Proposed CDFW Bird Nest Regulations Carry CEQA Analysis Implications

California Environmental Quality Act (CEQA) analyses could become more involved under the California Department of Fish and Wildlife’s (CDFW) proposed changes to its existing regulations protecting the nests of birds of prey and California native birds.

Changes to the California Fish and Game Code (FGC) regulations would formalize the interpretations that the CDFW has traditionally followed in making CEQA recommendations, determining permit conditions, and implementing FGC statutes.

The changed regulations may provide some clarity, but may also introduce additional questions and considerations regarding implementation. If the proposed changes become law, project proponents would need to apply a more formal significance threshold within CEQA documents for impacts to birds of prey and common native bird species.

This expanded CEQA analysis would require new interpretations for “bird populations” and the potential need for native bird population investigations and surveys. New interpretations would also be necessary for the “feasible” avoidance of activities that may adversely affect the survival of native birds’ offspring (excluding birds of prey).

Proposed New Definitions
New definitions for certain key terms will help ensure compliance with the new FGC statutes. The CDFW has introduced the following key definitions to which the new regulations would adhere:

  • native bird: any bird species determined by the CDFW to occur naturally in California as a resident, regular migrant, or occasional migrant species.
  • nest: any site or structure built, maintained, or used by a native bird, which is occupied by eggs or nestlings, or is otherwise essential to the survival of a juvenile bird.
  • site: the specific spatial location that a native bird selects for egg-laying purposes.
  • needlessly destroy: any action 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 suchto effect until eggs, nestlings, or juvenile birds no longer require the nest for survival.
  • possess: to collect any nest or egg, to physically remove or relocate a nest or egg from a site, or to maintain physical control of a bird of prey for any period of time.
  • take: to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill [a protected species] (does not include nests, in this case).

Proposed New ‘Significant Impacts’ Threshold
The FGC statutes would apply new thresholds of significance for impacts related to the take, possession, destruction, or needless destruction of native bird nests, eggs, or birds of prey. Under the new regulations, a “significant impact” to avian biological resources would include the following:

  • Substantial adverse effect, either directly or through habitat modifications, on any population of a native bird species considered endangered, rare, or threatened;
  • Potential to substantially reduce the habitat, restrict the range, or cause a population of a native bird species to drop below self-sustaining levels;
  • Likelihood of long-term adverse consequences for one or more populations of native bird species; and
  • Environmental effects on native bird species that may be individually limited, but cumulatively considerable.

Exceptions to FGC Statutes

Certain exceptions to the new regulations have been outlined by the CDFW. The FGC statutes do not prohibit the following actions:

  • those authorized under the Migratory Bird Treaty Act (MBTA), the California Endangered Species Act, a natural community conservation plan, or other agreement;
  • those to prevent or mitigate emergencies; or
  • those authorized under an FGC Section 1602 Lake and Streambed Alteration Agreement or habitat restoration/enhancement project.

The proposed changes are long overdue and follow years of outreach, workshops, and solicitation of input from regulated industry sectors and concerned organizations. The Notice of Proposed Rulemaking was posted August 14, 2015 and has a 45-day public review/comment period ending September 28, 2015. A public hearing has also been scheduled in Sacramento on September 28, at the end of the 45-day review process.

The CDFW also considered, but decided against, including a new regulatory permitting program for incidental take of birds similar to the current proposal by the U.S. Fish and Wildlife Service for migratory birds under the MBTA.

For more information about biological analysis under CEQA and other regulations, contact us!