What Exactly is a Bird Nesting Agreement?
The purpose of a bird nesting agreement is to confirm your rights to enter on, and develop land to protect nesting birds in their natural habitat. Generally, a nesting agreement provides that the landowner will not commence development for a specified period while the birds nest and rear their young and gives the developer the ability to enter and inspect the land immediately prior to the commencement of development to confirm birds are not nesting .
Where a developer needs to commence work on land where birds are nesting, it may require you to provide an access right to confirm birds are nesting and to notify you if they are.
An agreement between a developer and landowner specifying:
● the purposes to which the agreement is to be used
● the parties who may exercise rights under the agreement
● the relationship between the parties
● the name of the land
● the land affected by the agreement.
Sections of a Bird Nesting Agreement
Parties: This will typically reflect the owners of the property that comports with the referenced Natural Resources Code. The signature of the landowner(s) must be notarized and included in a recorded property right deed.
Duration: Cal. Civ. Proc. Code § 872.1. At least ten (10) years, unless the parties agree to a longer term.
Creation: Cal. Civ. Proc. Code §§ 872.1-872.6 and Government Code § 37883. The prescribed bird habitat requirements must be first established as a nuisance and then abated. The owner is entitled to reasonable and adequate compensation for the encumberance. However, the owner did get the benefit of keeping the pest under control. Payments for injurious actions are determined by a jury trial. (See Gov. Code § 529 (b).)
Remedies: Cal. Civ. Proc. Code §§ 872.1-872.6 and Government Code § 37883. The government can force the landowner to remove the nuisance and then recover the cost of removal/habitat restoration. The failure to remove the nuisance could result in a civil action, oral argument, or administrative fine of up to $1,000.
Benefits of Using a Sample Bird Nesting Agreement
Having access to a sample bird nesting agreement is an incredibly useful resource when crafting a legally sound and practical agreement with a bird owner. By using a sample bird nesting agreement as a template, you can avoid common mistakes that are frequently found in poorly drafted bird nesting agreements. Overall, having a sample bird nesting agreement saves all parties time and legal fees that would otherwise be required to amend a bird nesting agreement once it was drafted.
Legal Aspects to Consider in Bird Nesting Agreements
Property owners who have reached an agreement with MSCC 47 to allow black-crowned night herons to use designated strata lots for nesting require, in addition to the agreement with MSCC 47, a nesting agreement with Environment Canada which triggers reporting requirements on the property owner. We have seen these agreements done in several different ways:
- A Memorandum of Understanding ("MOU") which is not a legally binding agreement, but rather a statement of principles and intentions between MSCC 47 and Environment Canada.
- A Reservation Protocol Agreement ("RPA") in which Environment Canada grants MSCC 47 a nesting reservation period in the spring months in favour of MSCC 47 and its owners for the purpose permitting black-crowned night herons to nest on strata lots owned by MSCC 47.
- A Reservation Protocol Agreement and Indemnity Release ("RPAIR") in which MSCC 47 is obliged to indemnify Environment Canada for damage and injury relating to the nesting of black-crowned night herons on strata lots owned by MSCC 47.
Regardless of the form which the bird nesting agreement takes, the content can be similar and similar legal concepts are considered, such as legal compliance, whose property rights and interests are considered, effect on other private property, effect on public lands and compensation for damage or injury. Due to the fact that black-crowned night herons are a protected species, the property owner must have and follow an environmental protection permit which is issued by Environment Canada under the federal Wildlife Act as a matter of law. These issues are particular to private property and the use of the property by a protected species if the owner has no agreement with MSCC 47. In some instances, we have seen situations where the permit issued by Environment Canada to an owner to have protected species on the owner’s land is valid for a short period of time only and the Ministry of Environment has to issue a second permit for an owner to have the black-crowned night herons on their property. Without this process, the property owner could be in breach of the federal Wildlife Act which includes various penalties.
Set up Your Own Bird Nesting Agreement
If none of the sample Bird Nesting Agreements we provide here is the perfect fit for your company or your project, you may want to consider drafting your own. If you do, remember that it is important to ensure that the Bird Nesting Agreement meets all the following federal requirements:
- (1) Identification of the project location and any other specific sites, such as a designated conservation area, as must be shown on Exhibit 1;
- (2) Identification of the project proponent, and assurance that it will conduct the onsite monitoring and management as required by the protocol;
- (3) Provision for "actual harms," a "minimum 17 percent reduction in take , " and a "habitat – restoration ratio … of not less than 1:1" for each building/or worksite;
- (4) Inclusion of specific avoidance and minimization measures as identified in the individual protocol;
- (5) Each tree or shrub to be removed must be mitigated for through replacement.
It is also important that provisions for data collection and monitoring includes protocols for both preconstruction and post-construction monitoring/management.
Finally, each Agreement must comply with all reporting requirements, including annual reports to include monitoring requirements, site condition, biological assessments, and details on the timing of and proposed future work.
Agreements should also include a provision that any future amendments to the Agreement require agency approval. Each agreement should also include a dispute resolution provision.
Common Issues and Solutions
Common challenges occur when there is lack of communication between the property owner and the contractor, such as scheduling issues. If the nesting period of the birds is not noted and if the contractor starts his work at least a day or two into the nesting period, the contractor can face a violation if not a fine by the EPA. This is the same if the property owner does not communicate the nesting period with the contractors. One solution is to create a simple spreadsheet that details the dates of the nesting period, which is readily available with the Notice of Intent or other notice to the contractors so that work does not begin during the nesting period. Communication with all parties is key. If the purpose of the bird nest agreement is only to avoid EPA fines, there is no need for the Agreement to be recorded, and no need for any signatures on the Agreement. Simply having a copy of the Agreement is enough. A properly drafted and executed bird nesting agreement can be a very useful tool for property owners required to abide by CWA Section 404 permitting.
FAQs Related to Bird Nesting Agreements
In this section, we will provide answers to frequently asked questions (FAQs) about bird nesting agreements:
Do I need a separate bird nesting agreement for each birdhouse?
No. Generally, you can have all of your birdhouses in one bird nesting agreement, provided all of the birdhouses are located within the one land parcel that you own.
My birdhouse is located on a matching land parcel that is owned by neighbors. Do we need a unique bird nesting agreement between our two land parcels for the use of the shared birdhouse?
No. Birdhouse agreements are typically set up across land parcels with shared ownership, so long as no single landowner is altered in their ability to maintain their home .
My neighbor’s child has made a lot of other birdhouses nearby – do I need unique bird nesting agreements for all of those birdhouses?
Yes. Bird nesting agreements are usually required for every single birdhouse you own; however, you can author one agreement for all of your birdhouses rather than writing one for each individual birdhouse.
I own non-matching land parcels that are not otherwise contiguous but are located next door to each other. Can I have one bird nesting agreement that is good for all my non-contiguous land parcels?
No. Your land parcels are not contiguous, and you cannot have a single bird nesting agreement with such land parcels. You would need a separate bird nesting agreement for each of those land parcels.