California Native Plant Society

Conservation Program

How You Can Use The CALIFORNIA ENDANGERED SPECIES ACT to Protect Rare Species in Your Area

On September 28, 1997, Governor Pete Wilson signed Senate Bill 879 into California law. The bill made sweeping changes to the California Endangered Species Act (CESA). Many people are still not aware of the strict new protections CESA now requires for California-listed species.

CESA prohibits the "take" (killing or harming) of California-listed species in most circumstances. SB 879 gave the California Department of Fish and Game (Department) the authority to issue "incidental take permits" which allow take of listed species under limited conditions. SB 879 defined new standards and procedures for the Department to use in approving incidental take permit applications and provided new tools for activists and agencies to use in their efforts to protect biological diversity in California.


Key Elements of the CESA

Applicants must meet several standards before the Department can issue an incidental take permit.


Impacts from Taking Listed Species must be "Minimized and Fully Mitigated".

This standard (CESA Sec. 2081(b)) is significantly stronger than that in the California Environmental Quality Act (CEQA). Full mitigation means that no net impacts to listed species may occur under CESA. CEQA merely requires agencies to "avoid or minimize environmental damage where feasible" (CEQA Guidelines § 15021 (a), emphasis added).

CESA defines "impacts" that must be minimized and fully mitigated as "all impacts on the species that result from any act that would cause the proposed taking" (CESA Sec. 2081(b)(2)). This broad definition can be read to include indirect and cumulative impacts, as well as impacts to habitat.

Sections 2052.1 and 2081 (b) of CESA requires that mitigation measures be "roughly proportional" to the impacts being caused by a project. "Roughly proportional" has not yet been defined in law, but may be interpreted as more support for the "full mitigation" requirement.


No Exceptions to Full Mitigation Requirement - "Overriding Considerations" are not Allowed

Unlike CEQA, CESA does not allow the Department or any other public agency to use a statement of override to permit unavoidable and/or unmitigated impacts to listed species. Under CEQA, any lead agency may allow significant environmental impacts to occur if it finds that the "benefits" of a project outweigh impacts (CEQA Guidelines § 15093). Such benefits may include creation of jobs or economic growth (CEQA Guidelines 15091(a)(3)).


Applicant must Fund both Implementation and Monitoring of Mitigation

CESA Sec. 2081 (b)(4) requires that the applicant "ensure adequate funding to implement the [mitigation] measures required [under the permit]..., and for monitoring compliance with, and effectiveness of, those measures." Applicants must thus fund both implementation of required mitigation measures and effectiveness monitoring for such mitigation. The effectiveness monitoring requirement will allow the Department - and the public - to ensure that mitigation is functioning properly and that CESA’s full mitigation requirement is met.


Jeopardy Standard

Section 2081 (c) prohibits issuance of any incidental take permit if "issuance of the permit would jeopardize the continued existence of the species." The Department is required to find that projects will not put species at risk of extinction based on "best scientific and other information that is reasonably available" regarding "(1) known population trends; (2) known threats to the species; and (3) reasonably foreseeable impacts on the species from other related projects and activities."


California Environmental Quality Act (CEQA) Review

All incidental take permits go through a CEQA public review process prior to approval, either as part of a larger CEQA review process undertaken by a lead agency other than the Department, or occasionally though a process that is "functionally equivalent" to the CEQA process if the Department is acting as the lead agency. Either way, interested parties can use the CEQA process to ensure that applicants, lead agencies, and the Department meet the CESA standards, including full mitigation, scientifically based jeopardy findings, adequate monitoring, and funding.

NOTE: Any project involving an incidental take permit requires an Environmental Impact Report (EIR) (rather than a simple or mitigated negative declaration) under current regulation. Section 15065 (a) of the CEQA Guidelines requires that any project which "has the potential to substantially degrade the quality of the environment, substantially reduce the habitat of a fish and wildlife species, cause a fish or wildlife population to drop below self-sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of an endangered, rare or threatened species " may have a significant effect on the environment and thereby requires the preparation of an EIR. The California Building Industry Association has filed a petition with the California Resources Agency to repeal this provision of the Guidelines. The Agency has yet to act on this petition.


Procedures for Species that are Both State and Federally Listed

Section 10 of the Federal Endangered Species Act (FESA) allows the U.S. Fish and Wildlife Service to issue take permits for Federally listed species. CESA’s requirements for incidental take permits are slightly stronger than FESA’s. If a landowner obtains a Federal take permit for a species that is also state listed, CESA does not require an additional state permit, but CESA Sec. 2080.1 (c) does require the Department to review the terms and conditions of the permit to ensure that they meets CESA’s requirements.


Plants are Covered under CESA!

There has been some confusion in State policy regarding whether state-listed plants are covered under CESA. CNPS legal analysts have concluded that state listed threatened and endangered plants are covered under CESA. Thus, IMPACTS TO STATE LISTED THREATENED AND ENDANGERED PLANTS MUST BE MINIMIZED AND FULLY MITIGATED under CESA, just as impacts to animals are. State listed "rare" plants may not be covered under CESA, however.


Agricultural Lands

Another 1997 bill, SB 231, made substantial changes to the way CESA treats state-listed species on agricultural lands. Among other provisions, the bill encourages farmers and ranchers to work with the Department to set up programs to conserve rare species on their lands. Unfortunately, the bill also allows unlimited "accidental" take of listed species during "routine and ongoing" agricultural activities. Neither "accidental" take or "routine and ongoing" have been defined.


WHAT YOU CAN DO:

If a project impacts listed species in your area, call the lead agency for the project and your local Department of Fish and Game office and ask them how they plan to implement the full mitigation, jeopardy, CEQA, and other requirements of CESA. Then review the project plans and CEQA documents for consistency with CESA requirements and provide comments both to the lead agency and the Department. You can also contact CNPS for additional materials and tools.

 

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