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Bald and Golden Eagle Protection Act & Migratory Bird Treaty Act

Is Bird the Word for Your Project? Learn how the Bald Eagle & Migratory Treaty Acts Affect Project Development

What is the Bald and Golden Eagle Protection Act?

The Bald and Golden Eagle Protect Act (BGEPA) regulates the taking, possession, and handling of bald eagle (Haliaeetus leucocephalus) and golden eagle (Aquila chrysaetos) parts, nests, and eggs. While the "possession" and "handling" parts of the Act apply mostly to the commercial use of eagles, the "taking" part of the Act applies to incidental take of eagles that occurs as a result of an otherwise lawful activity - like wind farm collisions or nest abandonment due to construction noise. 

Under the Act, take means to "pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, destroy, molest, or disturb." Disturb means 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."

For Transect customers, it is important to know that construction and operational activities that disturb eagles are illegal under the BGEPA. U.S. Fish and Wildlife Service administers the Act.

Learn more about the BGEPA here >>

What is the Migratory Bird Treaty Act?

The Migratory Bird Treaty Act (MBTA) makes it illegal to "pursue, hunt, take, capture, kill, attempt to take, capture or kill, possess, or [use for commercial purposes]" any migratory bird in the U.S. with authorization from the U.S. Fish and Wildlife Service.

There is a historical and ongoing debate at the federal level as to whether or not incidental take (which are those impacts that occur as a result of an otherwise lawful activity) is prohibited under the MBTA.  Do you like rollercoasters? Have we got one for you:

  • In December 2017, the Department of the Interior (DOI) under President Trump's administration released a memorandum which reinterprets longstanding precent to say that incidental take is not prohibited by the MBTA. Rather, the MBTA prohibits only actions that purposefully pursue, hunt, capture, kill, or attempt to kill migratory birds, their nests, or their eggs.

  • Then, on August 11, 2020, the 2017 DOI ruling was vacated by a U.S. district judge, who stated that the ruling went against decades of precedent, was not administratively sound, and is backed by questionable expertise. As such, incidental take of migratory birds and their nests is prohibited.

  • Then, on November 27, 2020, USFWS published an Environmental Impact Statement (EIS) which proposed to develop a regulation that excludes incidental take from the scope of the MBTA, thus making incidental take not prohibited.  The final rule, published January 7, 2021, confirmed the interpretation of the administration that the MBTA only prohibits purposeful take.

  • Then, with the new administration in the White House, USFWS delayed the effective date of the January final rule was delayed to March 8th. Then, on March 8th, the Department of Interior officially withdrew the 2017 opinion.
  • Despite the current administrations clear intent to reinstate the long-standing interpretation of the MBTA, the courts have made that possibility a bit murky. While several district courts have held that the MBTA prohibits incidental take, several others have found that it only prohibits purposeful take.

  • At this time, when determining how to minimize risk under the MBTA, industries should consider their geographic jurisdiction, best management practices, and the leverage they have in the event of an enforcement action. 

Learn more about the MBTA here >>

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A Brief History of the Bald and Golden Eagle Protection Act

The bald eagle - established in 1782 as our national symbol of freedom and patriotism - was almost driven to extinction in the 1940s because of the widespread use of DDT (dichloro-diphenyl-trichloroethane) to control malaria, typhus, and other diseases carried by insects. DDT, prolific in the fish-based eagle diet, compromised the shell structure of eggs and caused infertility. DDT, combined with hunting and habitat fragmentation, had reduced the bald eagle population from around 100,000 nesting eagles in 1782 down to around 400 nesting pairs in the 1960s. Noticing the decline, Congress passed the Bald Eagle Protection Act in 1940, which prohibited killing, selling, or possessing bald eagles. 

However, eagle populations continued to decline, so in 1962 Congress amended the Act to include the golden eagle (which largely escaped the effects of DDT but was subject to hunting) and extended the protection to eagle parts like feathers, eggshells, and nests, and also extended protection to eagle nesting trees.  The name of the Act was also changed to the Bald and Golden Eagle Protection Act.  DDT was later banned in 1972, and the bald eagle was later placed on the federally-protected species list with the passing of the Endangered Species Act in 1973.

It worked! By 1995, the bald eagle's protection status under the Endangered Species Act was downgraded from endangered to threatened, and in 2007 the bald eagle was removed from the federal protected species list all together due to recovery. There are currently estimated to be over 9,700 nesting pairs in the U.S. However, the Bald and Golden Eagle Protection Act remains active, ensuring the future of both eagle species.

Learn more about the history of the BGEPA here >>

A Brief History of the Migratory Bird Treaty Act

In the 1800s, American bird populations were declining at an alarming rate as a result of overhunting, particularly to satisfy the fashion world. At the time, it was very popular to wear hats adorned with ornamental bird feathers. Several conservation groups, including the Audubon society, were formed as a result.

The Lacey Act was passed in 1900, which prohibited hunters from selling game across state lines. However, this did not do enough to curb declining bird populations. In 1916, the US signed a treaty with Canada, agreeing to work together to protect their shared natural resources, including bird species.  To solidify the treaty, the US passed the Migratory Bird Treaty Act in 1918, which made it a crime to "pursue, hunt, take, capture, or kill" a migratory bird or its parts, like nests, eggs, or feathers.

As of May 2020, there are 1,093 birds on the list of migratory birds protected by the Migratory Bird Treaty Act.

See the full list of protected migratory birds here >>

How to Identify Bald Eagles and Migratory Birds Near You

Whether you’re laying new infrastructure, laying out new commercial real estate, or building a new cell tower, identifying endangered and protected species is a key consideration in site selection.

Here are some ways you can identify bald eagles and migratory birds near you or near your project:

  1. Use Transect’s Species of Concern Assessment: Explore bald & golden eagle and migratory birds near your project site. Generate an in-depth list of protected birds near you or your project with just a few clicks. Transect’s database has the most up-to-date information and profiles for protected species. Learn more here.

  2. Use Cornell's ebird tool: Explore millions of bird observations made by scientists, researchers, and amateur naturalists across the US and the world. Access ebird here.
Looking for more? Explore the Endangered Species Act here >>
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TrioBirds Steve Buser Wiki Commons

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What Should I Do if I Have Eagles or Migratory Birds on My Project?

Eagle Management

In order to avoid disturbance to bald eagles near a project, follow the USFWS's Bald Eagle Management Guidelines, which establish setbacks from nests based on landscape and project type.

The USFWS does have a permit process for taking eagle parts, nests, or eggs; however, it is a time-consuming and tedious process, so we recommend that projects avoid permitting by using the best management practices described in the bald eagle management guidelines (above) and in the migratory bird best management practices (below).

Learn more about eagle management practices here >>

Migratory Bird Best Management Practices

There is no permit process available for projects that will have impacts to migratory birds or theirs nests. Historically under the MBTA, negative impacts to birds and nests could result in a misdemeanor violation with maximum penalty of six months in prison and $15,000 fine. With the current regulatory uncertainty around the legal interpretation of the MBTA, the risk of an enforcement action varies by state. The best option to avoid any potential fines or enforcement action is survey, avoidance, and monitoring. Implementation of USFWS's migratory bird best management practices will minimize the chance of project impacts on birds and their nests: 

Learn more about eagle and migratory bird protections and fines here >>

Why is it Important to Consider Bald Eagles and Migratory Birds during Site Selection and Construction?

Environmental due diligence is an enormous important factor in site selection and construction. The fines and repercussions of adversely impacting bald and golden eagles or migratory birds as a result of project development are as follows:

  • Under the Bald and Golden Eagle Protection Act the first criminal offense is a misdemeanor with maximum penalty of one year in prison and $100,000 fine for an individual ($200,000 for an organization). The second offense is a felony with maximum penalty of 2 years in prison and $250,000 fine for individual ($500,000 for an organization). This Act also includes maximum civil penalties of $5,000 for each violation.

  • Under the Migratory Bird Treaty Act, purposeful or incidental take of a protected bird is a misdemeanor violation with maximum penalty of six months in prison and $15,000 fine.

Learn more about eagle and migratory bird protections and fines here >>

Bald Eagle and Migratory Bird Treaty Species Report PDF

Anticipate Bald Eagle and Migratory Bird Treaty Act Issues

Transect Reports - Comprehensive Due Diligence

Transect’s environmental due diligence software evaluates your site and, using up-to-date data and species profiles for more than 600,000 locations, provides you with a comprehensive list of species and profiles to consider

And that’s not all. Your report will also include any active regulations, required permitting, and specific recommendations for any known bald eagles or migratory birds on your site.

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