California Department of Fish and Wildlife

California Endangered Species Act (CESA)

2080.1 Consistency Determinations

Fish and Game Code Section 2080.1 states the requirements and procedures for a 2080.1 Consistency Determination. Section 2080.1 allows an applicant who has obtained a federal incidental take statement pursuant to a federal Section 7 consultation or a federal Section 10(a) incidental take permit to notify the Director in writing that the applicant has been issued an incidental take statement or an incidental take permit pursuant to the federal Endangered Species Act of 1973. The applicant must submit the federal opinion incidental take statement or permit to the CDFW Director for a determination as to whether the federal document is "consistent" with CESA. Receipt of the application by the Director starts a 30-day clock for processing the Consistency Determination.

In order for the Department to issue a Consistency Determination, the Department must determine that the conditions specified in the federal incidental take statement or the federal incidental take permit are consistent with CESA. If the Department determines that the federal statement/permit is not consistent with CESA, the applicant must apply for a State Incidental Take Permit under section 2081(b) of the Fish and Game Code.

The exception provided in Fish and Game Code section 2080.1 to CESA’s take prohibition can be used only for species that are listed under both federal Endangered Species Act and CESA, and cannot be applied to species that are listed by the State but not federally listed.

2081(b) permits are usually preferable to 2080.1 Consistency Determinations for the reasons listed below. Under a Consistency Determination:

  • We cannot add any conditions to the federal incidental take statement/permit or biological opinion to meet the full mitigation standard, and must accept it as is, if we determine it to be consistent,
  • Often the biological opinion does not contain enough details in decribing mitigation measures,
  • The federal standard for including plants is jeopardy,
  • If pertinent section of the Endangered Species Act change, Consistency Determination could become invalid, and we would have to issue 2081(b) permits for those projects.

If an application is submitted to the region without it first going to the Director, the Region should immediately contact the Habitat Conservation Planning Branch and the LAD to determine whether the notice was received in the Director’s office. If the application was received by the Director, the region should check with HCPB to see if a CESA Tracking Number has been assigned, and can begin processing the application. If it was not received by the Director, the region should immediately contact and tell the applicant that the application and appropriate documents must first be sent to the Director to allow processing to start. The Director’s Office, upon receipt of the application, will stamp the date received on the document and immediately forward it to HCPB for processing.

Regional responsibilities include: timely review of the application for a Consistency Determination (federal incidental take statement/biological opinion or federal incidental take permit) to determine if they are consistent or inconsistent with CESA; preparation of the Consistency Determination for the Deputy Director’s signature; preparation of a letter to the applicant indicating whether the determination is consistent or inconsistent; and preparation of the transmittal letter to the Deputy Director indicating the region’s conclusions.

Regional management must notify the Deputy Director of HCD at least five days prior to the end of the 30-day determination period of the intent to recommend an inconsistency determination. It must also explain to the applicant why the inconsistency is being recommended and allow the applicant to withdraw the 2080.1 request.

Headquarters (HCPB) responsibilities include: receipt of application for Consistency Determination sent to the Director and assigning a CESA Tracking Number; preparation and filing of a Notice of Public Interest with the Office of Administrative Law; and sending the application to the region for further processing. Following regional submittal of the completed Consistency or Inconsistency Determination, HCPB will review the documents for completeness, policy direction, and consistency with permitting standards, and will coordinate with LAD to insure statewide consistency with existing law and policy before delivering the Consistency Determination to LAD for approval. Headquarters will also provide training and assistance with procedures to Department employees that work with CESA permitting.