determine whether the species is 

threatened or endangered there; 

conversely, if the Service determines 

that the species is not threatened or 

endangered in a portion of its range, the 

Service need not determine if that 

portion is significant. 

The terms ‘‘resiliency,’’

‘‘redundancy,’’ and ‘‘representation’’ are 

intended to be indicators of the 

conservation value of portions of the 

range. Resiliency of a species allows the 

species to recover from periodic 

disturbance. A species will likely be 

more resilient if large populations exist 

in high-quality habitat that is 

distributed throughout the range of the 

species in such a way as to capture the 

environmental variability within the 

range of the species. It is likely that the 

larger size of a population will help 

contribute to the viability of the species. 

Thus, a portion of the range of a species 

may make a meaningful contribution to 

the resiliency of the species if the area 

is relatively large and contains 

particularly high-quality habitat or if its 

location or characteristics make it less 

susceptible to certain threats than other 

portions of the range. When evaluating 

whether or how a portion of the range 

contributes to resiliency of the species, 

it may help to evaluate the historical 

value of the portion and how frequently 

the portion is used by the species. In 

addition, the portion may contribute to 

resiliency for other reasons—for 

instance, it may contain an important 

concentration of certain types of habitat 

that are necessary for the species to 

carry out its life-history functions, such 

as breeding, feeding, migration, 

dispersal, or wintering. 

Redundancy of populations may be 

needed to provide a margin of safety for 

the species to withstand catastrophic 

events. This does not mean that any 

portion that provides redundancy is a 

significant portion of the range of a 

species. The idea is to conserve enough 

areas of the range such that random 

perturbations in the system act on only 

a few populations. Therefore, each area 

must be examined based on whether 

that area provides an increment of 

redundancy that is important to the 

conservation of the species. 

Adequate representation ensures that 

the species’ adaptive capabilities are 

conserved. Specifically, the portion 

should be evaluated to see how it 

contributes to the genetic diversity of 

the species. The loss of genetically 

based diversity may substantially 

reduce the ability of the species to 

respond and adapt to future 

environmental changes. A peripheral 

population may contribute meaningfully 

to representation if there is evidence 

that it provides genetic diversity due to 

its location on the margin of the species’

habitat requirements. 

To determine whether the bald eagle 

is threatened in any significant portion 

of its range, we first considered how the 

concepts of resiliency, representation, 

and redundancy apply to the 

conservation of this particular species. 

The recovery of the bald eagle in the 

lower 48 States provides important 

perspective. The species has 

demonstrated that it had sufficient 

resiliency and redundancy to recover 

from a severe population crash. That 

recovery was due in large part to the 

widespread distribution of the species: 

once the threats (most significantly the 

use of DDT) were removed, the 

population began to expand back into 

the main breeding and wintering areas 

that we currently see today housing a 

majority of the population. These 

breeding and wintering areas are 

distributed in such a fashion as to 


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capture a majority of the latitudinal and 

environmental conditions that vary 

throughout the range. Approximately 75 

percent of the breeding population 

occurs in these key core areas that are 

distributed throughout the northern, 

southern, eastern, and northwestern 

portions of the lower 48 States. In 

general, the large breeding areas have 

large expanses of aquatic habitat such as 

Florida, the Chesapeake Bay region, 

Maine, the Great Lakes, and the Pacific 

Northwest (Buehler 2000, p. 1). Winter 

habitat can also be characterized by 

having roost sites that are open and 

close to water with good food 

availability (Buehler 2000, pp. 3, 7). 

Bald eagles tend to congregate in large 

population centers during the winter 

such that large populations are present 

in a few areas that have good habitat 

characteristics. In the lower 48 States, 

these wintering concentration areas are 

found mainly along rivers in the Pacific 

Northwest, including the Puget Sound 

and the lower Klamath Basin; and along 

major inland river systems in the 

Midwest and the Chesapeake Bay. 

The main breeding and wintering 

areas again provide adequate resiliency 

and redundancy for the bald eagles in 

the lower 48 States. Although there is 

little data on the genetic diversity 

within the species, these same areas 

appear to provide for adequate 

representation. A variation in body size 

in bald eagle individuals is present that 

is likely due to environmental 

temperature changes in latitude, as 

discussed in the significance discussion 

in the DPS section of this rule. Bald 

eagles in the southern States tend to be 

smaller and lighter than eagles found in 

the northern States (Stalmaster 1987, 

pp. 16–17). However, we do not have 

any data currently suggesting this 

morphological difference is heritable. 

Even if this trait was heritable, the 

current distribution of the main 

breeding and wintering areas discussed 

above does capture this environmental 

variation. 

Applying the process described above 

for determining whether a species is 

threatened in a significant portion of its 

range, we next addressed whether any 

portions of the range of the bald eagle 

in the lower 48 States warranted further 

consideration. We noted that, as 

discussed in Factor E, there are several 

small geographic areas where localized 

contaminant threats still exist. However, 

we concluded that these did not warrant 

further consideration because (1) they 

are very small (in the context of the 

range of this species) and affect only a 

few bald eagles, and thus there was no 

substantial information that they were a 

significant portion of the range, or (2) 

the contaminant levels are decreasing 

and eagle populations increasing, and 

thus there was no substantial 

information that the bald eagles in these 

areas were likely to become in danger of 

extinction in the foreseeable future. 

In contrast, the threat of habitat loss 

discussed in Factor A found in Florida 

and the Chesapeake Bay region is 

distributed over relatively larger 

geographic areas of obvious importance 

to bald eagle conservation. Therefore, 

we determined that these areas 

warranted further consideration as 

portions of the range that may be both 

significant and threatened. However, as 

discussed separately in the Factor A 

analysis, we conclude that the threat of 

habitat loss in Florida and the 

Chesapeake Bay region does not rise to 

the level that the bald eagle is likely to 

become in danger of extinction in these 

portions of the range in the foreseeable 

future. Therefore, we need not 

determine whether Florida or the 

Chesapeake Bay region constitute a 

significant portion of the bald eagle’s 

range. 

Finally, we decided to assume that 

the Sonoran Desert population, as well 

as the population in the broader area of 

the Southwest (Arizona, New Mexico, 

Utah, and Nevada), of which the 

Sonoran Desert population is the major 

component, warranted additional 

consideration out of an abundance of 

caution and based on the controversy 

concerning the status of the bald eagles 

in this region. The following provides 

our analysis of whether these portions 

of the range are significant. 

Turning first to the question of 

whether the Sonoran Desert portion of 

the range makes a meaningful 

contribution to the representation of the 

bald eagle, we note that the Sonoran 

Desert population is a peripheral 

population, and, as such, requires 

special consideration, as differing 

environmental conditions at the 

periphery of a species’ range may give 

rise to genetic adaptations valuable to 

the long-term conservation of the 

species. However, as discussed 

immediately above and in detail in the 

DPS analysis, there is no evidence that 

the morphological and behavioral 

characteristics of bald eagles in the 

Sonoran Desert are genetically based 

(and, therefore, heritable). Even if they 

were genetically based, the best 

available data suggest that those 

characteristics are sufficiently 

represented in other portions of the 

species’ range. Therefore, we conclude 

that the Sonoran Desert population does 

not make a meaningful contribution to 

the representation of the bald eagle. We 

reach the same conclusion for the 

broader population in the Southwest 

because there is no evidence that the 

breeding pairs in the broader area have 

adaptations that are not sufficiently 

represented in other portions of the 

range. 

Next, we conclude that the Sonoran 

Desert and broader southwest portions 

of the range do not make a meaningful 

contribution to the resiliency of the bald 

eagle. As discussed previously, habitat 

suitability determines the density and 

distribution of bald eagle populations. 

The Southwest, for example, does not 

contain particularly high-quality 

habitat: it does not support large 

expanses of the bald eagle’s preferred 

breeding habitat type of forested areas 

adjacent to large bodies of water 

(Buehler 2000, p. 6). Therefore, this 

geographic area, both historically and 

currently, supports a small number of 

breeding pairs that are more widespread 

and fewer in number compared to other 

regions with abundant prey and nest 

substrate (Jacobsen et al. 2006, p. 27). 

Several accounts suggest that the 

breeding areas may have been more 

widespread prior to European 

development; however, these accounts 

do not suggest a large breeding 

population ever occurred in this region 

of the United States. 

The isolation of the Sonoran Desert 

population and the fact that the 

ecological setting in the Southwest 

differs somewhat from other portions of 

the bald eagle range might provide some 

insulation from threats that in the future 

may affect other portions of the range. 

Therefore, these portions of the range 

might make some contribution to the 

resiliency of the species. However, we 

find that any such contribution is 

minor, and, therefore, not meaningful 

because of the small number of pairs 

that are present in this area. Nor does 

the southwestern portion of the range 

include any important concentration of 

habitat necessary to carry out the lifehistory functions of the bald eagle. 

Finally, we conclude that the Sonoran 

Desert and broader southwestern 

portions of the range do not make a 

meaningful contribution to the 

redundancy of the bald eagle. As 

discussed above, even the broader 

southwestern portion of the range 

contains only a small number of bald 

eagles and a tiny portion of the suitable 

habitat in the lower 48 States. Given the 

overall numbers of eagles and their 

broad distribution in the lower 48 

States, the southwestern portion of the 

range provides almost no redundancy to 

the species. 

In light of the above, we conclude that 

neither the Sonoran Desert nor the 

Southwest constitute a significant 


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portion of the range of the bald eagle in 

the lower 48 States, and its loss would 

not result in a decrease in the ability to 

conserve the bald eagle. Therefore, we 

do not need to determine whether either 

of these portions of the range are in fact 

threatened. We note that although we 

have determined that these portions of 

the range are not significant for the 

purposes of section 4 of the Act, we 

recognize that the bald eagles in the 

Southwest have great importance to 

people in this region, particularly 

Native Americans, and will continue to 

be protected under the BGEPA. We will 

continue to work with the States, tribes, 

and conservation organizations in this 

region continue to conserve the bald 

eagle in the southwestern United States. 

In summary, the bald eagle has made 

a dramatic resurgence from the brink of 

extinction. The banning of DDT, 

coupled with the cooperative 

conservation efforts of the Service, 

States, other Federal agencies, nongovernment organizations, and 

individuals, have all contributed to the 

recovery of our National symbol. We 

have determined that none of the 

existing or potential threats, either alone 

or in combination with others, are likely 

to cause the bald eagle to become in 

danger of extinction within the 

foreseeable future throughout all or any 

significant portion of its range. The bald 

eagle no longer requires the protection 

of the Act, and, therefore, we are 

removing it from the Federal List of 

Endangered and Threatened Wildlife. 

Effects of This Rule 

This final rule revises 50 CFR 17.11(h) 

to remove the bald eagle in the lower 48 

States from the Federal List of 

Endangered and Threatened Wildlife, 

and also removes the special rule for the 

bald eagle at 50 CFR 17.41(a). The 

prohibitions and conservation measures 

provided by the Act, particularly 

sections 7, 9, and 10 no longer apply to 

this species. Federal agencies will no 

longer be required to consult with us 

under section 7 of the Act in the event 

that activities they authorize, fund, or 

carry out may affect the bald eagle. 

Critical habitat was not designated for 

the bald eagle, so the delisting will not 

affect critical habitat provisions of the 

Act. 

The provisions of the Bald and 

Golden Eagle Protection Act and the 

Migratory Bird Treaty Act (including 

prohibitions on the taking of bald 

eagles) will remain in place. This rule 

will not affect the bald eagle’s status as 

a threatened or endangered species 

under State laws or suspend any other 

legal protections provided by State law. 

This rule will not affect the bald eagle’s 

Appendix II status under CITES. 

For existing section 7 and 10 

authorizations under the Act that cover 

bald eagles, the Service will honor 

existing Act exemptions and 

authorizations of incidental take until 

such time as the Service completes a 

final rulemaking for permits under the 

Bald and Golden Eagle Protection Act. 

We do not intend to refer for 

prosecution the incidental take of any 

bald eagle under the Migratory Bird 

Treaty Act of 1918, as amended (16 

U.S.C. 703–712), or the Bald and Golden 

Eagle Protection Act of 1940, as 

amended (16 U.S.C. 668–668d), if such 

take is in full compliance with the terms 

and conditions of an incidental take 

statement issued to the action agency or 

applicant under the authority of section 

7(b)(4) of the Act or the terms and 

conditions of a permit issued under the 

authority of section 10(a)(1)(B) of the 

Act. The Service has proposed a 

rulemaking to establish criteria for 

issuance of a permit to authorize 

activities that would ‘‘take’’ bald eagles 

under the Bald and Golden Eagle 

Protection Act (72 FR 31141, June 5, 

2007). The comment period for the 

proposed rulemaking will close on 

September 4, 2007. Applying the 

preservation standard of the BGEPA, we 

do not anticipate that the proposed 

permitting program would reduce the 

bald eagle population below its current 

level. 

Post-Delisting Monitoring 

Section 4(g)(1) of the Act requires us, 

in cooperation with the States, to 

implement a monitoring program for not 

less than 5 years for all species that have 

been recovered and delisted. The 

purpose of this requirement is to 

develop a program that detects the 

failure of any delisted species to sustain 

itself without the protective measures 

provided by the Act. If, at any time 

during the monitoring period, data 

indicate that protective status under the 

Act should be reinstated, we can initiate 

listing procedures, including, if 

appropriate, emergency listing. We have 

proposed a draft post-delisting 

monitoring plan in a separate part of 

today’s Federal Register and expect to 

finalize that post-delisting monitoring 

plan within a year. 

Paperwork Reduction Act 

This rule does not contain any new 

collections of information other than 

those already approved under the 

Paperwork Reduction Act (44 U.S.C. 

3501 et seq.). An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

We have determined that 

Environmental Assessments and 

Environmental Impact Statements, as 

defined under the authority of the 

National Environmental Policy Act of 

1969, need not be prepared in 

connection with regulations adopted 

pursuant to section 4(a) of the 

Endangered Species Act. We published 

a notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). 

References Cited 

A complete list of all references cited 

herein is available upon request from 

the Headquarters Office (see FOR

FURTHER INFORMATION CONTACT section). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, and 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

§ 17.11 [Amended]. 

■ 2. Section 17.11(h) is amended by 

removing the entry for ‘‘Eagle, bald’’

under ‘‘BIRDS’’ from the List of 

Endangered and Threatened Wildlife. 

§ 17.41 [Amended]. 

■ 3. Section 17.41 is amended by 

removing and reserving paragraph (a). 

Dated: June 28, 2007. 

Dirk Kempthorne, 

Secretary of the Interior. 

H. Dale Hall, 

Director, Fish and Wildlife Service. 

[FR Doc. 07–4302 Filed 7–6–07; 8:45 am] 

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