At its October 10 meeting, the California Fish and Game Commission (the Commission) unanimously found that a petition to list the western burrowing owl (Athene cunicularia hypugaea) as an endangered or threatened species in California provides sufficient scientific information to indicate that the petitioned action may be warranted, thereby officially granting the burrowing owl “candidate” species status under the California Endangered Species Act (CESA).

The candidacy designation temporarily affords the burrowing owl broad CESA protections (including prohibitions against “take” without permit authorization) throughout the entirety of California over the next 12-18 months while the California Department of Fish and Wildlife (CDFW) conducts a species status review to confirm whether (and where) listing is warranted and to recommend management and recovery actions. As a practical matter, although the burrowing owl is already afforded special consideration under various federal and state regulatory regimes, the Commission’s candidacy decision means that many project proponents will now be required to obtain an “incidental take permit” (ITP) from CDFW for potential project impacts to the burrowing owl in order to comply with CESA and avoid take liability. In addition, should the Commission change current burrowing owl management practices as part of a future listing decision, CDFW may assert that amendments to existing ITPs and/or regional conservation plans are needed to account for revised mitigation obligations.

SCOPE OF PETITION

The Commission’s determination was made in response to a petition filed by six conservation groups on March 5, 2024 (the Petition) and a subsequent evaluation by CDFW in August 2024 recommending that the Commission accept the Petition for further consideration under CESA, as detailed in our previous Legal Alerts. The burrowing owl was the subject of a previous 2003 CESA petition, which the Commission denied 4-0 at the time.

Although not formally protected under either the Federal Endangered Species Act or CESA, the burrowing owl is already listed as a California Species of Special Concern, considered a federal Bird of Conservation Concern, protected by the Migratory Bird Treaty Act (MBTA), and the take of burrowing owls without a permit is strictly prohibited under the California Fish and Game Code Sections 3503, 3503.5 and 3513. However, notwithstanding these various existing federal and state regulatory mechanisms, the Petition asserts that resource agencies have little authority or will to impose them and that burrowing owl special designations, legal protections and management efforts are inadequate to conserve the species and reverse ongoing population declines.

• Geographical Range

The Petition requests specific actions (Petitioned Actions) that implicate different geographic regions for specific California populations (or Evolutionary Significant Units (ESUs)), as follows:

1. Petitioners request:
   1. Endangered listings for the following regions: Southwestern California, Central-Western California, and San Francisco Bay Area ESUs, and
   2. Threatened listings for Central Valley and Southern Desert Range ESUs.
      1. If the Commission does not find the entire Central Valley population warrants threatened status, then Petitioners request that the Commission evaluate whether the Northern Central Valley, Middle Central Valley, and Southern Central Valley constitute distinct populations of burrowing owls, and whether any of these three populations separately warrant listing.
      2. If the Commission determines that the entire Southern Desert Range population does not warrant threatened status, Petitioners request that the Commission evaluate whether the Western Mojave, Eastern Mojave, and Sonoran Desert constitute distinct populations of burrowing owls, and whether any of these three populations separately warrant listing.
   3. Alternatively to listing ESUs, the Petition requests that the Commission list the western burrowing owl in the entirety of California as a threatened species under CESA.

CDFW evaluated the scientific sufficiency of the Petition and determined in August that the Petition was complete and that CESA protections for the burrowing owl may be warranted. CDFW’s evaluation did not focus on the merits of any of the specific individual Petitioned Actions above, but rather considered the Petition as a whole.

The Commission’s October 10 decision lists the burrowing owl as a candidate species throughout the state, pending CDFW’s status review and recommendation. Depending on CDFW’s status review analysis, recommendation to the Commission, and the Commission’s final listing determination, the ultimate geographic scope of CESA protections for the burrowing owl could be narrowed. In addition, under Fish and Game Code 2077(d), the Commission may change the geographic scope of essential habitat at any time based on a petition or other data available to CDFW and the Commission. This includes determining a species should be listed in fewer regions or delisting a species in a certain region(s) after it had already been listed.

• Burrowing Owl Management and Mitigation Guidelines

CDFW’s 2012 Staff Report on Burrowing Owl Mitigation (2012 Guidelines) serves as the standard guidelines for planning and undertaking surveys to determine burrowing owl occupancy, evaluating potential impacts of a project, and identifying sufficient mitigation measures to address impacts to the species, particularly for projects subject to CDFW involvement and/or environmental review under the California Environmental Quality Act (CEQA).

The 2012 Guidelines detail burrowing owl avoidance, minimization and mitigation approaches for consideration by CDFW staff, biologists, planners, and CEQA lead agencies when assessing impacts of a project. These mitigation methods may include, but are not limited to, avoidance measures, take avoidance (pre-construction) surveys, standardized buffer setbacks, translocation efforts (which involves active relocation offsite), and construction of artificial burrows. The 2012 Guidelines are considered voluntary in nature, though most agencies and project proponents look to them as best practice.

The Petition asserts that the 2012 Guidelines have lofty goals but that none have been accomplished since its publication. As such, the Petition expressly recommends that the Commission consider a comprehensive list of 15 “management and recovery actions,” including requiring adherence to the 2012 Guidelines, updating the 2012 Guidelines to require stronger survey methods, curtailing the use of passive relocation, limiting the active relocation of owls, accelerating emergency regional conservation planning, strengthening mitigation requirements, enforcing state Fish and Game Codes, amending management and land use plans (i.e., county and city general plans), and reviewing existing Habitat Conservation Plans (HCPs) and Natural Community Conservation Plans (NCCPs) “to ensure they are not promoting extirpation of burrowing owls and ensure they are assisting recovery.”

While some of these recommendations are more minor in nature, certain actions — such as prohibiting passive relocation and translocation of owls except in special circumstances — would have far reaching consequences and significantly overhaul currently prescribed burrowing owl practices. The changes would affect CEQA analyses and permitting obligations for substantial numbers of proposed projects, as well as conflict with the current 2012 Guidelines and currently approved burrowing owl mitigations provided in regional HCP/NCCP conservation plans.

The Commission did not expressly address the Petition’s recommended management and recovery actions as part of its candidacy decision, but these will be considered as part of CDFW’s status review process.

CANDIDATE SPECIES PROTECTIONS

A CESA candidate species is afforded broad CESA legal protections. Specifically, the “take” of a listed or candidate species is strictly prohibited without express authorization. “Take” is defined as “[h]unt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. (Fish & Game Code, § 86.) Civil and criminal penalties for take violations are substantial.

Typically, a project proponent acquires take authorization through CDFW’s approval of an ITP under Fish & Game Code Section 2081. An applicant must demonstrate that the take is “incidental” to an otherwise lawful activity, that any impacts from the take will be minimized and fully mitigated, and that adequate funding exists to implement minimization and mitigation measures. No ITP will be issued if CDFW determines that a project would “jeopardize the continued existence” of the listed species covered by the permit.

The Commission also retains separate jurisdiction under Fish & Game Code Section 2084 to authorize the taking of a candidate species, either by adopting a regulation concurrently with its decision to list the species as a candidate, or at a subsequent meeting (a Take Regulation). Though issuance of a Take Regulation is relatively uncommon, the Commission did adopt one in 2020 for the western Joshua tree based on concerns regarding the inability to proceed with project construction activities for certain critical infrastructure and renewable energy projects during the species’ candidacy period without express take authorization.

The Commission’s October 10 decision was undertaken pursuant to Section 2074.2 of the Fish & Game Code, which is the typical process by which a petition is accepted for consideration. No discussion of a Take Regulation was discussed during the Commission’s deliberations.

NEXT STEPS IN CESA LISTING PROCESS

CESA protections for the burrowing owl are effective once the Commission publishes notice of its decision to affected and interested parties. CDFW is now required to begin a 12-month status review of the burrowing owl and will ultimately prepare a written report to the Commission to indicate whether listing is warranted, identify essential habitat, and recommend management activities and recovery actions. The status review is limited to best available scientific data (no economic considerations are permitted) and must be peer reviewed.

Once CDFW’s status review is finalized and published for public review, the Commission will hold a public hearing and make a final determination as to the scope and extent of CESA legal protections for the species. Should the Commission find the petitioned action to be warranted, it will publish a notice of its finding and proposed rulemaking to add the species to protected CESA status.

PRACTICAL IMPLICATIONS FOR DEVELOPERS AND EXISTING PERMITTEES

Generally speaking, we expect that state and local permitting agencies will continue to follow CDFW’s 2012 Guidelines and identified burrowing owl avoidance, minimization and mitigation approaches, until and unless the Commission subsequently revises the 2012 Guidelines as part of the CESA listing process. Potential project impacts to burrowing owls are already scrutinized at a higher level than for non-special status species, but the Commission’s candidacy decision now formalizes and mandates such impacts be considered and authorized under CESA, or else legal liability will result.

• CESA Obligations for Proposed Projects

Project proponents seeking to develop on habitat where burrowing owls are present or known to be present should ensure the following actions are taken to comply with CESA and avoid take liability:

• Determine whether direct and indirect project impacts to the burrowing owl may be avoided or minimized by revising the project design or scope. CDFW will look to implementation of such measures as part of the ITP process.
• Identify potential project- and species-specific mitigation measures for remaining project impacts.
• Develop a sufficient compensatory mitigation strategy to offset these impacts, such as purchasing mitigation credits, contributing to an in-lieu fee program, or acquiring land for permittee-responsible mitigation, or conservation easements managed by land trusts, to permanently protect and manage compensatory habitat.
• Prepare and apply to CDFW for an ITP.

It is recommended that any ITPs issued during the burrowing owl’s candidacy period include express language stating that the ITP (and it’s resulting permittee obligations) will terminate before the permit’s stated expiration date if the burrowing owl ceases to be a candidate species and is not listed for protection under CESA. ITPs that only cover take of the burrowing owl would therefore terminate, whereas ITPs issued for the burrowing owl and other CESA-listed species could be amended by CDFW under applicable CESA regulatory provisions.

A safe harbor agreement or candidate conservation agreement with assurances may be other avenues for project proponents to pursue for take authorization instead of an ITP. However, these agreements are situation specific, require extra costs and negotiations, and may include mitigation or monitoring requirements that persist even if the burrowing owl is removed from candidacy.

• Amendments to Existing Take Authorizations

As discussed above, there is some level of risk that, depending on CDFW’s status review recommendations and the Commission’s final listing decision, the Commission could require changes to current species management practices (for example, prohibiting passive relocations). For projects already operating under an approved ITP, it is possible that CDFW might assert the right to impose amendments to existing ITP conditions to the extent any newly required management practices conflict with existing ITP permittee obligations. Notably, many ITPs contain “reopener provisions,” which CDFW may also assert would allow it to impose amendments to an ITP without a permittee’s concurrence based on the change in the burrowing owl’s listing status and/or associated changes to management practices. Those permittees who already have projects with burrowing owl conditions should contact Allen Matkins to determine whether any of these new rules could impact your project in any way.

Likewise, regional HCP/NCCP burrowing owl conservation measures may need to be later amended to include new management practices if such plans do not already include express “State Assurances” that provide that so long as the HCP/NCCP is being followed and implemented, CDFW shall not require additional mitigation or compensation without permittee consent and a determination that the permit would jeopardize the continued existence of the burrowing owl.