Introduction to CESA Incidental Take Permits and Introduction to CESA Incidental Take Permits and Consistency DeterminationsConsistency Determinations

Developed byJennifer Deleon, Staff Environmental Scientist

CESA Permitting and Policy CoordinatorCalifornia Department of Fish and Game

2009

Fish and Game Code Sections Fish and Game Code Sections Authorizing Take of Listed Authorizing Take of Listed

SpeciesSpecies 2080.1 Consistency Determinations2080.1 Consistency Determinations 2081(a) Research or Management MOU2081(a) Research or Management MOU 2081(b) Incidental Take Permit2081(b) Incidental Take Permit 2084 Taking of Candidate Species2084 Taking of Candidate Species 2086 Voluntary Local Ag Program2086 Voluntary Local Ag Program 2087 Routine and Ongoing Ag Activity “Accidental 2087 Routine and Ongoing Ag Activity “Accidental

Take” (set to sunset Jan. 2009)Take” (set to sunset Jan. 2009) 2090 State Agency Consultation (Sunsetted 1999)2090 State Agency Consultation (Sunsetted 1999) 2112 Recovery Strategy2112 Recovery Strategy 2835 Natural Community Conservation Plans2835 Natural Community Conservation Plans

CESA Basics Part 1: Incidental Take CESA Basics Part 1: Incidental Take PermitsPermits

Intro to Incidental Take PermitsIntro to Incidental Take Permits((What is it and how do you get one?)What is it and how do you get one?)

What is it, what’s in it – a.k.a. what does this What is it, what’s in it – a.k.a. what does this piece of paper mean?piece of paper mean?

Applications – process and timelinesApplications – process and timelines

Developing and Issuing the Permit – Statutory and Developing and Issuing the Permit – Statutory and regulatory standardsregulatory standards

Incidental Take Permits, Incidental Take Permits, continuedcontinued

What is an incidental take permit?What is an incidental take permit? Enacted in 1998 to provide a specific permitting Enacted in 1998 to provide a specific permitting

tool for incidental take of CESA listed species.tool for incidental take of CESA listed species. It is a permit that allows an exception to the take It is a permit that allows an exception to the take

prohibition in CESA if the Permittee implements prohibition in CESA if the Permittee implements certain actions specified by DFG that meet the certain actions specified by DFG that meet the standards for issuance.standards for issuance.

What does the incidental take permit What does the incidental take permit document?document? The Permit contains all the conditions that the The Permit contains all the conditions that the

Permittee must implement in order to be exempt Permittee must implement in order to be exempt from the take prohibition, and provides an from the take prohibition, and provides an explanation of the evidence that DFG considered in explanation of the evidence that DFG considered in reaching its conclusions about issuing the reaching its conclusions about issuing the incidental take permit. incidental take permit.

Incidental Take Permits, Incidental Take Permits, continuedcontinued

Application Phase:Application Phase: Applications are to be submitted to the Applications are to be submitted to the

Regional ManagerRegional Manager Application contents are found in section Application contents are found in section

783.2 of the California Code of 783.2 of the California Code of Regulations.Regulations.

DFG has 30 days to respond, in writing, DFG has 30 days to respond, in writing, to an application. If DFG does not to an application. If DFG does not respond, the application is deemed respond, the application is deemed complete. complete.

Incidental Take Permits, Incidental Take Permits, continuedcontinued

Processing TimesProcessing Times 90 days when DFG is responsible agency (60 day 90 days when DFG is responsible agency (60 day

extension if necessary)extension if necessary) 120 days if DFG is lead agency (60 day extension if 120 days if DFG is lead agency (60 day extension if

necessary)necessary) Note: time lines are from date of acceptance of complete Note: time lines are from date of acceptance of complete

application application oror from approval of CEQA document, from approval of CEQA document, whichever is later. whichever is later.

IssuanceIssuance Regulatory timeframes are directory – project proponent Regulatory timeframes are directory – project proponent

may not proceed until a permit is issued, even if DFG is may not proceed until a permit is issued, even if DFG is past the regulatory deadline.past the regulatory deadline.

DFG issues permit by signature of Regional Manager, DFG issues permit by signature of Regional Manager, Permittee must acknowledge and return copy to DFG to Permittee must acknowledge and return copy to DFG to have coverage.have coverage.

DFG must make CESA and CEQA Findings (see Cal Code DFG must make CESA and CEQA Findings (see Cal Code Regs Regs § § 783.5 (c)(2))783.5 (c)(2))

Incidental Take Permits, continuedIncidental Take Permits, continued

Issuance Criteria Issuance Criteria Fish & G. Code, Fish & G. Code, §§ 2081, subds. (b) and (c) 2081, subds. (b) and (c)

Take is incidentalTake is incidental

Take is minimizedTake is minimized

Take is fully mitigatedTake is fully mitigated

Funding is ensured and adequate to implement Funding is ensured and adequate to implement measures required to minimize and fully mitigate, measures required to minimize and fully mitigate, including compliance and effectiveness monitoringincluding compliance and effectiveness monitoring

No permit may be issued if jeopardy would resultNo permit may be issued if jeopardy would result

Note: No regulatory equivalent under CESA to federal Note: No regulatory equivalent under CESA to federal “No Surprises” assurances.“No Surprises” assurances.

Common Issues that Arise During Common Issues that Arise During Incidental Take Permitting Under Incidental Take Permitting Under

CESACESA Required analysis of the extent to which the project could Required analysis of the extent to which the project could

result in take of species proposed to be covered by the result in take of species proposed to be covered by the permit.permit.

Coordinating related review by the federal government and Coordinating related review by the federal government and addressing differences in take definitions and permitting addressing differences in take definitions and permitting standards.standards.

Fully protected species and State non-listed species Fully protected species and State non-listed species proposed for coverage.proposed for coverage.

Form of security provided for required financial assurances Form of security provided for required financial assurances and issues related to who holds the long-term endowment.and issues related to who holds the long-term endowment.

CESA Basics Part 2: Consistency CESA Basics Part 2: Consistency DeterminationsDeterminations

Consistency DeterminationsConsistency Determinations

What is it?What is it? When can you use it?When can you use it? Request ProcessRequest Process What to look for and where it can be (BO What to look for and where it can be (BO oror

ITS)ITS) Fatal FlawsFatal Flaws FundingFunding Timelines (Timelines (mustmust respond) respond)

Consistency Determinations, Consistency Determinations, continuedcontinued

What is a consistency determination?What is a consistency determination? Enacted in 1998 (at the same time as 2081(b) took Enacted in 1998 (at the same time as 2081(b) took

effect) as an effort to allow a streamlining option for effect) as an effort to allow a streamlining option for permitting.permitting.

It is a concurrence by DFG that the applicant’s federal It is a concurrence by DFG that the applicant’s federal incidental take authorization can be used for state incidental take authorization can be used for state incidental take authorization in lieu of a separate state incidental take authorization in lieu of a separate state permit.permit.

When can a consistency determination be used?When can a consistency determination be used? When the federal agency has issued an incidental take When the federal agency has issued an incidental take

statement (in a biological opinion) or incidental take statement (in a biological opinion) or incidental take permit (in conjunction with an HCP), permit (in conjunction with an HCP), andand

When all species are listed under When all species are listed under bothboth ESA and CESA, ESA and CESA, andand

When the measures contained in the federal ITS or ITP When the measures contained in the federal ITS or ITP meet the state issuance criteria in 2081(b)meet the state issuance criteria in 2081(b)

Consistency Determinations, Consistency Determinations, continuedcontinued

Process Overview:Process Overview: Applicant writes letter of request to DFG Applicant writes letter of request to DFG DirectorDirector; attaches copy of BO/ITS or of HCP/ITP ; attaches copy of BO/ITS or of HCP/ITP (if there is no ITS or ITP, there is no CD)(if there is no ITS or ITP, there is no CD)

Date received starts 30-day clockDate received starts 30-day clock Regional staff is primary lead for preparation – Regional staff is primary lead for preparation –

early coordination is criticalearly coordination is critical Determinations are signed by the DFG Deputy Determinations are signed by the DFG Deputy

DirectorDirector Note: DFG Note: DFG mustmust take action on a CD request – take action on a CD request –

consistent, inconsistent, or applicant withdraws. consistent, inconsistent, or applicant withdraws. If inconsistent, Applicant has to get a 2081(b) If inconsistent, Applicant has to get a 2081(b) permit*permit*

Consistency Determinations, Consistency Determinations, continuedcontinued

Processing:Processing: Measures intended to meet the CESA issuance Measures intended to meet the CESA issuance

criteria can be in the BO itself criteria can be in the BO itself oror in the ITS in the ITS (section 7)(section 7)

Common fatal flaws: missing or deferred funding, Common fatal flaws: missing or deferred funding, missing DFG in approval loop, lack of timelines, missing DFG in approval loop, lack of timelines, inadequate analysis or inadequate mitigation, inadequate analysis or inadequate mitigation, presence of or authorization to take fully presence of or authorization to take fully protected speciesprotected species

Note on Funding: Funding assurances (Security) Note on Funding: Funding assurances (Security) must be of a form that allows DFG full access to must be of a form that allows DFG full access to draw on it (i.e. letter of credit held by DFG)draw on it (i.e. letter of credit held by DFG)

Consistency Determinations, Consistency Determinations, continuedcontinued

Issuance:Issuance: If DFG determines the federal authorization is If DFG determines the federal authorization is

consistent, Applicant receives a “Determination” consistent, Applicant receives a “Determination” that documents the elements of that that documents the elements of that authorization that meet the CESA issuance authorization that meet the CESA issuance criteria.criteria.

If DFG determines the federal authorization is If DFG determines the federal authorization is not consistent, the Applicant will first be allowed not consistent, the Applicant will first be allowed the opportunity to withdraw the request. If the the opportunity to withdraw the request. If the Applicant does not withdraw, DFG will issue a Applicant does not withdraw, DFG will issue a determination of “Inconsistency” and the determination of “Inconsistency” and the Applicant will have to obtain State coverage by Applicant will have to obtain State coverage by applying for a CESA permit (2081(b))applying for a CESA permit (2081(b))

2080.1 vs 2081(b)2080.1 vs 2081(b)

Request to Director: BO and Request to Director: BO and ITS (section 7) or HCP and ITP ITS (section 7) or HCP and ITP (section 10) must be included(section 10) must be included

30 days to make 30 days to make DeterminationDetermination

Miss deadline = approvedMiss deadline = approved All species must be jointly All species must be jointly

listedlisted Cannot add or change Cannot add or change

conditionsconditions Not considered a “discretionary Not considered a “discretionary

approval” subject to CEQAapproval” subject to CEQA BO must contain measures BO must contain measures

necessary to meet CESA necessary to meet CESA issuance criteriaissuance criteria

Application to Regional Application to Regional ManagerManager

120-180 days to issue*120-180 days to issue* Miss deadline = no Miss deadline = no

automatic approvalautomatic approval Species can be jointly listed Species can be jointly listed

or state listedor state listed Department specified Terms Department specified Terms

and Conditionsand Conditions Issuance of an permit is a Issuance of an permit is a

“discretionary approval” “discretionary approval” subject to CEQA (Department subject to CEQA (Department must document its must document its compliance with CEQA)compliance with CEQA)

State-Federal Permitting State-Federal Permitting Coordination:Coordination:

Consistency DeterminationsConsistency Determinations

ESA Definition of TakeESA Definition of Take ““HarassHarass, , harmharm, pursue, hunt, shoot, wound, kill, , pursue, hunt, shoot, wound, kill,

trap, capture, or collect, or attempt to engage in trap, capture, or collect, or attempt to engage in any such conduct”any such conduct”

Harass means activities that create the likelihood Harass means activities that create the likelihood of injury by disrupting normal behavior patterns, of injury by disrupting normal behavior patterns, including breeding, feeding, and sheltering. including breeding, feeding, and sheltering.

Harm includes activities that actually kill or injure, Harm includes activities that actually kill or injure, including “significant” habitat modification or including “significant” habitat modification or degradation.degradation.

So…. ESA includes activities that disrupt or injure So…. ESA includes activities that disrupt or injure listed species but may not cause mortality. How listed species but may not cause mortality. How might this complicate your permitting efforts?might this complicate your permitting efforts?

Federal Incidental Take Authorization Federal Incidental Take Authorization Overview (Sections 7 and 10)Overview (Sections 7 and 10)

Section 7: “consultation” with FWS or NMFS where a Section 7: “consultation” with FWS or NMFS where a federal nexusfederal nexus exists (federal funding, 404 permit, exists (federal funding, 404 permit, etc); triggered by “may affect” listed species (plant etc); triggered by “may affect” listed species (plant or animal) or critical habitat; required to minimize or animal) or critical habitat; required to minimize and not jeopardize; funding assurances not requiredand not jeopardize; funding assurances not required

Section 10: Habitat Conservation Plan when no Section 10: Habitat Conservation Plan when no federal nexus; triggered by “likely to result in take” federal nexus; triggered by “likely to result in take” of listed species (animals); required to minimize and of listed species (animals); required to minimize and mitigate to the extent practicable; funding mitigate to the extent practicable; funding assurances requiredassurances required

Section 7/10 Comparison Section 7 Federal hook (action, permit, money,

land) Trigger: may affect listed species Wildlife and plants BA is federal agency's document (not

public) EA or EIS is federal Lead Agency's document (public review) BO Jeopardy or No Jeopardy Incidental take statement Threshold: Not jeopardize the continued

existence of listed species; not result in destruction or adverse modification of designated critical habitat

Legal time limits: 135 days from BA to BO

Duration: Consultation may be reopened if project changes

Section 10 Nonfederal lead (state, local,

private) Internal USFWS/NOAA Section 7

Trigger: likely to result in take Wildlife only but plants under

internal Section 7 HCP is applicant's document EA or EIS prepared by applicant

for USWFS/NOAA (public review) Section 10(a)(1 )(B) permit

issuance or denial Incidental take permit Threshold: Not appreciably reduce

likelihood of survival and recovery of the species in the wild

Processing time guidelines Permit life is set at time of

issuance (some as long as 100 years)

Pros and Cons: section 7 vs. 10Pros and Cons: section 7 vs. 10

Is section 7 even available? Federal nexusIs section 7 even available? Federal nexus Section 7 consultations are fasterSection 7 consultations are faster Public participation (NEPA) in Section 10, Public participation (NEPA) in Section 10,

none in Section 7none in Section 7 Long-term benefits (no surprises Long-term benefits (no surprises

assurances) in Section 10, no assurances assurances) in Section 10, no assurances in Section 7in Section 7

HCP/Section 7 and Consistency HCP/Section 7 and Consistency DeterminationsDeterminations

Application: where a Biological Opinion Application: where a Biological Opinion addresses species listed under addresses species listed under bothboth ESA and CESAESA and CESA Pro: very streamlined process for applicant Pro: very streamlined process for applicant Con: DFG cannot change or add any Con: DFG cannot change or add any

conditions to meet CESA fully mitigated conditions to meet CESA fully mitigated standardstandard

HCP/Section 7 and Consistency HCP/Section 7 and Consistency Determinations, continuedDeterminations, continued

Section 7 Federal agency Section 7 Federal agency consultationconsultation no jeopardyno jeopardy MinimizeMinimize level of take level of take No assurancesNo assurances

Section 10 conservation Section 10 conservation planning (HCP)planning (HCP) Minimize level of takeMinimize level of take Mitigate take to Mitigate take to maximum maximum

extent practicableextent practicable Funding requiredFunding required ““No surprises” assurancesNo surprises” assurances

CESA 2080.1 CESA 2080.1 No jeopardyNo jeopardy Funding requiredFunding required MinimizeMinimize level of level of

taketake Fully mitigateFully mitigate

impacts of takeimpacts of take

Consistency Determinations, Consistency Determinations, continuedcontinued

Other notes:Other notes: Programmatic BOs – how to handleProgrammatic BOs – how to handle

What if it’s inconsistent? Options.What if it’s inconsistent? Options.

Plants – DFG will issue Determinations for Plants – DFG will issue Determinations for plants if the measures meet the CESA criteriaplants if the measures meet the CESA criteria

““not likely to affect” determinations – how to not likely to affect” determinations – how to respondrespond

Keys to SuccessKeys to Success

Work closely with Federal counterpartsWork closely with Federal counterparts ““Coordinate early and often”Coordinate early and often”

Ensure that the HCP/Section 7 biological Ensure that the HCP/Section 7 biological opinion meets CESA standardopinion meets CESA standard Full MitigationFull Mitigation Ensured FundingEnsured Funding