Nearly every project in California must be evaluated to see if it will affect any species of fish, wildlife or plants protected under the Federal Endangered Species Act (FESA) and the California Endangered Species Act (CESA). It is not uncommon for a species to be listed under both laws, and, in such instances, both need to be satisfied. Applying to both federal and state agencies for permission to "take" protected species can be a tedious and time-consuming process, often fraught with duplication and inefficiencies.
Fortunately, CESA recognizes this problem. While a landowner may choose to apply for incidental take permits under both CESA and FESA, CESA allows for a streamlined permitting process to obtain state incidental take authorization if such take is already authorized under FESA. This process – known as a "consistency determination" – requires the California Department of Fish and Game (DFG) to review the federal authorization to determine whether it is "consistent" with CESA. Specifically, the law waives the state incidental take permit requirements so long as the applicant provides to DFG (1) written notification that the applicant holds a federal incidental take permit or incidental take statement (accompanying a biological opinion) and (2) a copy of the authorization. Under California Fish and Game Code section 2080.1, the applicant is allowed to commence activities immediately after submitting these documents. DFG is required to provide public notice of receipt of the documents and has 30 days to determine if they are consistent with CESA. If there is consistency, DFG cannot require a state permit, and the project may proceed under the federal authorization.
A consistency determination is not a permit, but instead a recognition of reliance on a federal authorization that satisfies the requirements of CESA. For this reason, DFG cannot add conditions to the federal incidental take permit or biological opinion to meet CESA requirements, but instead must accept it "as is" for the purposes of determining consistency. If additional conditions are necessary, no consistency determination can be issued. Consistency determinations are increasingly sought as developers and landowners look for ways to streamline the burdensome approval process for projects. Public agencies and local jurisdictions also rely on them for large-scale projects.
The valuable streamlining role of consistency determinations was solidified in a recent Sacramento County Superior Court decision of first impression, Center for Biological Diversityv.California Department of Fish & Game. At issue was DFG’s consistency determination for the marbled murrelet, a bird listed under CESA and FESA, based on the Pacific Lumber Company’s federal incidental take permit for the species. The Center claimed that DFG acted improperly in issuing the determination, arguing the determination was a project requiring review under the California Environmental Quality Act (CEQA).
The Court rejected the argument, concluding that a consistency determination is merely an agency determination of conformity with relevant statutes and regulations rather than a "discretionary" project triggering review under CEQA. This is supported by section 2080.1, which allows applicants to begin their project as soon as the documents are submitted to DFG. The law also provides a 30-day period for DFG to issue a consistency determination, which does not give the agency enough time for CEQA analysis. Moreover, construing a consistency determination to require CEQA review would undermine its streamlining purpose, which the Legislature expressly recognized in 1997 when it authorized consistency determinations to provide relief from the "duplicative permit process" of having to get permits under both CESA and FESA.
The Court rightly concluded that consistency determinations do not require CEQA review. Requiring CEQA review would greatly increase costs and 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. Consistency determinations remain a valuable tool for landowners and local jurisdictions for streamlining permitting and approval of projects.
Cal. Fish & Game Code § 2080.1
Ctr. for Biological Diversityv.Cal.Dep’t of Fish & Game (Sacramento Superior Court Case No. 05CS01166)
Cal. Code Regs. tit. 14, § 15357