April 7, 2014
Kevin Hunting
California Department of Fish and Wildlife
1416 9th Street
Sacramento, CA 95814
RE: IOU and Industry Coalition Comments on Draft Regulations for Fish and Game Code
Sections 3503/3503.5, Nesting Birds
Dear Mr. Hunting,
Introduction and Background
The Investor Owned Utilities (Southern California Edison, San Diego Gas and Electric, Pacific
Gas and Electric Company, and Southern California Gas Company) and the Coalition (California
Farm Bureau Federation, California Forestry Association, and California Building Industry
Association), together referenced as „Industry Representatives‟, appreciate the opportunity to
provide our joint comments in response to the California Department of Fish and Wildlife‟s
request for input on the draft Regulations for Fish and Game Code Sections 3503/3503.5,
October 25, 2013 Draft for Discussion.
During a joint meeting on October 31, 2013 with all of the parties to this letter, the Industry
Representatives agreed to work together to develop consensus on the proposed regulations,
including a proposal to achieve our mutual objectives without the need for a permitting process.
Since this meeting, both the Investor Owned Utilities and the Coalition have collaborated to
reach a common understanding of the interests of our industries and how those interests relate to
the proposed regulations.
We are pleased to submit these joint comments and the attached draft of the proposed regulations
to clarify Fish and Game Code 3503/3503.5. Both the Investor Owned Utilities and Coalition
have the mutual goals of developing regulations that provide a streamlined approach to the
management of nesting birds while continuing the operation of our facilities, conducting our
activities, and remaining competitive within our respective industries.
The Industry Representatives believe CDFW‟s draft regulations seek to provide needed clarity to
the code. The Industry Representatives‟ goal by providing these comments is to ensure that the
regulations provide a sound avenue for compliance and reasonable implementation of Fish and
Game Code Sections 3503/3503.5. The Industry Representatives encourage CDFW to continue
our joint efforts to assist the Investor Owned Utilities in providing safe, reliable, and cost
effective electricity and gas to California residents and the Coalition encourages CDFW to utilize
existing environmental impact review mechanisms so they can continue to provide affordable
food, timber, and housing for Californians.
Through our collaboration we have found common ground in the following components of the
proposed regulation:
Revision of 681.2 Definition of (a) Active Nest and (b) Inactive definition to be combined
under (a) Active Nest written as the following:
Active Nest. An active nest is a structure or site which contains eggs or nestlings. Active
nests do not include structures or sites which previously were, but are currently not
active, nests. Perching sites and screening vegetation are not part of the nest.
The Industry Representatives suggest combining the definition of Active and Inactive nests into
one definition of “Active Nest” given that the term Inactive Nest is not used within the draft
regulations. In addition, our suggested definition of Active Nest would be simplified to be
consistent with the United States Fish and Wildlife Service definition of regulated nests under
the Migratory Bird Treaty Act.
Revision to 681.2 Definition of (b) Take to facilitate the implementation and regulation of
nests to be written as the following:
Take. For purposes of these regulations, take of an active nest means to unnecessarily
destroy any active nest or to unnecessarily cause mortality of eggs or nestlings by direct
means. Take of raptors is as defined in Fish and Game Code §86.
The Industry Representatives request the 681.2 Definition of (b) “Take” be modified to remove
the term “damage” and the reference to nest failure due to abandonment. Activities undertaken
by the various industries may result in “damage” to a nest, but those activities would not
necessarily result in a failure to complete a successful nesting season. The Industry
Representatives suggest focusing regulatory efforts on managing the destruction of active nests
or egg and nestling mortality, which is the Code‟s primary intent. For example, Industry
Representatives may be required to trim nests, as opposed to remove nests, that may affect public
health and safety, such as through the potential of causing a fire or power outage on an electrical
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distribution pole. In some situations, the trimming of the nest would be considered “damage”,
but typically such action does not result in the „take‟ of a nest.
The Industry Representatives request the 681.2 Definition of (b) “Take” be modified to add the
term “unnecessarily” to address activities that may result in take, but are nonetheless critical to
the providing of safe, reliable, and cost effective electricity and gas and to provide affordable
food, timber, and housing for Californians. This term would make the definition consistent with
the Code section, which restricts only “needless destruction”.
We propose removing the “abandonment” component because “abandonment” of a nest is a
difficult concept to identify and regulate. Birds abandon nests for many reasons, including
natural predation of either or both of the parents. The Industry Representatives suggest limiting
the definition of “take” to activities that can be tied to an act that clearly results in the take of an
active nest.
Revision to 681.2 Definitions of (c) Possession to facilitate active management of nests to
reduce nest failures to be written as the following:
Possession. For purposes of these regulations, possession of nests, eggs or nestlings means to
remove and hold in custody a nest or remove eggs or nestlings from a nest with the exception of
situations that warrant the removal or relocation of a nest. Possession does not apply to
relocation efforts made solely for rehabilitation purposes. Temporary possession is permitted of a
nest, eggs, or nestlings for the purpose of relocation or transport to a permitted wildlife rescue
under the direction of a Qualified Biologist (681.2 (f)).
The Industry Representatives request the 681.2 Definition of (c) “Possession” be modified to
allow for the management of problem nests during and outside of the nesting season and
transport birds that have been injured during the operation of our Industry‟s activities.
Revision to 681.2 Definitions to remove the definitions of site, abandoned, permit, and
feasible
The Industry Representatives request that other definitions be removed. A more concise
definition of “Active Nest”, along with the removal of language pertaining to regulating
abandoned nests, would eliminate the need for some of these definitions. The definitions
proposed for removal are shown on the attached redlined version of the draft regulations.
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Revision to 681.2 Definition of (g)(2) to facilitate effective management of species requiring
protection and allowing for take of common and abundant species:
(1)
The take or possession of any active nest, or eggs of the following categories of species,
at any time.
(2) The unnecessary take or possession of any active nest, oreggs, or nestlings of native bird
species not included in 14 CCR §681.2(g)(1), except for the following (e.g., a list of common and
abundant species with no population decline concerns):
The Industry Representatives understand the need for the 681.2 Definition of (g)(2) to allow for
the effective management of species requiring additional protection, but we recommend that it
also allow for the take common and abundant species identified in a list to be created by CDFW.
The Industry Representatives understand additional protection is required of species that have
potential management concerns and support the concept in the regulation‟s development.
However, several common and abundant species create significant challenges for the Industry
Representatives to continue with necessary activities. Allowing the take of these specific
common and abundant species would allow CDFW to focus on the management of species with
population concerns.
Revision to 681.3 Full Exemptions to Prohibitions to add Subsection (e) for projects that
avoid and minimize impacts through a CEQA process using the 681.5 thresholds of
significance:
(e) Where projects may have significant environmental impacts under the CEQA thresholds
in 14 CCR §681.5, but have incorporated feasible mitigations to avoid or minimize impacts
pursuant to CEQA, or
The Industry Representatives request the 681.3 Full Exemptions to Prohibitions add in a
provision that recognizes the use of existing environmental review mechanisms that address
impacts to active nests and eggs. This will avoid wasteful and duplicative regulation and
analysis with the inclusion of (e). For example, the building industry has for years worked with
local government lead agencies in developing mitigations for projects; these mechanisms are
well-established and time-tested. The express requirement of proposed section 681.3(e) that
impacts to active nests and their eggs be evaluated pursuant to CEQA relative to these
regulation‟s “thresholds of significance” levels ensures consistency with the regulations and their
purposes.
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Revision to 681.3(f) to add bird species not protected under the Federal Migratory Bird
Treaty Act to be written as the following:
(8) Other non-native bird species not protected by the MBTA
The Industry Representatives request the species protected under the 3503 be consistent with the
Federal Migratory Bird Treaty Act. Both federal and state regulations should aim at protecting
native species and not introduced non-native species.
Revision to 681.4(f) to ensure that agricultural activities are allowed under the proposed
regulations:
(f) Take is incidental to routine and ongoing agricultural activities.
The Industry Representatives request the inclusion of this provision to allow incidental take for
agricultural activities as defined in Section 681.2(e). California‟s farms and ranches manage their
operations under many challenges, both natural and manmade, and need to have the flexibility to
manage and harvest their crops as dictated by the weather and labor availability. The inclusion of
this provision ensures that all necessary activities undertaken by the farm or ranch are able to
proceed in a timely fashion.
Revision to remove section 681.5 Permits
The Industry Representatives request the permitting requirement be removed from the
Regulation. With the requested edits to the regulation, a permit component is not necessary to
meet the goal of providing protection to populations of nesting birds, while allowing the Industry
Representatives to proceed with the operation of our respective Industries. A few sections have
been modified to reflect that the regulations will no longer have a permitting requirement.
Revision to 681.6 California Environmental Quality Act Thresholds of Significance. To
reinforce thresholds of native nesting bird populations to be written as the following:
(a)
The project has a substantially adverse effect, either directly or through habitat modifications,
on the population of a bird species identified as a candidate, threatened, endangered or species
of special concern by the Department of Fish and Wildlife or Fish and Game Commission.
Page 5 of 6
(b)
(c)
The project has the potential to substantially reduce the habitat, restrict the range or cause the
population of a native bird species to drop below self-sustaining levels.
The project is likely to have long-term adverse consequences for the populations of one or more
native bird species, or
The Industry Representatives request that Section 681.6 California Environmental Quality Act
(a), (b), and (c) be modified to reinforce the thresholds that apply to the populations of native
birds.
Conclusion
The Industry Representatives -- Southern California Edison, San Diego Gas and Electric, Pacific
Gas and Electric Company, Southern California Gas Company, California Farm Bureau
Federation, California Forestry Association, and California Building Industry Association -respectfully request that CDFW consider adopting the above-suggested changes to the draft
regulatory language.
Sincerely,
Signatories
ccs
PG&E
SCE
SDG&E
CBIA
CFA
CFBF
SoCalGas
Page 6 of 6
California Department of Fish and Wildlife
Regulations for Fish and Game Code Sections
3503/3503.5
April 7, 2014 Draft
681
TAKE, POSSESS OR DESTROY ANY BIRD NESTS OR EGGS; OR TAKE BIRDS IN
THE ORDERS FALCONIFORMES, STRIGIFORMES OR ACCIPITRIFORMES:
681.1
Purpose and Scope of Regulations
This article implements §§ 3503 and 3503.5 of the Fish and Game Code. This article
does not affect the Department’s authority pursuant to any other provision of the Fish
and Game Code.
681.2
Definitions
(a) Active Nest. An active nest is a structure or site which contains eggs or nestlings. Active
nests do not include structures or sites which previously were, but are currently not, an active
nest. Perching sites and screening vegetation are not part of the nest.
(b)Take. For purposes of these regulations, take of an active nest means to unnecessarily
destroy any active nest or to unnecessarily cause mortality of eggs or nestlings by direct
means. Take of raptors is as defined in Fish and Game Code §86.
(c) Possession. For purposes of these regulations, possession of nests, eggs or nestlings means
to remove and hold in custody a nest or remove eggs or nestlings from a nest with the
exception of situations that warrant the removal or relocation of a nest. Possession does not
apply to relocation efforts made solely for rehabilitation purposes. Temporary possession is
permitted of a nest, eggs, or nestlings for the purpose of relocation or transport to a permitted
wildlife rescue under the direction of a Qualified Biologist (681.2 (f)).
(d) Raptor. A raptor is a bird within the orders Falconiformes, Strigiformes or
Accipitriformes
(e) Agricultural Activities. For purposes of these regulations, agricultural activities are as
defined at California Civil Code §3482.5(e).
(f) Qualified Biologist. For purposes of these regulations, a qualified biologist is an
individual who certifies to the Department their achievement of the following minimum
standards:
(1)
A completed Bachelor of Science or advanced degree in biology, wildlife
biology, zoology or ecology, which includes upper division coursework in
ornithology, and three years of professional experience, which includes bird
identification, bird nest surveys, habitat assessment, impact analysis and
monitoring of habitat modification or take of birds, nests or eggs, or
(2)
A combination of education and experience equivalent to 14 CCR §681.2(f)(1)
with concurrence by the Department. Such concurrence shall be valid for a
period of five years, or
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California Department of Fish and Wildlife
Regulations for Fish and Game Code Sections
3503/3503.5
April 7, 2014 Draft
(3)
Designation as a Certified Wildlife Biologist by The Wildlife Society
(g) Needless Destruction or Destruction is any of the following, unless otherwise permitted
or authorized by the Department.
(1)
The take or possession of any active nest, or eggs of the following categories of
species, at any time.
(A)
Endangered or Threatened bird species listed under 14 CCR §670.5(a)(5)
or 14 CCR §670.5(b)(5)
(B)
The following California Bird Species of Special Concern (SSC):
1. Fulvous Whistling Duck (Dendrocygna bicolor)
2. Redhead (Aythya americana)
3. Harlequin Duck (Histrionicus histrionicus)
4. Barrow’s Goldeneye (Bucephala islandica)
5. Greater Sage-Grouse (Centrocercus urophasianus)
6. Mount Pinos Sooty Grouse (Dendragapus fuliginosus howardi)
7. Catalina California Quail (Callipepla californica catalinensis)
8. Common Loon (Gavia immer)
9. Fork-tailed Storm-Petrel (Oceanodroma furcata)
10. Ashy Storm-Petrel (Oceanodroma homochroa)
11. Black Storm-Petrel (Oceanodroma melania)
12. American White Pelican (Pelecanus erythrorhynchos)
13. Least Bittern (Ixobrychus exilis)
14. Northern Harrier (Circus cyaneus)
15. Northern Goshawk (Accipiter gentilis)
16. Yellow Rail (Coturnicops noveboracensis)
17. Gull-billed Tern (Gelochelidon nilotica)
18. Black Tern (Chlidonias niger)
19. Black Skimmer (Rynchops niger)
20. Snowy Plover (Charadrius nivosus)
21. Cassin’s Auklet (Ptychoramphus aleuticus)
22. Tufted Puffin (Fratercula cirrhata)
23. Burrowing Owl (Athene cunicularia)
24. Spotted Owl (Strix occidentalis)
25. Long-eared Owl (Asio otus)
26. Short-eared Owl (Asio flammeus)
27. Black Swift (Cypseloides niger)
28. Vaux’s Swift (Chaetura vauxi)
29. Olive-sided Flycatcher (Contopus cooperi)
30. Vermilion Flycatcher (Pyrocephalus rubinus)
31. Loggerhead Shrike (Lanius ludovicianus)
32. Gray Vireo (Vireo vicinior)
33. Catalina Hutton’s Vireo (Vireo huttoni unitti)
34. Purple Martin (Progne subis)
35. Clark’s Marsh Wren (Cistothorus palustris clarkae
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California Department of Fish and Wildlife
Regulations for Fish and Game Code Sections
3503/3503.5
April 7, 2014 Draft
36. San Diego Cactus Wren (Campylorhynchus brunneicapillus
sandiegensis)
37. Bendire’s Thrasher (Toxostoma bendirei)
38. Crissal Thrasher (Toxostoma crissale)
39. Le Conte’s Thrasher (San Joaquin population) (Toxostoma lecontei)
40. Lucy’s Warbler (Oreothlypis luciae)
41. Yellow Warbler (Setophaga petechia)
42. San Francisco Common Yellowthroat (Geothlypis trichas sinuosa)
43. Yellow-breasted Chat (Icteria virens)
44. Summer Tanager (Piranga rubra)
45. San Clemente Spotted Towhee (Pipilo maculatus clementae)
46. Santa Cruz Island Rufous-crowned Sparrow (Aimophila ruficeps
obscura)
47. San Clemente Sage Sparrow (Artemisiospiza belli clementeae)
48. Bryant’s Savannah Sparrow (Passerculus sandwichensis alaudinus)
49. Grasshopper Sparrow (Ammodramus savannarum)
50. Channel Island Song Sparrow (Melospiza melodia graminea, sensu
Patten 2001)
51. Song Sparrow (Modesto population) (Melospiza melodia)
52. Alameda Song Sparrow (Melospiza melodia pusillula)
53. Samuel’s Song Sparrow (Melospiza melodia samuelis)
54. Suisun Song Sparrow (Melospiza melodia maxillaris)
55. Kern Red-winged Blackbird (Agelaius phoeniceus aciculatus)
56. Tricolored Blackbird (Agelaius tricolor)
57. Yellow-headed Blackbird (Xanthocephalus xanthocephalus)
58. Alta California Gnatcatcher (Polioptila californica californica)
(C)
Bird species listed in Fish and Game Code §3511
(D)
Bird species in the orders Falconiformes, Strigiformes or Accipitriformes
(2) The unnecessary take or possession of any active nest, eggs, or nestlings of native
bird species not included in 14 CCR §681.2(g)(1), except for the following (e.g.,
common and abundant species with no population decline concerns) .
681.3 Full Exceptions to Prohibitions. Take or possession of nests, eggs, or raptors does not
constitute a violation of Fish and Game Code §3503 or §3503.5 under the following
circumstances:
(a)
During an emergency, as defined by the California Environmental Quality Act (Public
Resources Code §21000 et seq.) and its implementing regulations, or
(b)
To prevent an emergency that is reasonably foreseeable within 14 calendar days, or
(c)
Where take or possession of nests, eggs or raptors is specifically authorized by the
Department in accordance with the following Fish and Game Code sections:
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Comment [SC1]: CDFW to add list.
California Department of Fish and Wildlife
Regulations for Fish and Game Code Sections
3503/3503.5
April 7, 2014 Draft
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
Section 395 et seq.
Section 1002 and 1002.5.
Section 2081
Section 2086 et seq.
Section 2087
Section 2089 et seq.
Section 2800 et seq.
Section 3511, or
(d)
Where the Department has specified reasonable measures necessary to protect nests or
eggs in accordance with Fish and Game Code §1602(a)(4)(B) and the entity holding a
Lake or Streambed Alteration Agreement conducts activities in accordance with the
Agreement, or
(e)
Where projects may have significant environmental impacts under the CEQA
thresholds in 14 CCR §681.5, but have incorporated feasible mitigations to avoid or
minimize impacts pursuant to CEQA, or
(f)
Take or possession of nests or eggs of the following bird species:
(1) Common raven
(2) Cattle egret
(3) Brown-headed Cowbird
(4) Rock pigeon
(5) European starling
(6) House (English) sparrow
(7) Eurasian collared dove
(8) Other non-native bird species not protected by the MBTA
(g)
Projects approved by the Department under Fish and Game Code §6953(b)
(h)
Take or possession of barred owls
681.4
Limited Exceptions to Prohibitions. Except for species listed under 14 CCR §670.5(a)(5)
or 14 CCR §670.5(b)(5) and Fish and Game Code 3511, take or possession of active
nests, eggs or raptors is not a violation of Fish and Game Code §3503 or §3503.5 when:
(a)
Authorized by the U.S. Fish and Wildlife Service in accordance with the following
Migratory Bird Treaty Act regulations: 50 CFR §§21.21, 21.22, 21.24, 21.25, 21.30 or
21.41.
(b)
A nest has been established on any mobile equipment, utility structures, or materials
used for construction, forestry or agriculture, or
(c)
Take or possession of eggs or nests occurs during maintenance or replacement of
existing:
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California Department of Fish and Wildlife
Regulations for Fish and Game Code Sections
3503/3503.5
April 7, 2014 Draft
(1)
(2)
(3)
(4)
Ornamental landscaping, or
Single or multi-family residential structures, or
Barns, workshops or fences on agricultural properties, or
Existing commercial, industrial, educational buildings, or Utility structures
(d)
Nests or eggs are taken or possessed while maintaining utility substations, electric and
natural gas transmission or distribution lines, poles, towers or related equipment and
structures under the terms of a permit issued by the U.S. Fish and Wildlife Service in
accordance with Migratory Bird Treaty Act regulation 50 CFR 21.27.
(e)
Take or possession of nests or eggs results from the establishment and maintenance of
fuel breaks for fire protection within 100 feet of residential, commercial, industrial or
educational structures.
(f)
Take is incidental to agricultural activities.
681.6 California Environmental Quality Act Thresholds of Significance. Where acting as a
State Lead or Responsible agency, the Department will rely on the following thresholds of
significance for impacts related to take or possession of bird nests, eggs or raptors. A significant
impact on avian biological resources will occur if:
(a)
The project has a substantially adverse effect, either directly or through habitat
modifications, on the population of a bird species identified as a candidate, threatened,
endangered or species of special concern by the Department of Fish and Wildlife or
Fish and Game Commission
(b)
The project has the potential to substantially reduce the habitat, restrict the range or
cause the population of a native bird species to drop below self-sustaining levels.
(c)
The project is likely to have long-term adverse consequences for the population of one
or more native bird species, or
(d)
The project has direct or indirect environmental effects on bird species that are
individually limited but cumulatively considerable.
Note: Authority cited: Sections 3503 and 3503.5 Fish and Game Code; Reference: Sections 713,
1600 et seq, 2000, 3511 Fish and Game Code; and Sections 4629.6(c) and 21000 et seq., Public
Resources Code.
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