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49 <br />listed species. “Take” is defined by the state of California as “to hunt, pursue, catch, capture, or <br />kill, or attempt to hunt, pursue, catch, capture or kill” (California Fish and Wildlife Code, <br />Section 86). “Take” is more broadly defined by the federal Endangered Species Act to include <br />“harm” (16 USC, Section 1532(19), 50 CFR, Section 17.3). Furthermore, the CDFW and the <br />USFWS are responding agencies under the California Environmental Quality Act (CEQA). Both <br />agencies review CEQA documents in order to determine the adequacy of their treatment of <br />endangered species issues and to make project-specific recommendations for their conservation. <br />3.2.2 Migratory Birds <br />State and federal laws also protect most birds. The Federal Migratory Bird Treaty Act (16 <br />U.S.C., scc. 703, Supp. I, 1989) prohibits killing, possessing, or trading in migratory birds, <br />except in accordance with regulations prescribed by the Secretary of the Interior. This act <br />encompasses whole birds, parts of birds, and bird nests and eggs. <br />3.2.3 Birds of Prey <br />Birds of prey are also protected in California under provisions of the State Fish and Wildlife <br />Code, Section 3503.5, which states that it is “unlawful to take, possess, or destroy any birds in <br />the order Falconiformes or Strigiformes (birds of prey) or to take, possess, or destroy the nest or <br />eggs of any such bird except as otherwise provided by this code or any regulation adopted <br />pursuant thereto.” Construction disturbance during the breeding season could result in the <br />incidental loss of fertile eggs or nestlings, or otherwise lead to nest abandonment. Disturbance <br />that causes nest abandonment and/or loss of reproductive effort is considered “taking” by the <br />CDFW. <br />3.2.4 The Bald and Golden Eagle Protection Act <br />The Bald Eagle Protection Act of 1940 (16 U.S.C. 668, enacted by 54 Stat. 250) protects bald <br />and golden eagles by prohibiting the taking, possession, and commerce of such birds and <br />establishes civil penalties for violation of this Act. Take of bald and golden eagles is defined as <br />follows: “disturb means to agitate or bother a bald or golden eagle to a degree that causes, or is <br />likely to cause, based on the best scientific information available, (1) injury to an eagle, (2) a <br />decrease in its productivity, by substantially interfering with normal breeding, feeding, or