Birds, Trees, and Bees – Oh My! Practical Guidance for Addressing Candidate Species in CEQA Analysis

Several high-profile species — including the burrowing owl, Crotch’s bumble bee, western Joshua tree, western spadefoot toad, and the monarch butterfly — have recently been elevated to candidate status under either the California Endangered Species Act (CESA) or proposed for listing under the federal Endangered Species Act (FESA). This growing list of species carry significant implications for project proponents navigating environmental review under the California Environmental Quality Act (CEQA).

UNDERSTANDING THE LEGAL LANDSCAPE

Under CESA, candidate species receive the same legal protections as listed species, meaning any potential “take” (defined as hunting, pursuing, catching, capturing, or killing) is prohibited without an Incidental Take Permit (ITP) or other express authorization from the California Department of Fish and Wildlife (CDFW). Conversely, species proposed for listing under FESA are not afforded legal protections until and unless formally listed.

Nonetheless, CEQA requires evaluation and mitigation of project impacts to all special status species, including candidates and those proposed for listing. This is especially relevant for projects with a federal nexus (e.g., those involving federal funding, permits, or approvals), as federal agencies must ensure their actions do not jeopardize species proposed for listing under FESA. As a result, agencies frequently assess impacts on such species and may incorporate proactive mitigation measures.

CEQA IMPLICATIONS: WHY EARLY REVIEW MATTERS

For project proponents, identifying special-status species during early due diligence is critical under CEQA. Early recognition of such species can help avoid costly delays during biological studies, agency consultation, and permitting.

Biological technical reports should be prepared with an understanding of the evolving regulatory landscape and incorporate agency-approved survey methods and mitigation protocols. These reports have a direct influence on mitigation cost, scope, and timing.

CEQA documents should anticipate the potential for future listings under CESA or FESA. Failure to adequately assess biological resources may lead to unauthorized take, trigger regulatory enforcement or litigation, or necessitate supplemental CEQA review, resulting in further project delays and increased costs.

Accordingly, mitigation measures proposed in CEQA documents should reflect current species — specific requirements and be grounded in applicable regulatory guidance. It is also prudent to include language confirming that additional permits (such as ITPs) will be obtained if necessary, and that mitigation will be implemented in consultation with CDFW or the U.S. Fish and Wildlife Service (USFWS).

CANDIDATE SPECIES SNAPSHOT

• As detailed in our previous legal alerts, the western burrowing owl (Athene cunicularia hypugaea) was designated a CESA candidate in October 2024 and remains under review. Full take protections apply during this candidacy period. CDFW’s 2012 Staff Report on Burrowing Owl Mitigation continues to largely guide burrowing owl avoidance, minimization and mitigation approaches. However, CDFW has, in some cases, asserted that ITPs may now be necessary for certain relocation or habitat modification activities.
• Crotch’s bumble bee (Bombus crotchii) was initially declared a candidate species in 2019. Following litigation and reinstatement as a CESA candidate species in 2022, CDFW issued new survey protocols for candidate bumble bees in 2023. These require site-specific surveys in areas with suitable habitat and recommend biological monitoring where bees are not observed but habitat remains viable. If bees are detected, project proponents must either avoid impacts entirely or obtain an ITP.
• The western Joshua tree (Yucca brevifolia) is currently protected under the Western Joshua Tree Conservation Act (Act), following a deadlocked vote by the California Fish and Game Commission (Commission) in 2022 as to whether to formally list the species under CESA. As detailed in our previous alerts, the Act prohibits take without express authorization and mitigation, and requires CDFW to draft and implement a conservation plan. CDFW first released a draft Conservation Plan in December 2024, which remains under agency and public review. Final adoption is expected by June 30, 2025, though it is possible that it may trail until August. In the meantime, CEQA mitigation should accommodate fee payments, relocation plans, and/or other CDFW-approved measures.
• The western spadefoot toad (Spea hammondii) was proposed for listing under FESA in December 2023. While the public comment period closed in February 2024, a final listing decision has not yet been issued. The species remains a candidate, and although no critical habitat has been proposed, it is already recognized as a California Species of Special Concern and must be evaluated under CEQA. While USFWS has not released species-specific guidance, best management practices developed for military installations by the Department of Defense offer practical frameworks for surveys, monitoring, and mitigation.
• The monarch butterfly (Danaus plexippus) was proposed for listing as a threatened species under FESA in December 2024, as discussed in our prior legal alert. The proposed rule includes critical habitat designations across seven coastal California counties, as well as a 4(d) rule exempting certain conservation activities from take prohibitions. While the original public comment period closed in March 2025, USFWS subsequently reopened it, and comments last closed on May 19, 2025. A 12-month status is now underway. Although the monarch is not yet listed, CEQA documents — especially for projects with a federal nexus — should evaluate potential impacts and incorporate avoidance or mitigation measures where appropriate.

RECOMMENDATIONS FOR PROJECT PROPONENTS

To reduce permitting risk and ensure CEQA defensibility, project proponents should:

• Conduct early biological due diligence, particularly where candidate or proposed species habitat may be present.
• Prepare clear, defensible biological technical reports using current survey protocols and best available data.
• Incorporate mitigation strategies into CEQA documents that reflect current agency guidance — even while CESA or FESA listing decisions are pending.
• Include mitigation language in CEQA documents anticipating the need for future permits and consultation with resource agencies if listings become final.

FINAL THOUGHTS

With multiple listing decisions anticipated over the next one to two years, early planning and adaptive CEQA strategies are essential. By proactively addressing the potential presence of candidate and proposed species, project proponents can reduce regulatory and legal risk while keeping entitlement timelines on track.