[Federal Register Volume 72, Number 130 (Monday, July 9, 2007)]
[Rules and Regulations]
[Pages 37346-37372]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4302]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle 
in the Lower 48 States From the List of Endangered and Threatened 
Wildlife; Final Rule; Endangered and Threatened Wildlife and Plants; 
Draft Post-Delisting and Monitoring Plan for the Bald Eagle (Haliaeetus 
leucocephalus) and Proposed Information Collection; Notice

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

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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.

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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.
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    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 post-delisting 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 post-delisting 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 
post-delisting 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 post-delisting 
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 State-
specific 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

[[Page 37354]]

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 post-delisting 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 re-listing 
under the Act is warranted, including the Act's provision for emergency 
listing, as appropriate.
    Issue: The Service used an out-of-date, 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 post-delisting 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

[[Page 37355]]

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 free-flowing 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

[[Page 37356]]

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

[[Page 37357]]

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.''

[[Page 37358]]

    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 wide-ranging 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

[[Page 37359]]

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 nest-site 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,

[[Page 37360]]

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 non-governmental 
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

[[Page 37361]]

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 
human-caused 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 multiple-use 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.

[[Page 37362]]

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

[[Page 37363]]

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

[[Page 37364]]

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 anti-degradation 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

[[Page 37365]]

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

[[Page 37366]]

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-
diphenyl-trichloroethane (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. 
Dichlorophenyl-dichloroethylene (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 quality-criterion 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.

[[Page 37370]]

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

[[Page 37371]]

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 life-history 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

[[Page 37372]]

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, 
non-government 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

0
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]

0
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.


Sec.  17.11  [Amended].

0
2. Section 17.11(h) is amended by removing the entry for ``Eagle, 
bald'' under ``BIRDS'' from the List of Endangered and Threatened 
Wildlife.


Sec.  17.41  [Amended].

0
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]
BILLING CODE 4310-55-P