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Incidental Take Permits

Bank Swallows

State Threatened Bank Swallows (Riparia riparia)

Tamarack Lake
Navarretia leucocephala ssp.plieantha

State and Federally Endangered Many Flowered Navarretia (Navarretia leucocephala ssp. plieantha)

Incidental Take Permits allow a permittee to take a CESA-listed species if such taking is incidental to, and not the purpose of, carrying out an otherwise lawful activity. These permits are most commonly issued for construction, utility, transportation, and other infrastructure-related projects. Permittees must implement species-specific minimization and avoidance measures, and fully mitigate the impacts of the project. (Fish & G. Code § 2081 (b); Cal. Code Regs., tit. 14, §§ 783.2-783.8)

How Do I Apply For An Incidental Take Permit?

To initiate the Incidental Take Permit process, contact the appropriate CDFW Regional Office in the location of the proposed project. A local Environmental Scientist will help guide the Incidental Take Permit application and will maintain contact throughout the Incidental Take Permit process.

CDFW will accept applications in any form, but they must be submitted to the Regional Manager and they must include the following:

  1. The appropriate link opens in new windowapplication fee (PDF).
  2. Applicant’s full name, mailing address, and telephone number(s). If the applicant is a corporation, firm, partnership, association, institution, or public or private agency, the name and address of the person responsible for the project or activity requiring the permit, the president or principal officer, and the registered agent for the service of process.
  3. The common and scientific names of the species to be covered by the permit and the species' status under CESA.
  4. A complete description of the project or activity for which the permit is sought.
  5. The location where the project or activity is to occur or to be conducted.
  6. An analysis of whether and to what extent the project or activity for which the permit is sought could result in the taking of species to be covered by the permit.
  7. An analysis of the impacts of the proposed taking on the species.
  8. An analysis of whether issuance of the incidental take permit would jeopardize the continued existence of a species. 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.
  9. Proposed measures to minimize and fully mitigate the impacts of the proposed taking.
  10. A proposed plan to monitor compliance with the minimization and mitigation measures and the effectiveness of the measures.
  11. A description of the funding sources and the level of funding available for implementation of the minimization and mitigation measures.
  12. Certification in the following language: I certify that the information submitted in this application is complete and accurate to the best of my knowledge and belief. I understand that any false statement herein may subject me to suspension or revocation of this permit and to civil and criminal penalties under the laws of the State of California.
  13. Documentation of CEQA compliance.

What Are The Minimization Requirements?

Minimization measures are intended to ensure the minimization of incidental take of CESA-listed species in the project area during covered activities. They are collaboratively developed on a project-by-project basis by the permit applicant and CDFW. Examples  of general measures used in the past include:

  • Erecting protective fencing around sensitive habitat within construction sites
  • Limited operating periods to avoid breeding, movements, etc.
  • Pre-construction surveys to identify and mark sensitive or suitable habitat features
  • Onsite construction personnel education programs covering species identification, protected status, and measures to take if one is found

Some minimization measures are species-specific. The following are examples of measures developed for minimizing take of California tiger salamander (CTS):

Temporary Barrier

Prior to commencing any other Covered Activities Permittee shall install a temporary barrier to prevent CTS from dispersing into the Project Area. Permittee shall submit the design to CDFW for approval no less than 30 days prior to the proposed start of Covered Activities. Permittee shall place the barrier around the construction footprint within 1.3 miles1  (2.1 km) of potential or known CTS breeding sites and the barrier shall be maintained by the Permittee throughout all construction activities. The Designated Biologist(s) shall inspect the area prior to installation. The Designated Biologist(s) shall inspect the barrier daily and during and after storm events (see Seasonal Work Restriction). The Permittee shall maintain and repair the barrier immediately to ensure that it is functional and without defects. The barrier shall consist of one of the following:

  1. Taut silt fabric fencing (supported by wooden stakes) at least 1 foot tall above the soil surface and buried to a depth of 6-12 inches below the soil surface2.
  2. Metal flashing at least 1.64 feet tall above the soil surface and buried to a depth of 4.7-6 inches below the soil surface3.
  3. Welded metal hardware cloth, ¼-inch mesh size, extending at least 12 inches above the soil and buried at least 4 inches below the soil surface. The top shall be folded over or a piece of ½ inch PVC cut laterally shall be placed on the top of the fencing.

[1] Distance stipulated by 69 Fed. Reg. 47212-47248, Aug. 4, 2004; 50 C.F.R. § 17.43, subd. (c). Based on the observation of a single individual that was 1.3 mi from the closest known breeding pond (Sweet, 1998).
[2] The specified measurements were used by researchers constructing drift fences to capture CTS (Searcy and Shaffer, 2011; Trenham and Cook, 2008).
[3] The specified measurements are common to amphibian surveys using drift fencing and are detailed in Enge, 1997; Strain and Raesly, 2012; Strain et al., 2009. Flashing should have a v-shape bent into the bottom edge buried in the soil to prevent disturbance from wind (Michael van Hattem, personal communication, June 28, 2013).

Seasonal Work Restriction

Permittee shall ensure that Covered Activities involving construction and heavy equipment use (such as excavation, grading and contouring) that are conducted in streams, ponds, wetlands and other riparian areas are limited to the period from July 15 to October 151  of each year (Dry Season) until the expiration of this ITP. Covered Activities may begin prior to the Dry Season if the stream, pond and/or wetland in which work will occur have been dry for a minimum of 30 days prior to initiating work. Permittee shall limit these Covered Activities to periods of low rainfall (less than 0.08 inches2  per 24-hour period and less than 40 percent chance of rain). Permittee or Designated Biologist(s) shall consult the 72-hour weather forecasts from the National Weather Service (NWS) prior to the start of any phase of the Project. Any work outside of the Dry Season shall be subject to approval of CDFW. Construction activities shall cease 24 hours prior to a 40 percent or greater forecast of rain from the NWS. Construction may continue 24 hours after the rain ceases and there is no precipitation in the 24-hour forecast.

[1] This time period avoids the breeding season (January-February) as well as the period when larval and metamorphs are in ponds (February-July) (Trenham et al., 2000). However, note that CTS larvae may occupy breeding pools through winter if pools are perennial (Alvarez, 2004).
[2] The specified measurements were used by researchers constructing drift fences to capture CTS (Searcy and Shaffer, 2011; Trenham and Cook, 2008).

Open Trenches

The Designated Biologist(s) shall check all excavated open holes, pumps, and trenches for CTS at the beginning, middle, and end of each day for trapped animals. If there is CTS trapped in these features, the Designated Biologist(s) shall remove and relocate the animal(s) to a safe location within suitable habitat prior to the start of work activities at that site.To prevent inadvertent entrapment of CTS, the Permittee shall ensure all excavated trenches and holes are provided with one or more escape ramps. Permittee shall construct the ramps of earth fill or wooden planks and shall be inspected by the Designated Biologist(s) prior to sunrise each morning.

In-Pond Work Window

Permittee shall confine all activities within ponds or pools to the period of July 15 to October 151  of each year (Dry Season) until the expiration of this ITP. Covered Activities may begin prior to the Dry Season if the stream, pond, and/or wetland in which work will occur have been dry for a minimum of 30 days prior to initiating work. Permittee shall ensure that no Project-related Activities occur at any time when CTS is in a breeding, larval, metamorph, or migratory season2. The Permittee shall monitor the National Weather Service (NWS) forecast for the Project Area. If NWS predicts rain within 72 hours of Project activity, Permittee shall cease all activities until NWS forecasts no further rain. If the ponds/pools remain dry after the rain, the Permittee may continue activities.

[1] This time period avoids the breeding season (January-February) as well as the period when larval and metamorphs are in ponds (February-July) (Trenham et al., 2001).
[2] The breeding period typically occurs in early January. The larval period is from February through May. Metamorphs are found in ponds May through July. Adults migrate to and from ponds from October through March, usually following the first heavy rain of the season, with the most active period December through February. Metamorphs migrate from ponds to upland habitat in May through July or when ponds dry (Trenham et al., 2000).

 

What Are The Mitigation Requirements?

CDFW may determine that permanent protection and perpetual management of compensatory habitat is necessary and required pursuant to CESA to fully mitigate project-related impacts of the taking on the Covered Species that will result with implementation of the project. Determinations are based on factors including an assessment of the importance of that habitat in the project area, the extent to which covered activities will impact the habitat, and CDFW’s estimate of the acreage required to provide for adequate compensation.

Conservation/Mitigation Banking

Permittees may purchase credits from a CDFW approved conservation or mitigation bank, which is a privately or publicly owned land managed for its natural resource values. Credits are established for the specific CESA-listed species that occur on the site. For example, a project that will result in take of giant garter snake may purchase giant garter snake credits from Colusa Basin Mitigation Bank, Dolan Ranch Conservation Bank, Sutter Basin Conservation Bank, or Grasslands Mitigation Banks. 

Conservation Easement

A project proponent may enter into a conservation easement with a land trust, government agency, tribe, or other qualified organization to mitigate adverse impacts on natural resources. A conservation easement is a voluntary legal agreement that protects the land by permanently limiting some uses that would compromise the conservation values or the landowners’ goals for the property. See California Government Code section 65965 et seq. and California Civil Code section 813 et seq.

Can A Project Start Before The Mitigation Is Complete?

Yes. If mitigation 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 CDFW must 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. 

Is An Endowment Required?

Yes – if CDFW requires the project proponent to purchase, transfer, or protect lands to mitigate impacts to CESA-listed species.

No – if CDFW requires the project proponent to purchase credits at a conservation or mitigation bank.

What Is An Endowment?

The term “endowment” is a matter of semantics. Generally, an endowment refers to financial assets that are structured so the initial amount invested (i.e., the principal, capital, or corpus) remains intact, and only the interest or investment gains are withdrawn.

Endowments are setup for a specific purpose (e.g., scholarships, faculty, operating costs, or long-term land stewardship) coupled with investment policies to meet certain rates of return. Perhaps the most important components of an endowment are the restrictions on withdrawing and using the funds (i.e., the endowment corpus and revenues generated from interest, dividends, etc.). A legally binding document (i.e., mitigation agreement) between the donor of the endowment and the beneficiary will provide the specificities of the investment policy, withdrawal policy, and usage of the funds. 

Endowments Are Not Created Equally

Endowments are typically classified as unrestricted, temporarily restricted, and permanently restricted. Unrestricted endowments or endowment-like-funds (ELF) are assets classified by an entity as an endowment; however, an entity can spend any part of the ELF (i.e., capital, interest, gains) at their discretion. Temporarily restricted endowments are invested with initial restrictions for a specific purpose. Following a pre-determined date, a period of time, or the occurrence of a particular event the endowment becomes unrestricted. Permanently restricted endowments have their principal held in perpetuity, while the earnings and interest from the invested assets are expended per specific donor-imposed or legal restrictions.

Does CDFW Always Require An Endowment For The Long-Term Stewardship Of Mitigation Lands?

Yes. If CDFW requires a project proponent to purchase, transfer, or protect land to offset adverse impacts to fish and wildlife, state law requires the creation of a fund for the sole purpose of managing that land in perpetuity. That fund must meet the definition of an endowment (Gov. Code, § 65965, subd. (a)) and shall meet the following criteria: 

  1. The endowment shall be held, managed, invested, and disbursed solely for, and permanently restricted to, the long-term stewardship of the specific property for which the funds were set aside.
  2. The endowment shall be calculated to include a principal amount that, when managed and invested, is reasonably anticipated to cover the annual stewardship costs of the property in perpetuity.
  3. The endowment shall be held, managed, invested, disbursed, and governed as described in subdivision (a) of Section 65965 consistent with the Uniform Prudent Management of Institutional Funds Act (Part 7 (commencing with Section 18501) of Division 9 of the Probate Code).

In the context of mitigation lands, endowments are restricted and specifically defined in Government Code section 65956 as funds that are conveyed solely for the long-term stewardship of a mitigation property, and permanently restricted to paying the costs of long-term management and stewardship of the mitigation property for which the funds were set aside.

Is CEQA Required?

Yes. CDFW’s issuance of an Incidental Take Permit 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.