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CESA to the Federal Endangered Species Act

Federal Endangered Species Act of 1973 California Endangered Species Act
Statutes - United States Code, title 16, chapter 35, sections 1531-1544 - Fish and Game Code, chapter 1.5, sections 2050-2115.5
Regulations - Code of Federal Regulations, title 50, chapter 1, subchapter B, part 17, sections 17.1-17.108 - California Code of Regulations, title 14, chapter 6, sections 783.0-787.9
Endangered Species - Any species which is in danger of extinction throughout all or a significant portion of its range. 16 U.S.C., §1532 (6); 50 C.F.R. § 17.3 - A native species or subspecies of bird, mammal, fish, amphibian, reptile, or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, overexploitation, predation, competition, or disease. Fish & G. Code, §2062
Threatened Species - Any species which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. 16 U.S.C., §1532 (20); 50 C.F.R. § 17.3 - A native species or subspecies of bird, mammal, fish, amphibian, reptile, or plant that, although not presently threatened with extinction, is likely to become an endangered species in the foreseeable future in the absence of the special protection and management efforts required by this chapter. Fish & G. Code, §2067
Candidate Species - Not defined or addressed in statute or regulations. Candidate species are those which USFWS has sufficient information on their biological status and threats to propose listing, but for which the development of a proposed listing regulation is precluded by other higher priority listing activities. Candidates receive no protection under the ESA. - A native species or subspecies of bird, mammal, fish, amphibian, reptile, or plant that the commission has formally noticed as being under review by the Department for listing. Candidates are given full CESA protection. Fish & G. Code, §2068
Take - Harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct. 16 U.S.C., §1532 (19) - Hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. Fish & G. Code, §86
Harass - An intentional or negligent act or omission which creates the likelihood of injury to wildlife by annoying it to such an extent as to significantly disrupt normal behavioral patterns (e.g., breeding, feeding, or sheltering). 16 U.S.C., §1532 (20); 50 C.F.R. § 17.3 - No state equivalent
Harm - An act which actually kills or injures wildlife. May include significant habitat modification or degradation that kills or injures wildlife by significantly impairing essential behavior patterns. 16 U.S.C., §1532 (20); 50 C.F.R. § 17.3. - No state equivalent
Incidental Take - Take that is otherwise prohibited, if such taking is incidental to, and not the purpose of, the carrying out of an otherwise lawful activity. 16 U.S.C., §1532 (20); 50 C.F.R. § 17.3. - “Incidental Take” is not defined in state statutes or regulations.
Prohibition of Taking Listed Species
Prohibition of Take - With respect to any endangered species of fish or wildlife, it is unlawful for any person to import any such species into, or export any such species from the U.S.; take any such species within the U.S. or territorial sea; possess, sell, deliver, carry, transport, or ship, by any means whatsoever; deliver, receive, carry, transport, by any means whatsoever and in the course of a commercial activity, any such species; sell or offer for sale any such species; or violate any regulation pertaining to such species or to any threatened species of fish or wildlife. 16 U.S.C. §1538; endangered species: 50 C.F.R. §17.21 (c); threatened species: 50 C.F.R. §17.31 (a) - No person shall import into this state, export out of this state, or take, possess, purchase, or sell within this state, any species, or any part or product thereof, that the commission determines to be an endangered species or a threatened species, or attempt any of those acts. Fish & G. Code, §2080; Cal. Code Regs., tit. 14, § 783.1
Exceptions to the Prohibitions of Take
Research, Management, Enhancement Related Take - Permits allow take for scientific purposes to enhance the propagation or survival of the affected species (e.g., establishment and maintenance of experimental populations). Referred to as enhancement of survival permit. 16 U.S.C. §1539 (a)(1)(A) [Section 10 (a)(1)(A)]; endangered species: 50 C.F.R. §17.22 (a); threatened species: 50 C.F.R. §17.32 (a) - Permits and memorandums of understanding (MOUs) authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions to import, export, take, or possess endangered, threatened, or candidate species for scientific, educational, or management purposes. Fish & G. Code §2081, subd. (a)
Experimental Populations - A geographically described group of reintroduced plants or animals that is isolated from other existing populations of the species. Considered to be threatened under the ESA; if determined to be “nonessential,” treated as a candidate with no ESA protection. 16 U.S.C. §1539 (j) [Section 10 (j)] - No state equivalent
Take Related to Contributing to Species Recovery
Safe Harbor Agreement (SHA) - A voluntary agreement involving private or other non-Federal property owners whose actions contribute to the recovery of species listed as threatened or endangered. In exchange for actions that contribute to the recovery of listed species, participating property owners receive formal assurances or a “safe harbor” from violating the take prohibition. Endangered species: 50 C.F.R. §§ 17.22 (c); threatened species: 17.32 (c); implements 16 U.S.C. §1539 (a)(1)(A) [Section 10 (a)(1)(A)]. - Encourage landowners to manage their lands voluntarily to benefit state-listed endangered, threatened, or candidate species and does not subject landowners to additional regulatory restrictions in the future because of their conservation efforts. A SHA must result in a net conservation benefit to the covered species and cannot result in a reduction of existing populations of species present at the time the baseline is established. Fish & G. Code §2089.2-2089.26
Candidate Conservation Agreements - Candidate Conservation Agreements with Assurances are similar to a SHA but covers candidate species. 50 C.F.R. §§ 17.22 (d) - No state equivalent
Take Authorization for Private Landowners
Habitat Conservation Plan (HCP) - Provides for partnerships with non-Federal parties to conserve the ecosystems upon which listed species depend, ultimately contributing to their recovery. HCPs are planning documents required as part of an application for an incidental take permit. Can apply to listed and non-listed species, including candidates. 16 U.S.C. §1539 (a)(1)(B) [Section 10 (a)(1)(B)];50 C.F.R. 17.22(b)(2) for endangered species and 50 C.F.R. 17.32(b)(2) for threatened species - Natural Community Conservation Planning (NCCP)NCCPS promote coordination, effectively address cumulative impact concerns, promote conservation of un-fragmented habitat areas, promote multispecies and multi-habitat management and conservation, provide one option for identifying and ensuring appropriate mitigation that is roughly proportional to impacts on fish and wildlife, and promotes the conservation of broad-based natural communities and species diversity. Can apply to listed, non-listed, and fully-protected species. - Fish & G. Code §§ 2800-2835
4 (d) Rules - Allow for the establishment of special regulations for threatened (not endangered) species, subspecies, and Distinct Population Segments. These rules take the place of the normal protections of the ESA and may increase or decrease normal ESA protections. Rules must be “necessary and advisable to provide for the conservation of such species.” 16 U.S.C. §1533 (a) [Section 4 (d)]; 50 C.F.R. § 17.40 (d) - No state equivalent
Voluntary Local Program (VLP) - No federal equivalent - Encourages farmers and ranchers engaged in agricultural activities to establish locally designed programs to voluntarily enhance and maintain habitat for endangered and threatened species. Any taking of listed species incidental to routine and ongoing agricultural activities that occur while following specified management practices is not prohibited. Fish & G. Code § 2086-2089; Cal. Code Regs., tit. 14, §§ 786.0-786.8
Accidental Take - No federal equivalent - Accidental (unintended or unforeseen) take of candidate, threatened, or endangered species is not prohibited if it is the result of an act that occurs on a farm or ranch in the course of an otherwise lawful routine and ongoing agricultural activity. Fish & G. Code § 2087
Project Related Take (i.e., take incidental to an otherwise lawful activity)
Incidental Take Permit (ITP) - Allows an exception to the take prohibition in ESA. A habitat conservation plan (HCP) must accompany an application for an ITP. The HCP associated with the permit contains conditions and measures to ensure the effects of incidental take are minimized and mitigated.
  • The applicant must ensure that adequate funding for the plan will be provided
  • The applicant must to the maximum extent practicable, minimize and mitigate the impacts of take
  • Take must not appreciably reduce the likelihood of the survival and recovery of the species in the wild 16 U.S.C. §1539 (a)(1)(b) [Section 10 (a)(1)(b)]; 50 C.F.R. §17.22(b)(2)
- Allows an exception to the take prohibition in CESA if a permittee implements certain conditions of approval specified by the Department that meet the standards for issuance. The ITP contains measures roughly proportional to the impact of take that a permittee must implement in order to be exempt from the take prohibition.
  • The applicant must ensure adequate funding to implement measures
  • Take must be minimized and fully mitigated
  • Take must not jeopardize the continued existence of the species Fish & G. Code § 2081 (b); Cal. Code Regs., tit. 14, §§ 783.2-783.8
Consistency Determination (CD) - No federal equivalent - Allows applicants who obtain a federal ITP or incidental take statement (ITS) for a species also listed under CESA, to request a determination from the Director that the federal document is consistent with CESA. If the Director determines that the federal ITP or ITS is consistent with CESA, the Department will issue a CD. Fish & G. Code § 2080.1
Interagency Take Authorizations
Interagency Cooperation - Federal agencies must consult with the USFWS to insure that any action authorized, funded, or carried out by federal agencies is not likely to jeopardize the continued existence of a listed species, or destroy or adversely modify critical habitat. 16 U.S.C. §1536 (a) [Section 7 (a)]; 50 C.F.R. § 402 - State equivalent no longer in effect, as of January 1, 1999. Repealed by Stats. 1993, c. 33 (A.B. 426) § 1, operative January 1, 1999

Habitat Conservation Planning Branch
1416 Ninth Street, 12th Floor, Sacramento, CA 95814
(916) 653-4875