If a project will result in state-defined take, as defined in Fish and Game Code 86 (hunt, pursue, capture, catch, or kill, or attempt to do so), of a species that is listed under both the federal Endangered Species Act and the California Endangered Species Act (CESA), Fish and Game Code section 2080.1 allows an applicant who has obtained a federal incidental take statement (federal Section 7 consultation) or a federal incidental take permit (federal Section 10(a)(1)(B)) to request that the Director of CDFW find the federal documents consistent with CESA. If the federal documents are found to be consistent with CESA, a consistency determination (CD) is issued, and no further authorization or approval is necessary under CESA.
CDFW is working with the National Oceanic and Atmospheric Administration (NOAA) Fisheries Restoration Center and the U.S. Fish and Wildlife Service to develop a new process for issuing CDs for restoration projects (Restoration CDs) that have received approvals pursuant to a federal programmatic biological opinion (PBO) for restoration. This process involves CDFW’s “pre-approval” of restoration PBOs to ensure general consistency with CESA coupled with an expedited review of project-specific applications. Under this process, conflicts between CESA and the PBO are resolved at the front end, resulting in an expedited CD process that focuses solely on project-specific review of a federal application for consistency with the PBO. Through this effort, CDFW has also confirmed its ability to issue CDs on project-specific biological opinions covering restoration projects.
Under existing law, CDs for voluntary restoration projects are exempt from CESA fees (Fish and Game Code 2081.2(b)(2)(C)). As defined in Fish and Game Code 2081.2 (a)(6)(A-B), “Voluntary habitat restoration project” means a project of which the primary purpose is voluntary habitat restoration, and is not part of a regulatory settlement, a regulatory enforcement action, or a court order.