On October 10, 2024, after review of the March 2024 petition and the August 2024 petition evaluation, the California Fish and Game Commission accepted a petition to list western burrowing owl (Athene cunicularia hypugaea) under the California Endangered Species Act (CESA) and designated the species as a candidate species. This decision has triggered a 12-month status review by the California Department of Fish and Wildlife (CDFW). A decision on whether to list this species is expected by spring of 2026; however, as a candidate species, western burrowing owl is afforded the same protections as a listed species under CESA, including prohibition of take of individuals. Pursuant to California Fish and Game Code Section 86, “take” is defined as an action that would hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.
WESTERN BURROWING OWL CESA REVIEW TIMELINE
Practitioner Perspective on the Relationship to CEQA
Environmental review of projects under the California Environmental Quality Act (CEQA) has often involved mitigation for impacts on western burrowing owls that follow CDFW’s 2012 Staff Report on Burrowing Owl Mitigation (2012 Guidelines). These guidelines established standard procedures for planning and conducting surveys to assess burrowing owl occupancy, evaluating the potential impacts of projects, and identifying adequate mitigation measures for the species. Mitigation measures often include avoidance measures, preconstruction take avoidance surveys, standardized buffer zones, burrow exclusion and closure (passive relocation of owls off-site), and compensatory mitigation for permanent habitat loss.
The petition to list western burrowing owl describes relocation of owls (i.e., passive relocation through burrow exclusion), which is frequently used as mitigation for urban or energy development projects, as one of the main threats to the species. While passive relocation measures were intended to reduce impacts on western burrowing owls, the continuing decline of the species’ population indicates that owls that have been passively relocated may not always successfully breed following relocation and that a different mitigation strategy may be necessary for species recovery.
With burrowing owl now recognized as a candidate for listing, implementation of these measures from the 2012 Guidelines (e.g., passive relocation) could result in take of burrowing owl. If take is likely to occur as a result of previously adopted CEQA mitigation (or any action), an Incidental Take Permit (ITP) from CDFW would be required. A careful review of the impact and mitigation language is also recommended to determine if the language adequately describes all the activities to be covered by the ITP and would support CDFW’s discretionary action of issuing the ITP. CDFW’s responsibilities as a CEQA responsible agency are described in the California Code of Regulations, Title 14, Section 15096.
Alternatives to seeking an ITP that covers potential take from passive relocation could include requiring measures to avoid take. Take avoidance could occur by designing and implementing projects to seasonally and spatially avoid adverse impacts and disturbances that could result in take of burrowing owls, or their nests or eggs. As described in the CDFW 2012 Guidelines, avoidance measures include the following:
- Avoid disturbing occupied burrows during the nesting period, from 1 February through 31 August.
- Avoid disturbing burrows occupied during the non-breeding season by migratory or non-migratory resident burrowing owls.
- Avoid direct destruction of burrows through chaining (dragging a heavy chain over an area to remove shrubs), disking, cultivation, and urban, industrial, or agricultural development.
- Develop and implement a worker awareness program to increase the on-site worker’s recognition of and commitment to burrowing owl protection.
- Place visible markers near burrows to ensure that farm equipment and other machinery does not collapse burrows.
- Do not fumigate, use treated bait, or use other means of poisoning nuisance animals in areas where burrowing owls are known or suspected to occur (e.g., sites observed with nesting).
- Restrict the use of treated grain to poison nuisance animals to the months of January and February.
Establishing no-disturbance buffers around occupied burrows, satellite burrows, and foraging habitat can also be used to reduce the likelihood of take during project implementation.
Incidental Take Permits
Section 2081 subdivision (b) of the Fish and Game Code allows CDFW to authorize take of species listed as endangered, threatened, or candidate species, if that take is incidental to otherwise lawful activities and if certain conditions are met. These authorizations are commonly referred to as incidental take permits. ITPs allow a permittee to take a CESA-listed species if such taking is incidental to, and not the purpose of, carrying out an otherwise lawful activity. Permittees must implement species-specific minimization and avoidance measures and are required to fully mitigate the impacts of the project (Fish and Game Code Section 2081[b]; Cal. Code Regs., Title 14, Sections 783.2–783.8).
An ITP application needs to include a complete description of the project, location of the project, and species to be covered by the permit. The application must also include an analysis of the extent of take, the impact of the take, and whether the issuance of the ITP would jeopardize the continued existence of a species. Measures to minimize and fully mitigate the impacts of the take and a monitoring plan are also required. A description of the funding sources and the level of funding available for implementation of the minimization and mitigation measures must be included in the application. An application fee is required based on the cost of the project.
Documentation of CEQA compliance is required before CDFW can issue the permit. If an ITP is anticipated to be needed for a project, the CEQA document evaluating the project must also support CDFW’s discretionary action of issuing the permit. The CEQA analysis must include all the activities to be covered by the ITP, as well as the description of the impact on the species to be covered by the permit, and mitigation measures to fully mitigate the impact. It is important to note that for CDFW to issue an ITP, the impacts on the covered species need to be minimized and fully mitigated (Fish and Game Code 2081[b][2]). This is a different standard than CEQA, which requires impacts to be mitigated to a less-than-significant level, if feasible.
Potential for Landscape-Level Compensatory Mitigation and Better Conservation Outcomes
As noted by multiple commenters during the October 10 Fish and Game Commission meeting, developers, agricultural entities, and renewable energy (e.g., solar, wind) industries are well versed in the mitigation requirements for western burrowing owl because adherence to the CDFW 2012 Guidelines has been required throughout the range of this species for over a decade. As a result, project proponents seeking to comply with CESA and to avoid take of western burrowing owl are not starting from scratch. As CDFW Director Chuck Bonham stated, “We can hit the ground running because of our familiarity with the species.”
Indeed, several Commissioners reiterated the idea that strengthening partnerships with agricultural entities, building associations, and renewable energy industries would be useful to the net conservation benefit for burrowing owl. There may be ways to prevent the checkerboard type of conservation that has not proven sufficient to reverse the population decline of burrowing owl, but instead, landscape-level habitat protections could help benefit the species.
Currently, burrowing owl is included as a covered species in 35 Habitat Conservation Plans and 22 Natural Community Conservation Plans. Additional regional efforts may be needed for successful burrowing owl conservation, particularly based on research related to distinct geographic regions (Wilkerson and Siegel 2010). The CDFW Petition Evaluation describes western burrowing owl populations as comprising the following seven regions: San Francisco Bay Area, Central Valley, Central-Western California, Southwestern California, Coachella and Imperial Valleys, Northern Desert, and Southern Desert.
Next Steps of the Listing Review
The process timeline for consideration of the proposed listing describes the anticipated steps leading to a listing decision.
A notice of the Commission’s findings will be published in the Notice Register and mailed to interested and affected parties. Within 12 months of the official notice, CDFW will prepare and submit a status review report to the Commission. CDFW may request a 6-month extension of the due date for the status review report.
The Commission will receive CDFW’s status review report at a regularly scheduled Commission meeting and make a final determination on whether the petitioned action is warranted 60 days after receiving the status review report. Adoption of the Commission’s findings will be scheduled for a future meeting. If the Commission finds that the petitioned action is not warranted, the process ends and the species will be removed from the list of candidate species. If the Commission finds that the petitioned action is warranted, the species will be added to the list of threatened and endangered species in Section 670.5 (animals) through a regulation change. The notice of findings will be mailed to interested and affected parties and the regulation change will be filed with the California Office of Administrative Law.
If you have questions or would like further information, please contact Ascent Senior Wildlife Biologist Allison Fuller or Principal and Natural Resources Practice Leader Linda Leeman.
