The California Endangered Species Act (CESA) states that
“all native species of fishes, amphibians, reptiles, birds, mammals, invertebrates, and plants, and their habitats, threatened with extinction and those experiencing a significant decline which, if not halted, would lead to a threatened or endangered designation, will be protected or preserved.”
The California Department of Fish and Wildlife (CDFW) oversees the CESA, and reviews and analyzes petitions for the listing of species to CESA. CEQA is typically the driver of the CESA, and projects that are subject to CEQA and have the potential to significantly impact listed species (as determined in an Initial Study or Environmental Impact Report) must consult with CDFW to get an Incidental Take Permit. Similarly, if a species is listed to both the Federal Endangered Species Act and CESA, consultation with the US Fish and Wildlife Service and CDFW will be required, and could result in a Consistency Determination.
CESA vs Federal ESA
(source of table: here)
CESA – Section 2081 Incidental Take Permit
Section 2081(b) of the California Fish and Game Code allows CDFW to permit the incidental take of a species listed to CESA. CEQA must be completed prior to receiving an ITP from CDFW, as the permit is considered a discretionary action.
In order to receive an Incidental Take Permit (ITP), the following criteria from the Fish and Game Code must be met:
- The authorized take is incidental to an otherwise lawful activity;
- The impacts of the authorized take are minimized and fully mitigated;
- The measures required to minimize and fully mitigate the impacts of the authorized take:
- are roughly proportional in extent to the impact of the taking on the species,
- maintain the applicant’s objectives to the greatest extent possible, and
- may be successfully implemented by the applicant;
- Adequate funding is provided to implement the required minimization and mitigation measures and to monitor compliance with and the effectiveness of the measures; and
- Issuance of the permit will not jeopardize the continued existence of a CESA-listed species.
The terms and conditions of the permit will be determined by CDFW and must ensure that the issuance criteria in items 1 through 5 above are met.
Section 2080.1 of the California Fish and Game Code describes the Consistency Determination process, which is applicable ONLY to threatened and endangered species that are listed by BOTH the Federal Endangered Species Act and the CESA. Section 2080.1 allows an applicant who has obtained a federal incidental take statement from a federal Section 7 consultation, or a federal Section 10(a)(1)(B) incidental take permit from the Habitat Conservation Planning (HCP) process, to request that the CDFW find the federal documents consistent with CESA.
In order for CDFW to issue a Consistency Determination, the conditions specified in the federal Incidental Take Permit must be consistent with CESA. If CDFW determines that the federal statement/permit is not consistent with CESA, the applicant must apply for a Incidental Take Permit under Section 2081 of the Fish and Game Code.
Common Difficulties for Applicants Seeking Consistency Determinations
CDFW typically recommends 2081(b) Incidental Take Permits over 2080.1 Consistency Determinations for the following reasons:
- Section 7 of the federal Endangered Species Act does not require full mitigation nor financial assurances to carry out required mitigation, while CESA does;
- CDFW cannot add any conditions to a Section 7 Biological Opinion to meet CESA’s full mitigation standard;
- The biological opinion may not describe mitigation measures in enough detail to meet CESA standards;
- The federal Endangered Species Act does not prohibit the take of listed plants, while CESA does;
- If pertinent sections of the federal Endangered Species Act or the regulations that implement it change, Consistency Determinations could become invalid, and CDFW would have to issue 2081(b) incidental take permits for those projects.