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Environmental Law

: ESA Blawg

NOAA adopts new rule to limit incidental take of sea turtles in sea scallop fishery; FWS adopts new regulations for incidental take of eagles pursuant to Bald and Golden Eagle Protection Act

By Keith Rizzardi

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74 Fed. Reg. 46930 / Vol. 74, No. 176 / Monday, September 14, 2009
DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Parts 222 & 223
Endangered and Threatened Wildlife; Sea Turtle Conservation
ACTION: Final rule.

SUMMARY: The National Marine Fisheries Service (NMFS) currently requires the use of chain-mat modified dredge gear in the Atlantic sea scallop fishery south of 41? 9.0’ North latitude from May 1 through November 30 each year. This gear is necessary to help reduce mortality and injury to endangered and threatened sea turtles captured in this fishery and to conserve sea turtles listed under the Endangered Species Act. NMFS issues this final rule to make minor modifications to these chain-mat requirements. This final rule clarifies where on the dredge the chain mat must be hung, excludes the sweep from the requirement that the side of each opening in the chain mat be less than or equal to 14 inches (35.5 cm); and adds definitions of the sweep and the diamonds, which are terms used to describe parts of the scallop dredge gear. Any incidental take of threatened sea turtles in Atlantic sea scallop dredge gear in compliance with the gear modification requirements and all other applicable requirements will be exempted from the ESA prohibition against takes.

Sea turtles caught in scallop dredge gear often suffer injuries. The most commonly observed injury is damage to the carapace. The exact causes of these injuries are unknown, but most likely appear to be from being struck by the dredge (during a tow or upon emptying of the dredge bag on deck), crushed by debris (e.g., large rocks) that collects in the dredge bag, or as a result of a fall during hauling of the dredge. The chain mat is a grid of horizontal and vertical chains hung over the opening of the dredge bag to prevent sea turtles from entering the bag and to prevent injury and mortality that results from such capture (i.e., due to debris in the bag, a fall while emptying the bag, or dropping of the gear on the catch). A full description of the chain mat and the benefits to sea turtles can be found in the proposed and final rules implementing the regulations (72 FR 63537, November 9, 2007; 73 FR 18984, April 8, 2008) Photo from NOAA Protected Species.

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74 Fed. Reg. 46836 / Vol. 74, No. 175 / Friday, September 11, 2009
DEPARTMENT OF THE INTERIOR / Fish and Wildlife Service / 50 CFR Parts 13 and 22
Eagle Permits; Take Necessary To Protect Interests in Particular Localities
ACTION: Final rule.

SUMMARY: In conjunction with release of a final environmental assessment of this action, the U.S. Fish and Wildlife Service (‘‘we’’ or ‘‘the Service’’) is finalizing permit regulations to authorize limited take of bald eagles (Haliaeetus leucocephalus) and golden eagles (Aquila chrysaetos) under the Bald and Golden Eagle Protection Act (Eagle Act), where the take to be authorized is associated with otherwise lawful activities. These regulations also establish permit provisions for intentional take of eagle nests under particular, limited circumstances.

Bald Eagle nesting, photo from U.S. Army Corps of Engineers.

FOR AN EXCERPT FROM THE BALD EAGLE RULE ANNOUNCEMENT...
EXCERPT: The Bald and Golden Eagle Protection Act (16 U.S.C. 668-668d) (Eagle Act) prohibits the take of bald eagles and golden eagles unless pursuant to regulations (and in the case of bald eagles, take can only be authorized under a permit). While the bald eagle was listed under the ESA, authorizations for incidental take of bald eagles were granted through the ESA’s section 10 incidental take permits and ESA’s section 7 incidental take statements, both of which were issued with assurances that the Service would exercise enforcement discretion in relation to violations of the Eagle Act and Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712). Upon delisting, all as those that prescribe the take of bald eagles, no longer apply. However, the potential for human activities to violate Federal law by taking eagles remains under the prohibitions of the Eagle Act and the MBTA. The Eagle Act defines the ‘‘take’’ of an eagle to include a broad range of actions: ‘‘pursue, shoot, shoot at, poison, wound, kill, capture, trap, collect, or molest or disturb.’’ ‘‘Disturb’’ is defined in regulations at 50 CFR 22.3 as: ‘‘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.’’

Many actions that are considered likely to incidentally take (harm or harass) eagles under the ESA will also disturb or otherwise take eagles under the Eagle Act. Until now, there was no regulatory mechanism in place under the Eagle Act to permit take of bald or golden eagles comparable to incidental take permits under the ESA. This rule adds a new section at 50 CFR 22.26 to authorize the issuance of permits to take bald eagles and golden eagles on a limited basis. The regulations are applicable to golden eagles as well as bald eagles. We will authorize take of bald or golden eagles only if we determine that the take (1) is compatible with the preservation of the bald eagle and the golden eagle and (2) cannot practicably be avoided. For purposes of these regulations, ‘‘compatible with the preservation of the bald eagle or the golden eagle’’ means ‘‘consistent with the goal of stable or increasing breeding populations.’’ Although the biologically based take thresholds for permitting under these regulations will be based on regional populations (as explained below and in more detail in the FEA), we will also consider other factors, such as cultural significance, that may warrant protection of smaller and/or isolated populations within a region.

We are adding a second new section at 50 CFR 22.27 to authorize the removal of bald eagle and golden eagle nests where (1) necessary to alleviate a safety hazard to people or eagles, (2) necessary to ensure public health and safety, (3) the nest prevents the use of a human-engineered structure, or (4) the activity, or mitigation for the activity, will provide a net benefit to eagles. We are also promulgating new definitions under the Eagle Act to clarify terms used in the permit regulations. Permit issuance under ? 22.26 and ? 22.27 will be governed by the permit provisions presently in 50 CFR parts 13 and 22, and new provisions we are finalizing as ? 22.26 and ? 22.27.

In our June 5, 2007, proposed rule, we also proposed certain provisions to extend Eagle Act authorizations to persons previously granted authorization to take eagles under the ESA. We split the rulemaking into two separate rules and finalized the ESA related provisions separately on May 20, 2008 (73 FR 29075).

Most rules take effect 30 days after Federal Register publication; however, more time is needed to work out important details about how this program will be implemented. Therefore this rule has an effective date of 60 days after publication in the Federal Register. We are drafting implementation guidance, and will release it for public notice and comment before officially adopting it.

Full post as published by ESA Blawg on September 15, 2009 (boomark / email).