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CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AF21

NOTICE: Part III

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Removing the Bald Eagle in the Lower 48 States From the List of Endangered and Threatened Wildlife

DATES: This rule is effective August 8, 2007.

DOCUMENT 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.

SUMMARY: Interior Department, Fish and Wildlife Service,

SUPPLEMENTAL INFORMATION

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. 668668d) in 1940 and the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703712) 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. 89699, 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). Subspecific 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 reopened 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 90day 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 070038PHXMHM (D. Ariz.), challenging the Service's 90day finding that the Sonoran Desert population did not qualify as a DPS, and further challenging the Service's 90day finding that the Sonoran Desert population should not be uplisted 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 90day 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 12month finding had the Service made a positive 90day 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, 90day 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 mid1970s, 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 5Factors analysis section, based on the information present today, the southwest region is a not a significant portion of the range.

In some cases, we appoint experts to recovery teams to assist in the preparation of recovery plans. For the bald eagle, separate recovery teams composed of experts in each geographic area prepared recovery plans for their region. The teams established recovery objectives and criteria and identified tasks to achieve those objectives. Coordination meetings were held regularly among the five teams to exchange data and discuss progress towards recovery.

We used these five recovery plans to provide guidance to the Service, States, and other partners on methods to minimize and reduce the threats to the bald eagle and to provide measurable criteria that would be used to help determine when the threats to the bald eagle had been reduced so that the bald eagle could be removed from the Federal List of Endangered and Threatened Wildlife.

Recovery plans in general are not regulatory documents and are instead intended to provide a guide on how to achieve recovery. There are many paths to accomplishing recovery of a species in all or a significant portion of its range. The main goal is to remove the threats to a species, which may occur without meeting all recovery criteria contained in a recovery plan. For example, one or more criteria may have been exceeded while other criteria may not have been accomplished. In that instance, the Service may judge that, overall, the threats have been reduced sufficiently, and the species is robust enough, to reclassify the species from endangered to threatened or perhaps to delist the species. In other cases, recovery opportunities may be recognized that were not known at the time the recovery plan was finalized. Achievement of these opportunities may be counted as progress toward recovery in lieu of methods identified in the recovery plan. Likewise, we may learn information about the species that was not known at the time the recovery plan was finalized. The new information may change the extent that criteria need to be met for recognizing recovery of the species. Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan.

Recovery of the bald eagle has been a dynamic process. As new information became available, it was used during the recovery implementation process to help the Service determine whether recovery was on track. For instance, after the bald eagle was downlisted in 1995, the Southeastern Recovery Plan did not have specific delisting goals, and the Service used the recovery team to help determine the appropriate goal. This new delisting goal is considered the best available data in helping the Service determine whether the threats have been removed and to move forward with the delisting.

All of the bald eagle recovery plans established goals for the number of occupied breeding areas and the productivity of the populations in the individual recovery regions. By setting a goal to monitor population numbers and productivity, the Service could determine whether the threats that led to the bald eagle's endangerment were being removed. With the reduction in levels of persistent organochlorine pesticides (such as DDT) occurring in the environment and the habitat protection and management actions that have been put in place, the bald eagle population has shown a remarkable increase in numbers. Between 1990 and 2000, the bald eagle population had a national average productivity of at least one fledgling per nesting pair per year. As a result, the bald eagle's nesting population increased at a rate of about 8 percent per year during this time period. Since 1963, when the Audubon Society estimated that there were 487 nesting pairs, bald eagle breeding in the lower 48 States has expanded to more than 9,789 nesting pairs today (U.S. FWS 1995, p. 36001; U.S. FWS 1999, p. 36457.)

Some States have shown increases in their bald eagle pairs over the past several years. For example, Illinois had an estimated 36 pairs in 1999, but the State had an estimated 100 pairs in 2006 (Conlin 2006, p. 1). Iowa had an estimated 100 pairs in 1999, and their bald eagle population has doubled to an estimated 200 pairs in 2006 (Vonk 2006, p. 1). Minnesota had an estimated 681 pairs in 2001, and an estimated 1,312 pairs in 2005 (Moore 2006, p. 1). In recent decades, Vermont was the only State in the conterminous United States that did not have nesting bald eagles. In 2006, a pair of bald eagles nested in Vermont for the first time since the 1940s, and now Vermont has one nesting pair (Amaral 2006, p. 3). To date, the bald eagle's population growth has exceeded all the numeric goals established in the five recovery plans. In most of the recovery regions, the numeric goals for breeding pairs have been significantly exceeded. For example, the delisting goal in the Northern States Recovery Plan calls for 1,200 breeding pairs distributed over a minimum of 16 States. Today, there are an estimated 4,215 breeding pairs covering every State in that recovery region. BILLING CODE 431055P
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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 82408243 of the February 16, 2006, reopening of the public comment period on the proposed rule to delist the species (71 FR 8238). Summary of Comments and Recommendations

We requested written comments from the public on February 16, 2006 (71 FR 8238), when we reopened the public comment period on our July 6, 1999 (64 FR 36454), proposed rule to delist the bald eagle in the lower 48 States. In that reopening notice, we responded to comments previously received on the July 6, 1999 (64 FR 36454) proposed delisting rule. Therefore, the preamble to this final rule addresses only the comments we received on the February 16, 2006, notice. The comment period was reopened from February 16, 2006, to May 17, 2006. During that time, we received two requests to extend the public comment period. In response to those requests, on May 16, 2006 (71 FR 28293), we extended the public comment period to June 19, 2006. As part of the reopening of the public comment period, we also contacted the States and Tribes to solicit their comments.

In conformance with our policy on peer review, published on July 1, 1994 (59 FR 34270), we solicited opinions from three scientific experts who are familiar with this species to peer review the proposed rule. We received comments from two of the three peer reviewers, and those two peer reviewers convened panels of scientific experts to review the information provided. Their comments are included in the summary below. One peer reviewer generally supported the proposed delisting, and the other peer reviewer did not.

We reviewed all comments received from the peer reviewers, State and Tribal agencies, and the public for substantive issues and new information regarding the proposed delisting. We received a total of 387 new comments.

Section 4(b)(1)(A) of the Act requires that determinations as to whether any species is a threatened or endangered species shall be made ``solely on the basis of the best scientific and commercial data available,'' including all information received during the public comment period. Comments merely stating support or opposition to the proposed delisting without providing supporting data, although noted, were not considered substantial and therefore were not considered in our determination. Substantial comments received during the comment period have either been addressed below or incorporated directly into this final rule.

Peer Review Comments

Issue: Several commenters, including one of the peer reviewers, stated that threat of habitat loss, including foraging, breeding, and wintering/roosting habitat (including communal roosting areas), due to development will continue because there are no adequate habitat protections (existing regulatory mechanisms) for bald eagles after delisting. One peer reviewer acknowledged that BGEPA and MBTA provide protection to birds, their nests, and eggs, but opined that those statutes offer no protection to habitat. In addition, the commenters believed that the proposed regulatory definition of ``disturb'' and the draft National Bald Eagle Management Guidelines will not be adequate to provide habitat protection. One peer reviewer expressed an opposite opinion stating that the proposed BGEPA definition and guidelines provide an adequate framework for protecting eagles and their habitat using BGEPA and MBTA.

Response: As discussed in detail under Factor A, the bald eagle population is continuing to increase in the lower 48 States, showing that reduced availability of habitat is not a current threat to the species. Nesting habitat is secure on many public and private locations throughout the lower 48 States. We acknowledge that some habitat threats continue to exist. However, this localized habitat loss will be limited by the operation of various Federal laws that will remain in effect after delisting (e.g., BGEPA, MBTA, and the Clean Water Act (CWA)).

The commenters are correct in that the BGEPA contains no provisions that directly protect habitat, except for nests. However, as further discussed under Factor A below, individual bald eagles are protected from certain effects that are likely to occur as the result of various human activities, including some habitat manipulation. Activities that disrupt eagles at nests, foraging areas, and important roosts can wound, kill, or disturb eagles, all of which are prohibited by the BGEPA. Through promulgation of the regulatory definition of disturb (72 FR 31132; June 5, 2007) and issuance of the National Bald Eagle Management Guidelines (72 FR 31156; June 5, 2007), we have clarified that eagle nests, important foraging areas, and communal roost sites are afforded protection under the BGEPA to the degree that adjacent habitat modification would disturb, injure, or kill eagles.

Issue: One of the peer reviewers stated that the final delisting rule should include a list of updated population data by State with references to the survey from which the data were obtained.

Response: We have included an updated national population estimate in this final rule along with a map with the estimated number of breeding pairs per State. To ensure that our determination on the status of the bald eagle was based ``solely on the basis of the best scientific and commercial data available'' as required by the Act, we used State population data provided to us directly by a State agency, the Pacific Flyway Council, or from a State Web site. Based on this information, there are an estimated 9,789 bald eagle pairs in the lower 48 States. We believe this is a conservative estimate based on the results of our pilot studies for the postdelisting monitoring plan (USFWS 2007). For example, in the pilot study conducted by Minnesota, 872 known nest sites were observed as occupied in 2005. Incorporating the use of area random plots for our pilot study, Minnesota's estimate of nesting bald eagle pairs increased to 1,312. Minnesota estimates that their known nest survey, which is similar to those conducted by each of the States and used to produce data for the delisting, may only count twothirds of the breeding pairs in the State (Moore 2006, pp. 1 2).

Issue: Both peer reviewers expressed concern about using outdated recovery plans and delisting criteria. One peer reviewer recommended that the delisting criteria in the recovery plan for Southeastern United States bald eagles should be peer reviewed before finalizing the delisting. One commenter thought the Service should seek more advice from the recovery team members.

Response: Recovery plans are not regulatory documents and are instead intended to provide guidance to the Service, States, and other partners on methods of minimizing threats to listed species and on criteria that may be used to determine when recovery is achieved. There are many paths to accomplishing recovery of a species, and recovery may be achieved without fully meeting all criteria in a recovery plan. Overall, recovery of species is a dynamic process requiring adaptive management, and judging the degree of recovery of a species is also an adaptive management process that may, or may not, fully follow the guidance provided in a recovery plan.

Over the years, the Service sought advice from several recovery teams. In the Southeast, we used the advice of the recovery team to give us a population target that would indicate that the threats had been reduced. We believe
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this is the best available information at this time.

Issue: One peer reviewer and several commenters noted concern over the viability of the Southwest population of bald eagles based on low numbers of breeding pairs, relatively low productivity, relatively high adult mortality, and threats of habitat alteration and human disturbance. Based on this information, the peer reviewer recommended designating the population as a DPS and deferring the delisting.

Response: As further discussed in the Summary of Factors Affecting the Species section, the Service does not believe the bald eagle population in the Southwest meets the criteria stated in our DPS policy (61 FR 4722; February 7, 1996), nor is this population a significant portion of the range of the lower 48 States population of bald eagles. Therefore, consideration of the viability of, or threats to, the Southwestern population, standing alone, is not relevant to the delisting determination for the lower 48 States bald eagle population.

Issue: Several commenters, including peer reviewers, commented that a postdelisting monitoring (PDM) plan should be in place when delisting occurs and should remain in effect longer than 5 years. In addition, the plan should be comprehensive and scientifically based to monitor changes in population, productivity, wintering populations, habitat, and contaminants.

Response: Based on comments from the 1999 proposed delisting rule, we have been working steadily on the development of a revised national postdelisting monitoring plan, including conducting several pilot studies in cooperation with the States, to produce a monitoring plan that will be more scientifically robust than previously proposed in the 1999 proposed delisting rule. We have modified the draft postdelisting monitoring plan to take into account the life cycle of the bald eagle.

We are making the revised draft of the monitoring plan is available for public comment simultaneously with this rule elsewhere in today's Federal Register. We agree that a plan should ideally be in place at the time of delisting; however, given the proposed 20year 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 300400 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. 22, map 21). 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 nonnesting 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 Statelevel 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. 703712), or the BGEPA, as amended (16 U.S.C. 668 668d), if such take is in full compliance with the terms and conditions of an incidental take statement issued to the action agency or applicant under the authority of section 7(b)(4) of the Act or the terms and conditions of a permit issued under the authority of section 10(a)(1)(B) of the Act. The Service has proposed a rulemaking to establish criteria for issuance of a permit to authorize activities that would ``take'' bald eagles under the BGEPA. The Service has addressed the existing Act authorizations in that rulemaking, which if finalized, might extend comparable authorizations under the BGEPA (72 FR 31141; June 5, 2007).
Factor E. Other Natural or Manmade Factors Affecting Its Continued Existence

Issue: Several commenters were concerned about ongoing impacts of contaminants. One commenter noted that mercury is still a threat to bald
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eagles in the Northeast United States. Another commenter noted that PCBs and DDE were still an ongoing threat to the Great Lakes population of bald eagles. Another commenter noted that the upper Midwest population of bald eagles is experiencing a heavy metal contaminant problem that affects the ratio of immature eagles to adults. Another commenter stated that too many nests in northern Illinois have zero productivity due to contaminants.

Response: As we discuss further in Factor E below, we acknowledge that certain contaminants may pose a threat to individual bald eagles. We believe many of these instances are localized and that contaminants will not be a large enough threat to limit the population of bald eagles in the lower 48 States or any significant portions of its range in the foreseeable future such that the protection of the Act would be warranted. This is evidenced by the population increases that have occurred despite the presence of certain levels of contaminants, including mercury and PCBs, in the environment.

Issue: One commenter was concerned that climate change may be an issue, and we should, therefore, keep the bald eagle listed until we can guarantee that habitats are safe.

Response: Section 4(b)(1)(A) of the Act directs that determinations as to whether any species is a threatened or endangered species shall be made ``solely on the basis of the best scientific and commercial data available.'' We did not receive any data during the public comment period to indicate that climate change is currently threatening the future security of the bald eagle or its habitat. Since the bald eagle is currently successful in a wide range of climate conditions throughout North America, climate change will not likely be a factor threatening the species in the foreseeable future.

General Comments

Issue: The Service may take too long to relist the bald eagle if it is warranted.

Response: If data from the postdelisting monitoring plan show that the bald eagle population is decreasing below a trigger threshold specified in the plan, we will investigate the cause of the decline and take the necessary measures to address the decline. If the population decline is severe, then we will promptly evaluate whether relisting under the Act is warranted, including the Act's provision for emergency listing, as appropriate.

Issue: The Service used an outofdate, nonscientific 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 2hour period from northern Minnesota to Reelfoot, Tennessee. These data, on their face, did show a fluctuation in the number of immature bald eagles throughout the time period from 1961 to 2006, with some years having a higher number than others. However, these data also indicated a trend of increasing adults from 470 in 1961 to 1,299 in 2006. Throughout this time period, the number of adults also fluctuated. Because surveys of wintering bald eagles, such as the midwinter counts described above, are weather dependent (mild winters cause fewer birds to move south) and can include birds migrating down from Canada, the Service has relied on nesting data as the stronger indicator of bald eagle population trends in the lower 48 States. We plan to continue monitoring population trends with implementation of our postdelisting monitoring plan. However, we support the public involvement related to midwinter counts, and such data have highlighted the importance of wintering habitats used by these eagles.

Distinct Vertebrate Population Segment

Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. ``Species'' is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). We, along with the National Marine Fisheries Service (now the National Oceanic and Atmospheric AdministrationFisheries), 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 90day 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 freeflowing rivers and creeks.

We considered whether cliff nesting is an adaptation to the conditions in the Sonoran Desert that indicates the Southwest is a unusual or unique ecological setting for bald eagles. While Stalmaster (1987) noted that cliff nesting
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is common in Arizona, he also noted that exceptions to tree nests in other areas do occur. Gerrard and Bortolotti (1988, p. 41) note that bald eagles in other areas may nest on cliffs if suitable trees are not available. For instance, bald eagles are known to nest on cliffs on the Channel Islands off California (NOAA 2006). Bald eagles in Alaska also are known to nest on cliffs, sea stacks, hillsides, and rock promontories where there are no suitable nest trees (Sherrod et al. 1976, p. 153). It is likely that up to 10 percent of the bald eagles in Alaska nest on the ground (Schempf 2007). Ground nesting has been documented in northwestern Minnesota and Florida but is the exception rather than the rule (Hines, P. and H. Lipke 1991; Shea, R.E. and Robertson W.B. Jr. 1979). Eagles also nest in a variety of odd situations, such as utility poles, abandoned heavy equipment, mangroves, and root wads washed up on sandbars. Cliff nesting in the Sonoran Desert bald eagles does not seem to be an indication of a behavioral adaptation unique to the Sonoran Desert. Bald eagles will use whatever high nest sites are available near riparian areas they inhabit: in the Sonoran Desert these sites often happen to be cliffs. In fact, although bald eagles utilize cliffs, ledges, and pinnacles for nesting in the Sonoran Desert, they have also nested in cottonwood, willow, sycamore, pinyon pine, and ponderosa pine trees. Many Sonoran Desert eagle pairs have built and used both tree and cliff nests within their territories. This behavior demonstrates the flexibility in nest site selection that bald eagles have throughout the eagles' entire geographic range.

Bald eagles in the Sonoran Desert are smaller in size and breed earlier in the season than most other bald eagles, which could indicate behavioral adaptations to a unique setting. However, examination by latitude reveals differences between birds in the northern regions and birds in the southern regions. For instance, Stalmaster (1987, pp. 16 17) notes northern eagles are much larger and heavier than their southern counterparts. This is consistent with Bergmann's Rule, which holds that animal size increases with increasing latitude due to changes in environmental temperature. Consistent with this rule, Hunt et al. (1992) reports that bald eagles in Arizona are smaller than those in Alaska, California, and the Greater Yellowstone Region. Gerrard and Bortolotti (1988, p. 14) note that bald eagles in Florida, which is farther south than Arizona, are the smallest, with a gradation of small to large from south to north. Timing of various breeding events in bald eagles is also tied to latitude of the nesting area, with eagles at more northern latitudes breeding at later dates (Stalmaster 1987, p. 63). Stalmaster (1987, p. 63) notes that bald eagles in Florida initiate breeding activities in October, even earlier than Sonoran Desert bald eagles. Bald eagles in Florida also lay eggs earlier (Stalmaster 1987, p. 63; Gerrard and Bortolotti 1988, p. 76). Accordingly, Florida bald eagles hatch and fledge earlier than those in the Sonoran Desert.

In summary, Stalmaster's (1987) and Gerrard and Bortolotti's (1988) studies indicate that bald eagles in other parts of the lower 48 States are known to nest on cliffs if suitable trees are not available. Hunt et al. (1992) notes that Florida bald eagles are the smallest bald eagles, and that eagle size increases as the nest sites are located farther north. Stalmaster (1987) notes that bald eagles in Florida initiate breeding activities in October, even earlier than Sonoran Desert bald eagles. The best available scientific information indicates that the Sonoran Desert bald eagles are not unique in these behavioral aspects. Instead, bald eagle behavior and morphology gradually changes at different latitudes from north to south within the lower 48 States. In fact, even though bald eagles do persist in the Southwest desert setting, they remain consistently associated with riparian ecosystems. Bald eagles use whatever high nest sites are available near riparian areas they inhabit in the Sonoran Desert; these sites often happen to be cliffs. Therefore, because these riparian areas are common to eagle habitats throughout the species' range, the best available data indicate that the Sonoran Desert population of eagles does not occupy an ecological setting that is unusual or unique for the taxon or that has resulted in any adaptations that are unusual or unique for the taxon.

Many biological opinions prepared by the Service in connection with section 7 consultations in the Sonoran Desert and other Service documents issued over the last 30 years stated that Arizona bald eagles live in a unique ecological setting and demonstrate unique behavioral characteristics, including the use of cliffs instead of trees as nest sites, breeding at earlier times of the year, and development of smaller body sizes. Many of these biological opinions and other documents were issued prior to the Stallmaster (1987) and Gerrard and Bortolotti (1988) studies. Furthermore, these Service documents were prepared prior to the issuance of the DPS policy in 1996, or abstracted from such earlier biological opinions without reanalyzing 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 47244725). 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 secti

FOR FURTHER INFORMATION CONTACT Chief, Branch of Recovery and Delisting, telephone (703) 3582061 or facsimile (703) 3581735.

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 18008778339 for TTY assistance, 24 hours a day, 7 days a week.