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California Fish and Game (12-CA-a)

California protects certain species and habitat beyond the protections afforded under federal law. In order to determine whether the species or habitat is protected under California law, one should refer to the California Endangered Species Act (CESA), the California Native Plant Protection Act, the California Environmental Quality Act, the California Natural Community Conservation Plan Act, the California Desert Native Plants Act, the California Lake and Streambed Alteration Program, and the California Marine Life Protection Act.

Early consultation with the California Department of Fish & Wildlife (CDFW) is recommended in order to ensure the project will not compromise a state protected species.

This flow chart represents the CDFw incidental take permit process for California endangered or threatened species, which is governed by CESA. CESA protects species beyond the protections afforded under the federal Endangered Species Act. In some cases, species listed as endangered or threatened under CESA are not listed under the ESA and vice versa. Therefore, the developer should check both lists to determine which statutes must be complied with and for which species. See the CESA species list for a list of endangered and threatened species in California.

Section 2080 of the Fish and Game Code prohibits the "take" of any species that the commission determines to be endangered or threatened. According to Section 86 of the Fish and Game Code, “take” means to "hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill."

CESA allows for take incidental to otherwise lawful development projects. See Section 2081 of the Fish and Game Code. CESA emphasizes early consultation to avoid potential impacts to rare, endangered, and threatened species and to develop appropriate mitigation planning to offset project caused losses of listed species populations and their essential habitats.

Regulations governing the implementation of CESA can be found at 14 CCR 783 et seq.

Fish and Game Process

12-CA-a.1 - Did the Biological Assessment Identify Listed Species?

A biological assessment is typically completed by an independent contractor or the Fish and Wildlife Service (USFWS). Depending on the terms of the biological assessment, the study may also take into consideration state protected species. Otherwise, a separate study may be conducted for state protected species. The developer should engage with CDFW to ensure the appropriate inquiry into state protected species has been completed.

ESA Section 7 Consultation Process:

12-CA-a.2 - Proceed with Project; No Permit Needed

If the project activities will not impact biological resources, then no permit is required from USFWS or CDFW.

12-CA-a.3 – Hold Pre-filing Meetings (Optional)

A pre-filing meeting is not required, but encouraged in order to ensure all appropriate application materials and avenues of action have been considered. See 14 CCR 783.2(b).

In the event a "take" is unavoidable given the nature of the project, the developer should consider obtaining an incidental take permit. The incidental take permit process for federal protected species should be pursued through USFWS. Whereas, an incidental take permit for a California protected species should be pursued through CDFW.

For Federal species, see ESA Section 10 Incidental Take Permit:

12-CA-a.4 - Has USFWS Issued an Incidental Take Permit?

CDFW is willing to consider federal incidental take permits awarded under the Section 10 Take Permit process. If USFWS has already awarded an incidental take permit for the project site, the CDFW will review the permit to see if the permit is consistent with California's protections. See Section 2080.1 of the Fish and Game Code.

For more information regarding the ESA Section 10 Process, see ESA Section 10 Incidental Take Permit:

12-CA-a.5 – Conduct CESA Consistency Determination

The applicant must submit the federal incidental take statement or permit to the Director of CDFW for a determination as to whether the federal document is "consistent" with CESA. Receipt of the application by the Director starts a 30-day clock for processing the Consistency Determination. See Section 2080.1(c) of the Fish and Game Code.

This exception only applies to species protected under both federal and California law. The consistency review cannot be used for species listed exclusively by California.

CDFW recommends against a consistency determination because:

  • CDFW cannot add any conditions to the federal incidental take permit;
  • CDFW often finds USFWS biological opinions do not contain enough details in describing mitigation measures;
  • The federal standard for including plants is jeopardy; and
  • If there is a change in the federal law, it could invalidate the consistency determination.

See the California Department of Fish and Wildlife Consistency Determination Webpage.

12-CA-a.6 to 12-CA-a.7 – Is the Permit Consistent with CESA and does it include CESA-Listed Species? Consistency Determination

If the project will affect a species protected under California law that is not addressed in the federal take permit, or if the federal take permit is inconsistent with CESA, then the developer must submit a California incidental take application. See Section 2080.1(c) of the Fish and Game Code. If the federal take permit addresses all of the species affected by the project, and if the federal take permit is consistent with CESA, the CDFW will issue a Consistency Determination.

12-CA-a.8 - Incidental Take Permit Application

The application for the incidental take permit must include:

  • The developer’s contact information;
  • Tthe common and scientific names of species to be covered by the permit;
  • A complete description of the project;
  • The location of the project;
  • An analysis of the risk to the species
  • Proposed mitigation measures;
  • A proposed monitoring plan;
  • A description of funding sources for mitigation; and
  • Specific certification language.

See 14 CCR 783.2(a).

12-CA-a.9 to 12-CA-a.10 – Review Application Materials for Completeness; Is the Application Complete?

The CDFW completes an initial review of the application within 30 days of its receipt. The initial review is not a determination on the merits of the application; rather it is a determination of the sufficiency of the application. If the application contains all of the required elements of section 14 CCR 783.2 and 14 CCR 783.3, the CDFW notifies the developer and commences the review in accordance with 14 CCR 783.5(c) or (d), as appropriate. If the application does not contain all of the aforementioned elements the CDFW returns the application to the developer with a description of the deficiency. The developer then has 30 days to correct the deficiency and re-submit the application. See 14 CCR 783.5(b).

12-CA-a.11 – Complete CEQA Process

The CDFW will generally be a “responsible agency” for purposes of CEQA compliance when another agency is the “lead agency” for approving the project or activity for which the incidental take permit is sought. If the CDFW is a responsible agency, it must review any CEQA documents prepared by the lead agency and decide whether to issue the incidental take permit in accordance with CEQA and CEQA guidelines. See 14 CCR 15096 for more information on the CDFW’s responsibilities as a responsible agency. The developer should include the following in its application for an incidental take permit where the CDFW is a responsible agency:

  • Lead agency contact information;
  • The type of CEQA document prepared; and
  • A notice of preparation, notice of determination, or draft or final environmental document (at the option of the developer).

See 14 CCR 783.3(a); 14 CCR 783.5(c).

The CDFW will generally be a “lead agency” for purposes of CEQA compliance when issuance of the incidental take permit is the only public agency action subject to CEQA that will be taken with regard to the project or activity for which the incidental take permit is sought. If the CDFW is the lead agency, the developer must submit an environmental analysis with the incidental take permit application. The analysis must be sufficient to allow the CDFW to determine if the project or activity will have adverse environmental effects in addition to the effects of the taking. The CDFW must then complete the CEQA process. See 14 CCR 783.3(b); 14 CCR 783.5(d).

State Environmental Review Process:

12-CA-a.12 to 12-CA-a.13 - Are Incidental Take Permit Review Standards Met?; Consider Potential Jeopardy, Mitigation Measures, and Available Funds for Compliance Monitoring

The CDFW may only issue a permit if the following issuance criteria are met:

  • The take authorized by the permit will be incidental to an otherwise lawful activity;
  • The developer will minimize and fully mitigate the impacts of the take authorized under the permit. The measures required to meet this obligation shall be roughly proportional in extent to the impact of the authorized taking on the species. Where various measures are available to meet this obligation, the measures required shall maintain the developer's objectives to the greatest extent possible. All required measures shall be capable of successful implementation. For purposes of this section only, impacts of taking include all impacts on the species that result from any act that would cause the proposed taking;
  • The permit will be consistent with any regulations adopted pursuant to Fish and Game Code sections 2112 and 2114;
  • The developer has ensured adequate funding to implement the measures required under the permit to minimize and fully mitigate the impacts of the taking, and to monitor compliance with, and the effectiveness of, the measures.

See 14 CCR 783.4(a).

In addition, no permit may be issued if it will jeopardize the continued existence of a listed species. See 14 CCR 783.4(b).

12-CA-a.14 - Incidental Take Permit

If the CDFW decides to approve the incidental take permit, it makes findings substantiating compliance with 14 CCR 783.4 (and findings required by 14 CCR 150969(h) if the CDFW is not the lead agency, or section 14 CCFR 783.5(d)(5) if the CDFW is the lead agency). Once the findings are complete, the CDFW may issue the incidental take permit. See 14 CCR 783.5(c)(2) and 14 CCR 783.5(d)(5)(B).

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