Western Burrowing Owl’s CESA Candidacy Triggers New Compliance Obligations for Developers

On October 10, 2024, the California Fish and Game Commission (Commission) unanimously voted to designate the western burrowing owl (Athene cunicularia hypugaea) as a candidate species under the California Endangered Species Act (CESA), with coverage extending statewide. As a result, the species is now subject to the full protections of CESA during the California Department of Fish and Wildlife’s (CDFW) 12-month status review period. This review will culminate in a peer–reviewed report assessing whether the species should be formally listed as threatened or endangered. The report will be made publicly available on CDFW’s website at least 30 days before the Commission considers action on the petition.

EXISTING PROTECTIONS – NOW ELEVATED

Even prior to its candidacy, the burrowing owl was recognized as a California Species of Special Concern and a federal Bird of Conservation Concern. The species also benefits from protections under the federal Migratory Bird Treaty Act and California Fish and Game Code §§ 3503, 3503.5, and 3513, which prohibit the take or destruction of nests and eggs. However, CESA candidacy elevates these protections significantly.

Under CESA, “take” — defined as hunt, pursue, catch, capture, or kill, or attempt to do so — is strictly prohibited without an Incidental Take Permit (ITP) or other express authorization from CDFW. Although habitat degradation or modification is not explicitly included in CESA’s “take” definition, CDFW has interpreted take to include the “killing of a member of a species which is the proximate result of habitat modification.”

The applicability of CESA protections creates new and immediate legal exposure for projects that could impact the species or its habitat, particularly in regions where burrowing owl populations are known or expected to occur.

REEVALUATING PROJECT MITIGATIONS

Developers — including those with already-entitled projects supported by certified or adopted California Environmental Quality Act (CEQA) documents — should reevaluate their mitigation strategies in light of the owl’s CESA status. While CEQA-based mitigation may have previously satisfied entitlement requirements, such measures do not, standing alone, provide legal protection from CESA liability during the candidate review period.

CEQA-Approved Projects Still Face CESA Exposure

CEQA compliance does not exempt a project from the CESA prohibition on unauthorized take. This is especially critical for entitled projects with approved mitigation measures for burrowing owl impacts. Unless those measures entirely eliminate the potential for take — an extremely high standard — the project may still require take authorization through a Section 2081 ITP or under a broader species conservation framework such as a Habitat Conservation Plan (HCP) or Natural Community Conservation Plan (NCCP). The ITP process can significantly increase project costs and timelines.

Recommended Developer Action: Evaluate whether your project is covered under an HCP, NCCP, or other permitting program that includes burrowing owl protections and take authorizations. If not, early engagement with CDFW to pursue an ITP may be necessary.

Shifting Regulatory Guidelines May Create Future Conflicts

Currently, CDFW’s 2012 Staff Report on Burrowing Owl Mitigation (the 2012 Guidelines) forms the basis for evaluating project impacts and mitigation under CEQA. However, the pending CESA listing petition recommends substantial updates to these guidelines. In addition, CDFW has already indicated that, in some cases, previously accepted practices — such as passive relocation or certain habitat modifications — may no longer be permissible without an ITP.

If adopted, revised guidelines could:

• Redefine CEQA mitigation standards.
• Conflict with approved mitigation protocols under existing HCPs, NCCPs, lake and streambed alteration agreements (LSAAs), or other permitting frameworks.
• Introduce uncertainty and inconsistency across projects and jurisdictions.

Why It Matters: Developers and local agencies relying on previously approved CEQA or regional plan mitigations may find these measures insufficient under new guidance — either during the review period or upon formal listing.

CEQA and CESA Mitigation Thresholds Are Not Legally Equivalent

It is critical to understand that CEQA’s mitigation threshold of “less than significant” is not interchangeable with CESA’s “fully mitigate” and maintain over time threshold. CDFW has authority to impose additional or different mitigation measures under CESA, even for projects that have completed CEQA review.

These may include:

• Additional avoidance and minimization measures.
• Compensatory mitigation, such as:
  • • Purchasing mitigation bank credits
    • Acquiring and preserving offsite burrowing owl habitat
    • Establishing conservation easements

Practical Implications: These additional requirements can significantly increase project costs and timelines. Delays may occur if suitable mitigation credits or land are not readily available.

Regulatory Uncertainty During the Review Period

While a final listing recommendation is not expected before October 25, 2025, regulatory uncertainty will persist throughout the status review period. Although CDFW may continue to largely apply the 2012 Guidelines in the interim, changes could also be proposed. Developers should plan for evolving regulatory expectations and build flexibility into project timelines and budgets.

CESA Candidacy Does Not Automatically Trigger Supplemental CEQA Review

Importantly, a change in a species’ status under CESA does not, by itself, require subsequent or supplemental CEQA review. Projects with certified or adopted CEQA documents generally remain valid unless additional discretionary approvals are required, or project modifications are proposed. Nonetheless, lead agencies may consider addressing the burrowing owl’s candidacy in future CEQA documents as a matter of legal prudence and risk management.

KEY TAKEAWAYS FOR DEVELOPERS

• CEQA compliance does not automatically equate to CESA compliance. Even if your project is fully entitled, it may still require additional permits under CESA.
• Programmatic Coverage. Double-check whether your project falls under existing take authorization like an HCP, NCCP, or other similar agreements. If your project is covered, it can save time and effort.
• Prepare for ITPs. If take is likely and no existing coverage applies, initiate discussions with CDFW early.
• Cost Considerations. If compensatory mitigation is required (such as restoring habitat or funding conservation efforts), be prepared for the possibility of significant cost increases.
• Stay Informed. Monitor CDFW’s status review process and public review period. Stay informed on any updates to the 2012 Guidelines or changes to CDFW’s enforcement posture.