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CESA: Sections 2081 (b) and (c) - Incidental Take Permit Process

Incidental Take Permit Criteria

link opens in new windowSection 2081 subdivision (b) of the Fish and Game Code allows CDFW to issue an incidental take permit for a species listed as candidate, threatened, or endangered only if specific criteria are met. These criteria are reiterated in Title 14 of the California Code of Regulations, link opens in new windowSections 783.4 subdivisions (a) and (b), and are as follows:

  1. The authorized take is incidental to an otherwise lawful activity;
  2. The impacts of the authorized take are minimized and fully mitigated;
  3. The measures required to minimize and fully mitigate the impacts of the authorized take:
    1. are roughly proportional in extent to the impact of the taking on the species,
    2. maintain the applicant’s objectives to the greatest extent possible, and
    3. may be successfully implemented by the applicant;
  4. Adequate funding is provided to implement the required minimization and mitigation measures and to monitor compliance with and the effectiveness of the measures; and
  5. 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.

Compliance with the California Environmental Quality Act

When CDFW issues an Incidental Take Permit, it is considered a discretionary action as defined in Title 14 of the California Code of Regulations, link opens in new windowsection 15357, under the California Environmental Quality Act (CEQA). Therefore, before CDFW can issue the permit the applicant must have completed the necessary steps under CEQA. Compliance with CEQA is further described in Title 14 of the California Code of Regulations, section 783.3.

Minimization and Mitigation

Measures to minimize the take of species covered by the permit and to mitigate the impacts caused by the take will be set forth in one or more attachments to the permit. This attachment will generally be a mitigation plan (possibly a Habitat Conservation Plan) prepared and submitted by the Permittee in coordination with CDFW staff.

The mitigation plan should identify measures to avoid and minimize the take of CESA-listed species and to fully mitigate the impact of that take. These measures can vary from project to project.

Examples of measures used in the past include:

  • erecting protective fencing around sensitive habitat within construction sites
  • take avoidance measures tailored to the affected species
  • pre-construction notification to CDFW
  • employee education programs
  • specific reporting procedures when an animal is killed, injured, or trapped
  • compliance inspections and reports
  • directions for the acquisition and transfer of habitat management lands
  • associated funding, including money for document processing and for initial protection (e.g., fencing, posting, clean-up), and endowments for management of the lands in perpetuity

This list can serve as a partial inventory of measures that may be used to minimize and mitigate take, but these are project-specific requirements and the list is not inclusive of all potential measures. Applicants may propose alternative strategies for minimizing and fully mitigating impacts. CDFW must be able to conclude, however, that the project’s impacts are fully mitigated and the measures, when taken in aggregate, must meet the full mitigation standard.

If all mitigation and monitoring will not be completed prior to the start of activities that will affect CESA-listed species, a trust account or other form of security acceptable to the Department shall be established to ensure that funding is available to carry out mitigation measures and monitoring requirements in the event the applicant fails to complete these activities. CDFW generally requires that the performance security be in the form of an irrevocable letter of credit, surety bond, a bank trust (or escrow) account, or another form of security approved in writing in advance by CDFW's Office of General Counsel.

No Section 2081(b) permit may authorize the take of "fully protected" species and "specified birds" (Fish and Game Code Sections 3505, 3511, 4700, 5050, 5515, and 5517). If a project is planned in an area where a fully protected species or a specified bird occurs, an applicant must design the project to avoid all take; the Department cannot provide take authorization for the species under CESA.

Complete Requirements and Procedures for CESA Incidental Take Permits (California Code of Regulations, Title 14, Section 783)

California Code of
Regulations Section
Description
link opens in new window783.0 Purpose and Scope of Regulations
link opens in new window783.1 Prohibitions
link opens in new window783.2 Incidental Take Applications
link opens in new window783.3 Compliance with the California Environmental Quality Act
link opens in new window783.4 Incidental Take Permit Review Standards
link opens in new window783.5 Incidental Take Permit Process
link opens in new window783.6 General Permit Conditions
link opens in new window783.7 Permit Suspension and Revocation
link opens in new window783.8 Reconsideration and Appeal Procedures

Initiation of the Incidental Take Permit Process

To initiate the Incidental Take Permit process, applicants should contact the appropriate CDFW Regional Office in the location of the proposed project. Regional environmental scientists can help guide applicants with the Incidental Take Permit application and will maintain contact throughout the Incidental Take Permit process.

Title 14 of the California Code of Regulations, section 783.5, subdivision (b), states that a complete incidental take permit application must provide responsive information to each element of title 14 of the California Code of Regulations, sections 783.2 and 783.3. Section 783.2, subdivision (a)(7), requires that an application include a jeopardy analysis. A complete, responsive jeopardy analysis shall include consideration of the species’ capability to survive and reproduce, and any adverse impacts of the taking on those abilities in light of:

  1. Known population trends;
  2. Known threats to the species; and
  3. Reasonably foreseeable impacts on the species from other related projects and activities.

The purpose of the jeopardy analysis is to analyze whether the issuance of the requested permit would jeopardize the continued existence of the species, informed by a comparison of the effect of the adverse impacts of the taking on the species relative to the condition of the species if the adverse impacts do not occur, in light of known population trends, known threats to the species, and reasonably foreseeable impacts on the species from other related projects and activities.

Responses to the requirements of section 783.2, subdivisions (a)(5)-(a)(9), including the jeopardy analysis, shall be based on the best scientific and other information that is reasonably available. For that purpose, the Department recommends that applicants identify the scientific information that they considered in developing the jeopardy analysis.  What constitutes “the best scientific and other information that is reasonably available” will vary by species, location, project details and the extent to which scientific information pertaining to the species has been previously developed. As such, no standard criteria for what comprises “the best scientific and other information that is reasonably available” can be established.  A jeopardy analysis which does not address (A) through (C) above, in light of the “the best scientific and other information that is reasonably available” may be returned as incomplete.

Once the application is determined by the Department to be complete, during the application review period the Department may require supplementary information from the applicant regarding the jeopardy analysis. The Department may supplement its consideration of the application with additional information that it determines to be applicable.



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