Elizabeth Lake is a Partner and Daniel Golub an Associate in our San Francisco office

HIGHLIGHTS:

  • The California Department of Fish & Wildlife (CDFW) published draft regulations on Aug. 14, 2015, interpreting California laws that protect birds of prey, and the nests and eggs of birds generally.
  • The CDFW's draft regulations were released on the heels of the U.S. Fish & Wildlife Service's (USFWS) recent announcement that it is considering a new program to regulate the incidental "take" of birds protected under the Migratory Bird Treaty Act (MBTA).
  • Although CDFW is not proposing a new permitting regime, the draft regulations appear to expand CEQA review to apply a significance test for populations of common bird species.

The California Department of Fish & Wildlife (CDFW) published draft regulations interpreting California laws that protect birds of prey, and the nests and eggs of birds generally. These draft regulations, released on Aug. 14, 2015, come closely on the heels of the United States Fish & Wildlife Service's (USFWS) recent announcement that it is considering a new program to regulate the incidental "take" of birds protected under the Migratory Bird Treaty Act (MBTA).1 Taken together, these regulatory initiatives raise the profile of common bird species and could affect the steps that public agencies, renewable energy companies, developers and farmers must take to avoid impacts on birds, including the level of review required under the California Environmental Quality Act (CEQA). (See CDFW's draft regulations and supporting documents.) Comments on the draft regulations must be submitted to CDFW no later than Sept. 28, 2015.

Background of the California Fish & Game Code's Protections for Nests, Eggs and Birds of Prey

California has had a law on the books since 1909 making it illegal to disturb bird nests and eggs. The original purpose of this statute was to prevent over-collection of eggs and nests for domestic consumption, educational uses and the millinery trade.

Under the current version of the statute, "[i]t is unlawful to take, possess, or needlessly destroy the nest or eggs of any bird, except as otherwise provided by this code or any regulation made pursuant thereto."2 Another provision of the Fish & Game Code, enacted in 1985 as part of a comprehensive approach to regulate falconry, protects all birds of prey as well as their nests and eggs:

[I]t is unlawful to take, possess, or destroy any birds in the orders Falconiformes or Strigiformes (birds of prey) or to take, possess, or destroy the nest or eggs of any such bird except as otherwise provided by this code or any regulation adopted thereto.3

No exceptions are provided in the code and CDFW has never promulgated any regulations interpreting these provisions. Violating either provision is a misdemeanor, but criminal prosecutions are rare. The primary effect of the provisions has been through the California Environmental Quality Act (CEQA).4 Lead agencies conducting CEQA review typically document consistency with the two provisions by analyzing how a project will avoid destroying bird nests or killing birds of prey.

These state laws have some important parallels to, but some very important differences from, the federal MBTA. Originally enacted to address over-hunting, the MBTA protects all migratory birds (which includes most species found in the United States) as well as their nests and eggs. Unlike CDFW, the USFWS has a regulatory program in place for applicants to receive permission to intentionally "take," or otherwise intentionally affect, migratory birds, for the purposes of falconry, raptor and game bird propagation, scientific collecting, and other specified activities.

Neither the state nor the federal statute has a general permitting scheme to authorize and regulate "incidental take" – where the impact on birds is incidental to an otherwise lawful activity. However, USFWS has recently begun pursuing some more high-profile criminal prosecutions, targeting first oil and gas operations and more recently, wind farms. In response to public outcry over these actions, USFWS recently published notice of proposed rulemaking, and initiated a Programmatic Environmental Impact Statement, to consider a program that would also regulate the "incidental" take of migratory birds.5 USFWS has received public comment on this initiative and is currently considering its next steps on this proposal.

CDFW Draft Regulations

CDFW states that it has proposed the new regulations to "provide clarity to terms that are subject to diverse interpretations by stakeholders, the general public and Department staff." The agency maintains that the overall effect would be limited since they expect that the regulations merely formalize the interpretations the agency has generally given the statutes to date. CDFW notes that it considered, but decided not to propose, a "permitting program" similar to the one USFWS may be considering for migratory birds, and that is currently in place under the federal and California Endangered Species Acts. CDFW rejected that idea "due to the related challenges of establishing a permit fee structure, a CEQA compliance strategy for individual permits, and increased need for State budget and personnel authority."

Instead of proposing a permit program, the draft regulations do three things.

  • First, CDFW defines and interprets terms that appear in the statutory language.
  • Second, the regulations specify certain limitations to the reach of the regulations, to defer to other federal and state laws protecting birds, where applicable.
  • Third, the regulations propose thresholds of significance that CDFW will use when acting as a lead or responsible agency under CEQA in determining whether the potential take, possession or destruction of nests, eggs or birds of prey will have a "significant impact on avian biological resources."

Definitions and Interpretations

CDFW's draft regulations would specify that it is a violation of Section 3503 to take any action, except in an emergency, "that physically modifies the nest of a native bird from its previous condition and adversely affects the survival of the native bird's offspring when it is feasible to avoid such effect until eggs, nestlings, or juvenile birds no longer require the nest for survival." Avoidance would be considered "feasible" in the same way the term is used under the CEQA Guidelines: "capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors."6 A "native bird" is "any bird species determined by ... [CDFW] to occur naturally in California as a resident, regular migrant or occasional migrant species." As applied to the nests and eggs of birds of prey, the regulations are much tighter. With no exception for infeasibility, it would be considered a violation of Section 3503.5 to take "any action that physically modifies a nest from its previous condition and adversely affects the survival of a bird of prey or its eggs."

Conformance with Other Federal and State Laws

Since numerous other federal and state programs already protect bird species, the regulations provide for those programs to take precedence over the new regulations. Specifically, actions that would otherwise be considered violations of Sections 3503 and 3503.5 would not be considered violations where they have been authorized by USFWS under the terms of the MBTA. Similarly, the regulations would not apply to actions authorized by state agencies pursuant to the California Endangered Species Act, the Natural Community Conservation Planning Act, a Lake and Streambed Alteration Agreement, an approved coho salmon habitat enhancement project, or as otherwise provided in the Fish & Game Code or implementing regulations. Actions to prevent or mitigate an emergency as defined in CEQA are also excepted.7

CEQA Thresholds of Significance

Under the draft regulations, CDFW would consider a potential impact on "avian biological resources" to be significant if a project meets one of four standards:

  1. If it would have "a substantially adverse effect, either directly or through habitat modifications, on any population of a native bird species" that is considered "endangered," "rare" or "threatened" under 14 C.C.R. 15380(c) or (d).
  2. If it would have the potential to "substantially reduce the habitat, restrict the range or cause a population of a native bird species to drop below self-sustaining levels." This threshold, which borrows language from Appendix G in the CEQA Guidelines, is not limited to endangered, rare or threatened species.
  3. If "[t]he project is likely to have long-term adverse consequences for one or more populations of native bird species." This language does not appear in Appendix G, and again is not limited to endangered, rare or threatened species.
  4. If "[t]he project has direct or indirect environmental effects on native bird species that are individually limited but cumulatively considerable."

Concerns and Issues About CDFW Proposed Regulations

Unlike the USFWS current proposal to enact a new regulatory permitting regime under the MBTA, here CDFW's stated objective is to formalize the agency's approach of reviewing impacts to nesting birds and falcons more generally through other permitting processes. Nonetheless, questions related to this proposal remain, including:

  • the expansion of CEQA to apply significance thresholds to common bird species
  • how "population" will be interpreted and whether it is appropriate to require a population investigation to common bird species
  • when and how project proponents would have to demonstrate infeasibility
  • the effect on projects not subject to CEQA or the other listed permits and whether the list of other permits and regulatory programs is complete
  • consistency with federal and other regulatory requirements (whether other permits and review process meet the stated requirements of the state statutes)

Next Steps for Interested Parties

Regulated parties, such as project proponents whose projects may impact birds, should carefully review the draft regulations to ensure that they strike the appropriate balance between protecting threatened bird species and ensuring a reasonable process for renewable energy and other types of developers to achieve project approvals.

Holland & Knight is well-prepared to help navigate these proposed state regulations. For assistance or further information about these draft state regulations or the recent federal permitting proposal under the MBTA, please contact your Holland & Knight West Coast Land Use and Environmental Group lawyer.

Notes

1 16 U.S.C. §703 et seq.

2 Cal. Fish & Game Code §3503 ("Section 3503").

3 Cal. Fish & Game Code §3503.5 ("Section 3503.5").

4 Cal. Public Resources Code §21000 et seq.

5 80 Fed. Reg. 30032 (May 26, 2015).

6 14 Cal. Code.Regs.. §15364.

7 See Cal. Public Resources Code §21060.3.

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