United States: New Regulations Could Expand CEQA Review Of Impacts To Common Birds

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


  • 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.


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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.