Governor Newsom and the Legislature Update California’s Fully Protected Species Statutes

Late last month, Governor Newsom, Senate Pro Tem Toni Atkins, and Assembly Speaker Anthony Rendon reached an agreement on California’s 2024 budget that includes resolution of several controversial policy reforms the governor had introduced in May. The budget agreement includes new language establishing a permit to “take” or kill species listed under California’s “fully protected species” statutes.

What Are the Fully Protected Species Statutes?

California’s fully protected species statutes are a set of provisions in the California Fish & Game Code that identify specific animal species for complete protection from incidental “take” -- being killed in the course of otherwise legal activities -- for any reason. The statutes predate the California and Federal Endangered Species Acts (ESAs) and include such species as the Golden Eagle, Sandhill Crane, Southern Sea Otter, and Blunt-nosed Leopard Lizard.

The list of fully protected birds, like the other fully protected lists for mammals and reptiles, is a hodgepodge of species that were listed without any scientific assessment of their population statuses or needs. Most of the bird species were subsequently listed under the state and federal Endangered Species Acts, with only the Golden Eagle and White-tailed Kite not receiving protection under the ESAs. The lack of a scientific basis for Fully Protected listing has led to criticism of the statutes and contributed to the California Department of Fish and Wildlife’s (CDFW’s) unwillingness to enforce them.

These fully protected species statutes may be imperfect, but given decades-long, steep declines of bird populations, Audubon strongly supports maintaining them. We must strengthen bird protections, not weaken them. Simultaneously, Audubon advocates modernizing California environmental laws to make them more effective and reduce unnecessary regulatory burdens.

In recent years, “take” of fully protected species has been allowed in certain circumstances, particularly where a comprehensive Natural Communities Conservation Plan (NCCP) has been completed. However, NCCPs are broad, comprehensive plans that can take years to complete and many developers often skip this step entirely before taking animals on the list of fully protected species.

Once the budget language is adopted into state law, there will be 34 fully protected species, 11 of which are birds, including the California Black Rail, California Clapper Rail, California Condor, California Least Tern, Golden Eagle, Greater Sandhill Crane, Light-footed Clapper Rail, Southern Bald Eagle, Trumpeter Swan, White-tailed Kite, and Yuma Clapper Rail. The new legislation removes the Peregrine Falcon and Brown Pelican from the Fully Protected Species list as their populations are recovering.

What Are the Changes to the Fully Protected Species Statutes?

The new update allows for CDFW to issue a permit for project developers and others to take fully protected species provided CDFW ensures:

1. Take is avoided to the fullest extent possible.
2. Conservation measures are implemented that mitigate for take and will enhance the affected species’ population.
3. There is an adaptive management plan to benefit the species.
4. The project fits within a limited number of categories, such as housing, renewable energy, and water infrastructure, which expressly does not include water conveyance in the Sacramento-San Joaquin Delta.
5. The Brown Pelican and Peregrine Falcon are removed from the fully protected species list.

The legislation further requires CDFW to scientifically assess the population status of each covered species and to report to the Legislature and the public on its findings by July 1, 2025.

Initially, Governor Newsom proposed to repeal all of the fully protected species statutes – covering 34 animals -- and transfer the seven species not already covered under the California Endangered Species Act (CESA) to protection under that legislation. Additionally, the proposal removed the Peregrine Falcon, Brown Pelican, and the now-extinct Thick-tailed Chub from the CESA list altogether.

The Governor’s proposal met fierce resistance from conservation groups including Audubon California and several members of the Legislature, who felt that such a large-scale change to some of California’s oldest environmental laws should be more thoughtfully considered and take place through the policy process, allowing time and engagement by the public and expert advocates. Audubon and others argued that CESA affords less protection than the fully protected species statutes, leaving vulnerable species at risk of further harm.

In subsequent weeks, champions in the state Legislature partnered with conservation groups and the governor’s office to draft a new proposed permitting process instead of repealing the fully protected species statutes altogether.

What Does This Mean for Birds?

Project developers, including state agencies, cities, counties, and private developers, now may apply to CDFW for a permit to take a fully protected species. For the first time, CDFW has a legal hook to regulate take for species such as the Golden Eagle and may require a higher standard of conservation than is currently required under the California Endangered Species Act. Developers will now be far more likely to comply with the law and be held accountable for violations.

The lack of a permit process under the existing Fully Protected Species statutes led to widespread violations of the law that CDFW refused to enforce. CDFW claimed they could not enforce Fully Protected Species statute violations because the activity that resulted in the take was otherwise lawful and there was no way the violators could avoid harm to the Fully Protected Species. In most cases, it was extremely difficult to demonstrate that the developer’s activity had actually resulted in the killing of the specific animals in question.

CDFW’s lack of enforcement has played out in places like Alameda County’s Altamont Pass Wind Resources Area, where wind projects have been killing Golden Eagles on a massive scale for decades without intervention by CDFW. When pressed, CDFW officials said they could not fairly enforce the fully protected species statutes because there was no way to permit the otherwise lawful activity of wind development in the area.

Audubon believes the changes in the fully-protected species statutes improve potential conditions for protected birds by providing applicants with an opportunity to secure permits before “taking” vulnerable species.  The proposed changes allow CDFW to issue permits that require rigorous avoidance and conservation measures, as well as adaptive management plans. Moreover, CDFW can now hold project developers accountable if a covered species is taken without a permit.