New CESA Candidate Species Impacts Project Permitting Requirements Throughout California

At its Oct. 9-–10, 2024, meeting in Sacramento, the California Fish and Game Commission (Commission) unanimously voted to make the western burrowing owl a “candidate” species under the California Endangered Species Act (CESA). This decision immediately grants CESA protections to the burrowing owl, making it a civil and potentially criminal offense to “take” an owl without a permit.

This decision by the Commission will have widespread impacts on entities throughout the state, including but not limited to homebuilders, renewable energy developers, agricultural interests, and public entities. 
 

Next Steps in the Process

The Commission found that listing of the species “may be warranted,” triggering a 12–18 month status review, which will be undertaken by the California Department of Fish and Wildlife (CDFW). While the decision to designate the burrowing owl as a candidate species is primarily based on the information provided in the listing petition (authored by the Center for Biological Diversity and other conservation groups), the status review must be based on the best available science and peer reviewed. It will include a recommendation from CDFW on whether formal listing is warranted. The Commission will then determine whether to list the burrowing owl as threatened or endangered under CESA, which may apply statewide or for particular burrowing owl populations in certain areas of the state.

Western burrowing owls are small birds that roost in underground burrows typically taken over from other burrowing animals such as ground squirrels, foxes, coyotes and tortoises. The breeding season is from February to August, and many populations are nonmigratory with strong fidelity to the areas of their burrows. They have the potential to occur over most of California, including grasslands, agricultural fields and deserts.

Although not listed under the federal Endangered Species Act, the burrowing owl is already a California Species of Special Concern, a federal Bird of Conservation Concern, protected under the Migratory Bird Treaty Act, and protected by other provisions of the California Fish and Game Code. Additionally, CDFW’s 2012 Staff Report on Burrowing Owl Mitigation provides guidelines related to surveying and evaluating potential project impacts, and suggests avoidance, minimization and mitigation measures. A previous CESA petition in 2003 was denied by the Commission. However, population numbers have declined since that time. The current petition suggests existing protections are insufficient and requests the Commission adopt additional measures to protect the burrowing owl. Those suggested measures will be considered during CDFW’s status review process.
 

Implications for Current and Future Projects 

As noted above, the burrowing owl now qualifies for temporary legal protection from “take” under CESA. “Take” is defined as hunt, pursue, catch, capture or kill, or attempting any of those activities. Penalties can range from $25,000 to $50,000 fines for each violation, up to one-year imprisonment or both. To protect against penalties for inadvertent take, project proponents typically apply to CDFW for a permit to allow take that is incidental to carrying out an otherwise lawful activity (an “incidental take permit” or “ITP”). Permits require permittees to implement species-specific minimization and avoidance measures, and to fully mitigate the impacts of the take.

Applications should be submitted to the appropriate CDFW Regional Office and must include a variety of information on, among other things, the project location, anticipated impact to the species and proposed mitigation measures. Applications must also document compliance with the California Environmental Quality Act (CEQA), which can pose an additional complication. Once CDFW receives a complete application, and depending on the complexity of the project, it may take months for a final permit to issue. 

Again, this decisions will widely impact project permitters throughout the state, particularly in the homebuilding, renewable energy, and agriculture industries as well as public entities and other. If you or your company have plans that may be affected by this decision, Brownstein can assist you in evaluating the possible impact and developing a strategy to respond.

This document is intended to provide you with general information regarding the western burrowing owl as a candidate species under CESA in California. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions. The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.