The Birds, Bees, Flowers, and Trees Revisited

For those of you that have projects with regulatory agency permits, it is imperative that you respect the Birds’ Breeding Season. If you think you know when birds’ breeding season starts, think again! First of all, there are both nesting and breeding seasons. These critical birds’ reproduction seasons actually depend on the species and climate. For example, according to Appendix I of CDFW’s Conservation Measures for Biological Resources That May Be Affected by Program Level Actions, the nesting season for Burrowing Owls is February 1^st through August 31^st. The breeding season for Raptors is September 16^th through December 31^st. The breeding season for Bald Eagles is December 30^th through July 1^st. Further, because climate is not static and is constantly changing the nesting and breeding seasons may very well start early. In particular, this year, the spring season started roughly six weeks early. This shift in the bird’s reproduction activities can dramatically affect development, spring protocol surveys and compliance with a project’s state and federal entitlements, e.g., State of California Streambed Alteration Agreement Conditions of Approval, United States Fish & Wildlife Service Incidental Take Permit, Army Corp of Engineers Section 404 Permit. These are just a few examples of the entitlements you may have with stringent Conditions of Approval affecting your development activities. Conversely, if you are in the process of obtaining regulatory agency permits it is important to know and understand what types proposed, and often onerous, of conditions of approval you may encounter during the negotiation for issuance of the permits.

Consequently, your project may have multiple nesting and breeding seasons that must be factored into your land development and construction schedules, depending on the known species and their habitat existing onsite, the known habits of migratory species passing through, and your project’s specific Regulatory Agency Permit Conditions of Approval. Fines can be costly for non-compliance and may result in Notices of Violations of your Conditions of Approval.

In addition to the birds that reside within each of the 50 States, both Federal and State Regulatory Agencies have jurisdiction over migratory birds and administer the “Rules and Regs” of the Migratory Bird Treaty Act of 1918 (MBTA) for the migrating birds’ protection. 

The original statute (MBTA) implemented the Convention between the United States and Great Britain (for Canada) that took place in 1916 to protect migrating birds between the U.S. and Canada.  Amendments to the MBTA have implemented additional treaties between the U.S. and Mexico, the U.S. and Japan, and the U.S. and the Soviet Union (Now Russia) ² to protect migrating birds between the U.S. and these countries.

According to the U.S. Fish and Wildlife Service Migratory Bird Program, “The program’s units – Division of Migratory Bird Management, Division of Bird Habitat Conservation, Regional Migratory Bird Programs and Office of Aviation Management – work together and with other partners to assess, manage and conserve over 800 native migratory bird species and their habitats.”¹ 

Here are the Laws the Program Administers:

• Migratory Bird Treaty Act of 1981 (16 U.S.C. 703 et seq.)
• Fish and Wildlife Conservation Act as amended (16 U.S.C 2901-2911)
• Bald and Golden Eagle Protection Act of 1940 (16 U.S.C 668-668d)
• North American Wetlands Conservation Act of 1989, as amended (16 U.S.C. 4401-4412)
• Neotropical Migratory bird Conservation Improvement Act of 2000 as amended (16 U.S.C 6101)
• Migratory Bird Hunting and Conservation Stamp Act of 1934 as amended (16 U.S.C 718-718j)
• Junior Duck Stamp Conservation and Design Program Act of 1994, (16 U.S.C. 719)

The penalties are stiff for violating the MBTA. The taking of migratory game birds by the aid of bait if the person “knows or reasonably should have known” that the area is baited; placing or directing the placement of bait on or adjacent to an area for the purpose of taking or attempting to take migratory game birds are: $100,000 for individuals and $200,000 for organizations, imprisonment for not more than one year, or both.  The fines for misdemeanor convictions under the MBTA are up to $15,000.  The individual States also have regulations, and penalties for violating their “regs” as well.

So, in managing your real estate assets during this year’s bird nesting and breeding seasons, be mindful of what birds exist onsite and may be migrating through your project, and last but not least, all of the State and Federal Rules and Regs concerning your development.  Simply put, “it is illegal to “Take” migratory birds, endangered and protected species, their nests, feathers or nests.”³ If you are unfamiliar with how the Rules and Regs affect your development and/or need assistance in understanding your entitlements and regulatory agency permit conditions, contact Toby Waxman, Entitlement Strategies Group Inc., www.entitlementstrategiesgroup.com, 818 425-5099, email: tw@entitlementstrategiesgroup.com, to be added to the Entitlement Strategies Group Inc. monthly newsletter EyesOn...Rules & Regulations mailing list.

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^{Reference:  United States Fish and Wildlife Service Migratory Bird Program Conserving America’s Birds, Last Updated December 9,2010, Migratory Bird Management Fact Sheet, Migratory Bird Program,  Program Overview
Reference:  Digest of Federal Resource Laws of Interest to the U.S. Fish and Wildlife Service, Migratory Bird Act of 1918
Reference: http://www.fws.gov/pacific/migratorybirds/mbta.htm}