Photo: U.S. Fish and Wildlife Service

On August 14, 2015, the California Department of Fish and Wildlife (Department) issued a Notice of Proposed Rulemaking relating to nesting birds and birds of prey.  Specifically, the Department is proposing to adopt regulations implementing the prohibitions found in California Fish and Game Code sections 3503 and 3503.5.  In pertinent part, these sections make it unlawful to “take, possess, or needlessly destroy” the nest or eggs of any bird (section 3503) or any bird-of-prey (section 3503.5).  In short, the laws prohibit the take of non-endangered or non-threatened nesting birds and birds-of-prey.

The provisions have caused confusion for many years regarding what activities trigger the sections’ prohibitions; the Department believes that the new regulations will help clarify the sources of confusion.  Among other things, the proposed regulations will define key terms, specify exceptions to the take prohibitions, and describe the Department’s consultation role in implementing the California Environmental Quality Act (CEQA), as that statute relates to conserving populations of birds  The Department maintains that through outreach to various stakeholders, the Department “has developed a clear understanding of the challenges these prohibitions present to agriculture, forestry, the building industry, transportation agencies, utilities and others, as well as the concerns held by environmental and conservation organizations….”

According to the Department, the regulations are “the most reasonable interpretation of these statutes that implements the Legislature’s intent and balances stakeholder concerns with the Department’s conservation mission.”  Notably, the Department is not proposing to create a separate permit system for nesting birds and birds-of-prey, but plans to use the proposed regulations to integrate CEQA with the current code sections.

The stated deadline for public comment on the proposed rulemaking is September 28, 2015.