Consistency Determinations

To determine project eligibility and avoid delays, CDFW highly recommends pre-consultation with Regional staff prior to submitting a consistency determination request.

To initiate the consistency determination process, an applicant must notify the Director of the California Department of Fish and Wildlife, in writing, that they have received a federal incidental take statement or federal incidental take permit issued pursuant to the federal Endangered Species Act. The notice must include:

• A copy of the federal incidental take statement or federal incidental take permit
• A notice, memo, or letter requesting that CDFW find the federal incidental take statement or permit to be consistent with CESA.
• The application fee (PDF)

Electronic copies (i.e., PDFs) of the required documents may be submitted to CDFW through the EPIMS Document Repository. For more information visit the EPIMS page and follow the given instructions.

Hard copy consistency determination requests must be submitted to the local CDFW Regional Office.

CDFW is not required to begin processing the request until CDFW has received the correct fee. If the fee was paid through Online License Sales and Service, include a copy of the sales receipt.

Yes. As of September 2016, CDFW is required to collect an application fee¹ for consistency determinations requests. Fees for consistency determinations are not dependent upon project costs but do depend on whether the project will use a CDFW-approved conservation or mitigation bank to fulfill mitigation obligations under CESA. CDFW will not begin the review of a consistency determination request until it has collected the fee. Voluntary restoration projects are not subject to CESA application fees. Additionally, restoration projects may be eligible for streamlined processing through a Restoration Management Permit (RMP) or Restoration Consistency Determination (CD).

Consistency Determination Fees (PDF).

^[1] Fees are based on amounts enrolled in Senate Bill 839 (approved by Governor on September 13, 2016), and annually adjusted pursuant to Fish and Game Code section 713.

CESA CD application fees can now be paid by credit card through CDFW's Online License Sales and Services.

Receipt of a complete consistency determination request by the Director starts a 30-day timeline for processing the Consistency Determination. The Director will immediately have a notice of the consistency determination request published in the General Public Interest section of the California Regulatory Notice Register.

The Director will make a determination as to whether the federal incidental take statement or federal incidental take permit issued pursuant to the federal Endangered Species Act is consistent with CESA. If the Director determines the federal statement/permit is consistent with CESA, a Consistency Determination is issued to the applicant and no further authorization or approval is necessary under CESA.

If the Director determines, based on substantial evidence, that the federal statement/permit is not consistent with CESA, an Inconsistent Determination will be issued to the applicant and take may only be authorized pursuant to CESA (i.e., an incidental take permit  pursuant to section 2081(b) of the Fish and Game Code).

The Director will immediately have a notice of the determination (both consistent and inconsistent) published in the General Public Interest section of the California Regulatory Notice Register.

In order for CDFW to issue a Consistency Determination, the conditions specified in the federal incidental take statement or the federal incidental take permit must be consistent with CESA and meet the following criteria:

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.

If the Department determines that the federal statement/permit is not consistent with CESA, the applicant must apply for an incidental take permit pursuant to section 2081 subdivision (b) of the Fish and Game Code.

Consistency Determinations may only be issued for species that are listed under both the federal Endangered Species Act and CESA.

• State and/or Federally Listed Animal Species (PDF)
• State and/or Federally Listed Plant Species (PDF)

• The federal Endangered Species Act does not require full mitigation nor financial assurances to carry out mitigation, while CESA does.
• CDFW cannot add any conditions to a federal statement/permit to meet CESA's full mitigation standard.
• The federal statement/permit may not describe mitigation measures in enough detail to meet CESA standards.
• The federal Endangered Species Act does not prohibit the take of listed plants, while CESA does.

The best way to avoid an Inconsistency Determination is to coordinate with CDFW early in the federal permitting process. Contact the appropriate CDFW Regional Office in the location of the proposed project.