Both the CEQA Lead Agency and the California Department of Fish and Wildlife (CDFW) have specific roles under SERP. For a project to qualify, the CEQA Lead Agency must first make its own independent determination that the statutory exemption applies. Once the CEQA Lead Agency has done so, it must then seek concurrence from the CDFW Director that the project meets the qualifying criteria set forth in subdivisions (a) to (d), inclusive, of Public Resources Code section 21080.56. The Director’s concurrence must be based on substantial evidence and best available science.
Public Resources Code section 21080.56.
(a) This division does not apply to a project that is exclusively one of the following:
(1) A project to conserve, restore, protect, or enhance, and assist in the recovery of California native fish and wildlife, and the habitat upon which they depend.
(2) A project to restore or provide habitat for California native fish and wildlife.
(b) An eligible project may have incidental public benefits, such as public access and recreation.
(c) This section does not apply to a project unless the project does both of the following:
(1) Results in long-term net benefits to climate resiliency, biodiversity, and sensitive species recovery.
(2) Includes procedures and ongoing management for the protection of the environment.
(d) This section does not apply to a project that includes construction activities, except for construction activities solely related to habitat restoration.
(e) The lead agency shall obtain the concurrence of the Director of Fish and Wildlife for the determinations required pursuant to subdivisions (a) to (d), inclusive. The director shall document the director’s concurrence using substantial evidence and best available science.
(f) The project shall remain subject to all other applicable federal, state and local laws and regulations, and shall not weaken or violate any applicable environmental or public health standards.
(g) Within 48 hours of making a determination that a project is exempt pursuant to this section, a lead agency shall file a notice described in subdivision (b) of Section 21108 or subdivision (b) of Section 21152 with the Office of Planning and Research, and the Department of Fish and Wildlife shall post the concurrence of the Director of Fish and Wildlife on the department’s internet website.
(h) The Natural Resources Agency shall, in accordance with Section 9795 of the Government Code, report annually to the Legislature all determinations pursuant to this section.
(i) This section shall remain in effect only until January 1, 2025, and as of that date is repealed.
Pre-Concurrence Lead Agency Consultation with CDFW
CDFW highly recommends that lead agencies consult with CDFW staff early in the planning process before a formal concurrence request is submitted to CDFW. SERP consultation meetings provide opportunities to discuss project objectives, help avoid unnecessary delays in the concurrence process, and assist lead agencies with development of SERP determinations to support the CDFW Director’s SERP concurrence. Lead agency consultation with CDFW before a formal SERP concurrence request is submitted will facilitate productive dialogue, reduce uncertainty, help to allocate resources efficiently, and best prepare both lead agencies and CDFW ahead of the formal SERP concurrence request process.
During SERP consultations, CDFW may suggest to the lead agency that additional meetings be scheduled to further discuss the project, including to answer lead agency questions and/or for CDFW staff to provide more detailed input regarding the project and the expected request for CDFW Director concurrence. Whenever possible, consultation meetings will include both CGT program and regional CGT staff. In addition, CDFW may suggest during consultation that the lead agency's expected SERP determination would benefit from or be strengthened by additional supporting analysis or information regarding, among other things, project designs, background biological information, or modeling results. CDFW expects the consultation process will be an excellent opportunity to refine project objectives and to discuss the expected beneficial outcomes for fish and wildlife species and their habitats.
To request a SERP consultation, send an email to: firstname.lastname@example.org
Engagement with Interested Parties and Environmental Protection
The new CEQA statutory exemption for restoration projects in Public Resources Code section 21080.56 is a historical milestone that, consistent with CDFW’s trustee mandate, will play a significant role in California’s effort to increase the pace and scale of restoration projects benefitting fish and wildlife across the State. Consistent with these broader objectives and the important policies served by CEQA, CDFW encourages lead agencies considering projects that may be SERP eligible to actively engage with interested and affected parties, California Native American tribes, and public agencies and to advance projects designed to prevent, avoidable damage to the environment across the resource spectrum. These core values are a cornerstone of and essential to the successful implementation of this historic statutory exemption to increase the pace and scale of restoration in California. CEQA is to foster an informed and transparent public decision-making process by providing information to decisionmakers and the public about the potential environmental effects of proposed activities and to prevent significant, avoidable environmental effects. CDFW encourages and supports lead agency efforts to meet and confer with local advocacy groups, neighbors, affected public agencies, elected officials, and California Native American tribes prior to submitting a SERP request to CDFW.
Any restoration project on private or public land in California that meets the qualifying criteria in Public Resources Code Section 21080.56, subdivisions (a) to (d), inclusive, may be eligible for a SERP concurrence by the CDFW Director. This includes, among other projects, voluntary habitat restoration and species recovery projects, and restoration projects that may be required by law, provided the project meets the qualifying statutory criteria. All CDFW Director concurrences will be issued directly to the CEQA lead agency who made the request and is proposing in its independent judgment and discretion to carry out or approve the restoration project. CDFW Director concurrences will only issue based on the best available science and supported by substantial evidence.
Additional Permitting Considerations
While section 21080.56 provides an exemption from CEQA, it does not exempt eligible restoration projects from any other required local, state, or federal permits. Examples include a county grading permit, authorization by CDFW (e.g., Lake or Streambed Alteration Agreement, California Endangered Species Act take authorization), California Coastal Act, U.S. Fish and Wildlife Service or National Marine Fisheries Service take authorization, or Clean Water Act section 401 or 404 permits. The project proponent is responsible for obtaining all necessary permits and authorizations from CDFW and other agencies before beginning any project that may be eligible for this exemption. (Pub. Resources Code, § 21080.56, subd. (f).)