Is aerial spraying of organophosphates on protected species and their nests a taking under federal criminal laws?

What do you reckon?

April 2009 environmental report on NC Turnpike states at – 31-32

Bald and Golden Eagle Protection Act. The bald eagle was adopted as a national symbol in 1782. During the next century and a half, the bald eagle was heavily hunted. This led Congress to pass the Bald and Golden Eagle Protection Act in 1940 to prevent the species from becoming extinct. In 1962, Congress adopted the Bald and Golden Eagle Protection Act (BGEPA) to protect golden eagles, which also strengthened protection of bald eagles since they were often killed by
people mistaking them for golden eagles. The BGEPA prohibits the "take, possession, sale, or purchase" of the bald eagle as well as the "offer to sell, purchase, export or import" the bald eagle "at any time or in any manner (16 USC 668-668d)." (USFWS Web site: www.fws.gov/permits/mbpermits/ActSummaries.html).
The BGEPA 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''; the broadest of these terms is ‘‘disturb.'' ‘‘Disturb'' has been defined by the USFWS in regulations (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.''

Projects located in proximity to a bald eagle nest may have the potential to "disturb" the species and thus could result in an incidental take. The USFWS has proposed regulations that would provide a basis for authorizing incidental takes of bald eagles under the BGEPA (72 FR 31,141, June 7, 2007). That rulemaking has not yet been finalized. Since the bald eagle was declared recovered and removed from the

Federal List of Threatened and Endangered Species in July 2007, the Bald and Golden Eagle Protection Act (BGEPA)is the primary law protecting bald eagles. The bald eagle also continues to be protected by the Migratory Bird Treaty Act (MBTA),

http://www.ncturnpike.org/pdf/06_DEISGaston_Ch6_NaturalEnv.pdf