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Compliance with Federal and State Fish & Wildlife Regulations

Photo of Greater sage grouse in California Clear Lake National Wildlife Refuge
Greater Sage Grouse (Centrocercus urophasianus)

Some of the most influential regulations affecting the work of WSDOT biologists include the Migratory Bird Treaty Act, Magnuson Stevens Act, Endangered Species Act, Bald Eagle Protection Act of 1940 (amended in 1962 to include golden eagles), and sections of the Washington Administrative Code and the Revised Code of Washington pertaining to fish, wildlife, and habitat.

  
Bald and Golden Eagle Act Compliance Information

The bald eagle was removed from the list of threatened and endangered species on August 8, 2007. The bald eagle is still protected under the Bald and Golden Eagle Protection Act (Eagle Act) and the Migratory Bird Treaty Act. The Eagle Act makes it illegal to take (kill, wound, pursue, shoot, shoot at, poison, capture, trap, collect, molest or disturb) bald or golden eagles. Disturb is defined in the Eagle Act as "to agitate or bother a bald or golden eagle to a degree that caused, or is likely to cause, based on the best scientific information available, 1) injury to an eagle, 2) a decrease in its productivity, by substantially interfering with normal breeding, feeding, or sheltering behavior, or 3) nest abandonment, by substantially interfering with normal breeding, feeding, or sheltering behavior." The Eagle Act prohibits unregulated take.

To avoid potential disturbance to bald eagles, the National Bald Eagle Management Guidelines provide recommendations that will likely avoid take for a list of activities. The guidelines were developed for bald eagles and; therefore, the recommendations for avoiding disturbance to golden eagles may not be conservative enough. The guidelines will be re-evaluated and updated with additional data.  The U. S. Fish & Wildlife Service has developed a Step-by-Step Guidance to Avoid Disturbing Bald Eagles specific to bald eagles in the Pacific Northwest (Idaho, Oregon, and Washington).   

If disturbance will occur in potential violation of the act, a permit to authorize take of eagles is required. The permitting process is currently under development. For more details on the proposed permit please see the U. S. Fish & Wildlife Service Division of Migratory Bird Management Eagle Permits web page.

The Bald and Golden Eagle Protection Act applies to everyone, so for WSDOT projects, a biologist assesses potential project impacts to bald eagles to ensure we are in compliance with the Eagle Act. Compliance with the Eagle Act is also part of the NEPA/SEPA documentation. The National Bald Eagle Management Guidelines are a tool to determine if we will be or can comply with the Eagle Act (e.g. by having a timing restriction, etc.) and, if we cannot, a permit is required for disturbance to bald eagles. Disturbance includes activities that may occur during construction and those that may result after the initial activities have occurred (foreseeable, ongoing future uses). Therefore, impacts may not necessarily be limited to the footprint of the initial activity. In general, routine activities such as maintenance of existing facilities would not need to be permitted unless the activity resulted in a significantly different use intensity and would increase the likelihood eagles will be disturbed. Technical assistance for bald eagle issues and permits is provided by the USFWS field offices (Spokane, Lacey, and Wenatchee).  More information on bald eagle management and protection in Washington State, as well as Washington Department of Fish and Wildlife (WDFW) bald eagle management contacts by region/county, is available at the WDFW bald eagle website. Note that WDFW has recently changed management guidelines, and eagle management plans are no longer needed as of May 2011.

If you are a consultant working for WSDOT and are asked to address bald eagles for compliance with the Eagle Act, WSDOT will provide a form to document compliance. Note: if you are writing a biological assessment (BA), bald eagles will no longer be part of the ESA consultation and should not be addressed in the BA. A list of frequently asked questions for compliance with the Bald and Golden Eagle Protection Act is also available.

Consultants working with local agencies should inform the local agency that bald eagles are still federally protected under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act and that the local agency is responsible for compliance even if federal money, a federal permit, or federal authorization is not involved. A Highways and Local Programs version of the bald eagle form to document compliance is also available.

  
Endangered Species Act of 1973

The purpose of the Endangered Species Act is to provide a means whereby the ecosystems upon which threatened and endangered species depend may be conserved, and to provide a program for the conservation of such species. Under Section 7 of the Endangered Species Act, federal agencies are directed to use their authority to support ESA programs for the conservation of listed species and the habitats upon which these species depend.

The Fish and Wildlife Service, in the Department of the Interior, and the National Oceanic and Atmospheric Administration (NOAA) Fisheries, in the Department of Commerce, share responsibility for administration of the Endangered Species Act. Under section (7) of the ESA, WSDOT regularly consults with these two agencies to assess the potential impacts of its projects upon listed species and their habitats and also to secure incidental take permits for those projects where impacts can not be avoided.

For more information the following resources are available:

  
Magnuson Stevens Act

The Magnuson-Stevens Act, as amended by the Sustainable Fisheries Act of 1996 requires federal agencies to consult with NOAA Fisheries on activities that may adversely affect essential fish habitat. In addition, the law requires fishery management councils to include descriptions of essential fish habitat and potential threats to essential fish habitat in all federal fishery management plans.

Essential fish habitat is defined in the Magnuson-Stevens Act as those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity . The law provides the following additional definitions for clarification:

  • “Waters” include aquatic areas and their associated physical, chemical, and biological properties that are used by fish, and may include areas historically used by fish where appropriate.
  • “Substrate” includes sediment, hard bottom, structures underlying the waters, and associated biological communities.
  • “Necessary” means the habitat required to support a sustainable fishery and the managed species contribution to a healthy ecosystem.
  • “Spawning, breeding, feeding, or growth to maturity” covers the full life cycle of a species.

Three federal fishery management plans and their associated essential fish habitat are applicable to projects and activities within Washington state:

  • Pacific coast ground fish fishery - 83 species
  • Coastal pelagic species fishery - market squid and four fin fishes (Pacific sardine, Pacific [chub] mackerel, northern anchovy, and jack mackerel)
  • Pacific coast salmon fishery - chinook, coho, and Puget Sound pink salmon.

For more information the following resources are available:

  
Migratory Bird Treaty Act

The Migratory Bird Treaty Act (MBTA) (16USC 703), originally passed in 1918, makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid Federal Permit. The term “take” is not defined in the MBTA, but the U.S. Fish and Wildlife Service has defined it by regulation to mean to “pursue, hunt, shoot, wound, kill, trap, capture, or collect” or to attempt those activities. Under the provisions of the MBTA, the unauthorized take of migratory birds is a criminal offense, even if it is unintentional.

  
State Regulations

Chapter 232-12 of the Washington Administrative Code contains the bulk of state regulations pertaining to fish and wildlife in Washington State. The State has its own criteria for listing a species as endangered, threatened, sensitive, and candidate. State protected species are generally referred to as species of concern. Some of these species may also be listed under the federal Endangered Species Act. The Fish and Wildlife Enforcement Code protects species against unlawful activities.

The State has developed rules to provide for additional protection of some species and their habitat. The Bald Eagle Protection Rules outline requirements for protecting the species. The State has also defined habitat buffers for bald eagles. For Northern spotted owl, the state has defined suitable habitat, dispersal habitat, and spotted owl special emphasis areas. For marbled murrelets, the state has defined critical habitat, and characterized the critical nesting season and nesting platform criteria