On October 28, 2005, the Sacramento County Superior Court decided, in a case of first impression, that a "consistency determination" by the Department of Fish and Game ("DFG") is not a "discretionary" project triggering the environmental review requirements of the California Environmental Quality Act ("CEQA").  In Center for Biological Diversity v. California Department of Fish and Game, Case No. 05CS01166, the Center for Biological Diversity brought suit challenging DFG’s consistency determination for the marbled murrelet, a bird listed as endangered under the California Endangered Species Act ("CESA") and as threatened under the federal Endangered Species Act ("FESA").  DFG’s determination was based on The Pacific Lumber Company’s Incidental Take Permit ("ITP") for the species, issued under section 10 of FESA.  CESA section 2080.1 provides for DFG to determine that federal ITPs (or incidental take statements associated with biological opinions issued following FESA section 7 consultation) suffice for state incidental take authorization, so that a permittee can rely on the federal authorization to provide "coverage" for its activities that incidentally take species also listed under CESA.  The federal authorization suffices for state incidental take authorization if DFG determines its provisions are "consistent" with CESA’s criteria for issuance of state ITPs, set forth in section 2081(b) of CESA.

The Legislature passed section 2080.1 in 1997, authorizing DFG to make consistency determinations, in order to provide relief from the "duplicative permit process" then in place, under which a party having authorization under the FESA to incidentally take a species also listed under CESA would have to make a separate application to DFG for a state incidental take permit.  The legislation was supported by a wide array of private and public entities concerned about delays and inefficiencies in the CESA permitting process.  Under section 2080.1, a party can commence an activity that may result in incidental take as soon as it submits an application for a consistency determination.  Cal. Fish and Game Code section 2080.1(a).  Further evidencing its streamlining purpose, the statute provides DFG 30 days to determine if the federal incidental take authorization is consistent with CESA.  Id.  Since enactment of section 2080.1, DFG has not conducted CEQA review for consistency determinations.

The implications of CBD’s suit, and the Sacramento County Superior Court’s decision, for DFG’s consistency determination process go far beyond timber harvesting, the activity for which incidental take authorization was sought in the case.  Consistency determinations are relied on by developers to streamline the process for obtaining incidental take authorization under CESA.  Public entities also rely on consistency determinations for projects ranging from wastewater conveyance to flood control to transportation infrastructure.  Judicial acceptance of CBD’s argument that a consistency determination triggers CEQA review would greatly add to the costs and time delays for construction of important public projects at a time when state and local government budgets are tight, to say nothing of the costs and delays that would be imposed on private development projects.  Such a ruling would surely have spawned suits making the same claim by opponents of development projects across the state.

Morrison & Foerster represented The Pacific Lumber Company, the Real Party in Interest in the case decided by the Sacramento County Superior Court.  For more information about the case, please call one of the authors listed above.