October 10, 2001

Re: Raptor Survey Requirements for Timber Harvesting Plan Applicants

Dear Mr. Apger:

We are in receipt of your April 11, 2001, letter concerning the Department of Fish and Game's ("Department") requests for raptor surveys as a condition of Timber Harvesting Plan ("THP") approval. While we do not agree with your views regarding the Department's lack of legal authority to recommend raptor surveys, we write to provide you with new information about the Department's future recommendations for raptor surveys.

Prior to receiving your letter, Department staff began an internal review of each region's approach to providing recommendations and comments on proposed THPS. The goals of our internal review are 1) to encourage the use of consistent procedures within the various regions that review THPS, and 2) to establish a procedure for prioritizing workload in order to focus more attention on forest ecosystem functions. As a result of this review, the Department has distributed to each region a memo that addresses workload priorities and provides procedural guidance to all staff that review THPs. The memo also makes recommendations for raptor surveys.

The Department is a trustee agency with jurisdiction over the conservation, protection and management of fish, wildlife, native plants and habitat necessary for biologically sustainable populations of these species. As a California Environmental Quality Act ("CEQA") trustee agency, the Department must consult with CEQA lead agencies to provide its available biological expertise when reviewing and commenting, on environmental documents and impacts arising from project activities. (See Fish & G. Code § 1802.) To fulfill these duties, the Department's procedure when recommending raptor surveys for proposed THPs will focus first on those impacts for which the CEQA Guidelines prescribe a mandatory finding of significance. For example, if a proposed plan has the potential to reduce the number or restrict the range of an endangered, rare or threatened raptor species, then the Department will recommend raptor surveys as an enforceable condition of plan approval. The same recommendation will be made for Board of Forestry "sensitive" species. However, the Department will no longer recommend surveys for every raptor species that may exist within a plan area. Inclusion of a bird on the Department's list of "Bird Species of Special Concern," while focusing attention on the species and its habitat, will not individually justify a request for a raptor survey. A bird that is included on that list will be evaluated in terms of site conditions, proposed activities and local population numbers and dynamics to determine whether site specific considerations are warranted.

It is the Department's goal to direct additional staff time at addressing biological issues in forest landscapes that may pose more of a biological risk than the loss of individual nests and birds of unlisted species. These risks include habitat simplification, seral stage compression, loss of structural components, spatial modification, and rearrangement of different habitats including migratory corridors and timberland conversion, among others. In addition, we are just beginning to implement a monitoring program that documents the effectiveness of our mitigation efforts and to develop concepts and approaches for comprehensive planning with large landowners.

It is important to note that deviations from the recommended procedures may be warranted. For example, if, after reviewing a proposed THP, it appears that the project will result in significant adverse environmental impacts to common species, a regional manager may approve a Department staff recommendation for raptor surveys for common species. However, prior to recommending surveys for common raptor species, Regional Managers will consider any mitigation measures already incorporated into the proposed THP and may recommend surveys that are likely to result in additional feasible mitigation measures that are not included in the proposed plan.

Finally, regardless of whether the Department recommends raptor surveys as an enforceable condition of THP approval, all applicants are required to comply with the clear statutory language contained in Fish and Game Code section 3503.5. Section 3503.5 provides that " [i]t is unlawful to take, possess, or destroy any birds in the orders Falconiformes or Strigiformes (birds-of-prey) or to take, possess, or destroy the nest or eggs of any such bird except as otherwise provided by this code or any regulation adopted pursuant thereto. " The Department will continue to enforce this provision.

The Department appreciates your interest in this issue and welcomes any additional questions or comments you may have. Should you wish to discuss the matter further, please feel free to contact me at (916) 654-3821.

Sincerely,

/rkh

cc: Robert C. Hight, Director - Department of Fish and Game

Donald B. Koch, North Coast Regional Manager - Department of Fish and Game

Robert W. Floerke, Central Coast Regional Manager - Department of Fish and Game

Andrea Tuttle, Director - Department of Forestry and Fire Protection

Mark S. Rentz, V. P. Environmental and Legal Affairs - California Forestry Association Mike Biaggi, President - Mendocino County Farm Bureau

Craig A. Tolmie, President - California Licensed Foresters Association

Niel E. Fischer, Professional Forester

Nicholas Kent - Association of Consulting Foresters of America, Inc., California Chapter