Pursuant to Fish and Game Code section 711.4, subdivision (c)(1), all project proponents including public agencies subject to the California Environmental Quality Act (CEQA) shall pay a filing fee for each project. The filing fee will be waived however, if the project will have no effect on fish and wildlife. Projects that are statutorily or categorically exempt from CEQA are not subject to the filing fee and do not require an NED (Cal. Code Regs., tit. 14, §§ 15260 – 15333; Fish & G. Code, § 711.4, subd. (d)(1)).
Determining whether a project subject to CEQA will affect fish and wildlife is the responsibility of CDFW. An NED is made solely for the purpose of determining filing fees and is not part of the assessment a lead agency makes under CEQA (Cal. Code Regs., tit. 14, § 753.5, subd. (c)(1)(A)). Lead agencies continue to be responsible for determining whether projects will have potentially significant environmental effects on the environment, including biological resources.
For the assessment of CEQA filing fees, a project that causes any effect on the habitat on which fish and wildlife may depend, or causes direct harm to fish and wildlife, is considered to have an effect on fish and wildlife. A filing fee is required regardless of project size, magnitude of the effect, or whether the effect on the environment is considered positive or negative (Cal. Code Regs., tit. 14, § 753.5, subd. (d)).
CDFW may determine that a project would have no effect on fish and wildlife if all of the following conditions apply:
- The project would not result in or have the potential to result in harm, harassment, or take of any fish and/or wildlife species.
- The project would not result in or have the potential to result in direct or indirect destruction, ground disturbance, or other modification of any habitat that may support fish and/or wildlife species.
- The project would not result in or have the potential to result in the removal of vegetation with potential to support wildlife.
- The project would not result in or have the potential to result in noise, vibration, dust, light, pollution, or an alteration in water quality that may affect fish and/or wildlife directly or from a distance.
- The project would not result in or have the potential to result in any interference with the movement of any fish and/or wildlife species.
If CDFW determines that a project meets all of the above conditions, the project may qualify for an NED (Cal. Code Regs., tit. 14, § 753.5, subd.(d)).
Examples of Qualifying Projects
Only a small fraction of projects with a Negative Declaration (ND), Mitigated Negative Declaration (MND), or Environmental Impact Report (EIR) have qualified for an NED. CDFW makes each NED on a case-by-case basis. CDFW has previously found the following types of projects to have no effect on fish and wildlife:
- Development and redevelopment in highly urbanized or industrialized settings, typically within existing footprints, and demolition and rebuilding at sites where the project did not affect nearby animals, bat roosts, nesting birds, and other resources.
- Minor zoning changes that did not lead to or allow new construction, grading, or other physical alterations to the environment.
- Minor modifications to existing structures including addition of a second story to single or multi-family residences.
- Approval of administrative regulations, school, or special district redistricting, and air quality improvement plans subject to CEQA that did not authorize activities that could cause effects on fish and wildlife or physical alterations to the environment.
A proposed project’s similarity with the example projects listed above should not be used as justification for an NED.
Submitting a Request
The lead agency or project applicant should pre-screen their project for the above considerations prior to submitting an NED Request Form (Cal. Code Regs., tit. 14, §753.5, subd.(c)(1)(A)). If you anticipate that your project will have no effect on fish and wildlife, please follow the below instructions:
- Complete an NED Request Form and send it to the appropriate Regional Office with the environmental document. (Projects with a statewide scope send the NED Request Form to the Habitat Conservation Planning Branch, CEQA Program, 1416 9th Street, Sacramento, CA 95814, or email to CEQA@wildlife.ca.gov).
- Documents submitted in digital format are preferred (e.g., email, compact or digital videodisk). Contact the appropriate Regional Office to obtain the correct email address. Digital files for supporting documents larger than 20 MB cannot be accepted through CDFW’s email system. Please send a web link if documents are available online or mail a compact disk of documents to CDFW’s regional or branch representative you have been working on the project.
- The request should be submitted when the CEQA document is released for public review, or as early as possible in the public comment period.
If CDFW determines that a project has the potential to affect fish, wildlife, or habitat, the lead agency and/or project applicant will be notified that an NED will not be issued. CEQA filing fees will be due at the time the project’s Notice of Determination (NOD) is filed. Fees for Certified Regulatory Program documents are due to CDFW prior to filing of the Notice of Decision.
Finding No Effect
If CDFW determines that a project will not have the potential to effect fish, wildlife, or habitat, then CDFW will provide the lead agency and/or project applicant with a written NED. The lead agency and/or project applicant should retain the original NED for their records and submit two copies to the county clerk (for local agencies) or Office of Planning and Research-State Clearinghouse (for state agencies) along with the NOD (Cal. Code Regs., tit. 14, §753.5, subd. (c)(2)). If the project is subject to a Certified Regulatory Program , the lead agency and/or project applicant should keep the original NED for their records and submit a copy to the Natural Resources Agency along with the Notice of Decision. Only a CDFW-issued NED form will be accepted in lieu of the CEQA filing fee. For local lead agencies, although the NED may be used in lieu of a CEQA filing fee when the NOD is filed with the county clerk, the county’s filing fee may still apply.