California Department of Fish and Wildlife

California Endangered Species Act (CESA)

Sections 2081 (b) and (c) - Incidental Take Permit Process

Black Toad

Sections 2081(b) and (c) of the California Endangered Species Act allow the Department to issue an incidental take permit for a State listed threatened and endangered species only if specific criteria are met. These criteria are reiterated in Title 14 CCR, Sections 783.4(a) and (b), and are as follows:

  1. The authorized take is incidental to an otherwise lawful activity;
  2. The impacts of the authorized take are minimized and fully mitigated;
  3. The measures required to minimize and fully mitigate the impacts of the authorized take:
    a. are roughly proportional in extent to the impact of the taking on the species,
    b. maintain the applicant’s objectives to the greatest extent possible, and
    c. are capable of successful implementation;
  4. Adequate funding is provided to implement the required minimization and mitigation measures and to monitor compliance with and the effectiveness of the measures; and
  5. Issuance of the permit will not jeopardize the continued existence of a State-listed species.

The terms and conditions of the permit will be determined by the Department and must ensure that the issuance criteria in items 1 through 5 above are met.

Measures to minimize the take of species covered by the permit (Covered Species) and to mitigate the impacts caused by the take will be set forth in one or more attachments to the permit. This attachment will generally be a mitigation plan (possibly a Habitat Conservation Plan) prepared and submitted by the Permittee in coordination with Department staff.

The mitigation plan should identify measures to avoid and minimize the take of State-listed species and to fully mitigate the impact of that take. These measures can vary from project to project. Some of the measures used in the past include: delineation of construction sites; take avoidance measures tailored to the affected species; preconstruction notification of the Department; employee education programs; reporting procedures when an animal is killed, injured or trapped; compliance inspections and reports; acquisition and transfer of habitat management lands; and associated funding (including money for document processing and for initial protection (e.g., fencing, posting, clean-up), and endowments for management of the lands in perpetuity). This list can serve as a partial inventory of measures that may be used to minimize and mitigate take, but these are not mandatory requirements and the list is not inclusive of all potential measures. Applicants may propose alternative strategies for minimizing and fully mitigating impacts. The Department must be able to conclude, however, that the project’s impacts are fully mitigated and the measures, when taken in aggregate, must meet the full mitigation standard.

If all mitigation and monitoring will not be completed prior to the start of activities that will affect State-listed species, a trust account or other form of security acceptable to the Department shall be established to ensure that funding is available to carry out mitigation measures and monitoring requirements in the event the applicant fails to complete these activities. The Department generally requires that security be in the form of a bank trust (or escrow) account, an irrevocable letter of credit, or similar form of security approved by the Legal Affairs Division (LAD).

No Section 2081(b) permit may authorize the take of "fully protected" species and "specified birds" (Fish and Game Code Sections 3505, 3511, 4700, 5050, 5515, and 5517). If a project is planned in an area where a fully protected species or a specified bird occurs, an applicant must design the project to avoid all take; the Department cannot provide take authorization for the species under CESA.

Complete requirements and procedures for CESA Incidental Take Permits are found in CCR Title 14, Sections 783.0 - 783.8 as follows:

Purpose and Scope of Regulations Section 783.0
Prohibitions Section 783.1
Incidental Take Applications Section 783.2
Compliance with the California Environmental Quality Act Section 783.3
Incidental Take Permit Review Standards Section 783.4
Incidental Take Permit Process Section 783.5
General Permit Conditions Section 783.6
Permit Suspension and Revocation Section 783.7
Reconsideration and Appeal Procedures Section 783.8

The Incidental Take Permit process is normally initiated in the Region where the permitted activity will take place by contacting the appropriate Regional Office. Regional responsibilities also include: calling HCPB to get a CESA Tracking Number upon receipt of an Incidental Take Permit; reviewing the Incidental Take Permit Application to ensure it is complete; providing an acceptance letter to the applicant; working with the applicant in developing and preparing the Incidental Take Permit; preparing the CEQA Findings, the Mitigation Monitoring and Reporting Plan, and the Notice of Determination; and sending all along with the appropriate transmittal correspondence and signed CESA Tracking Surname Cover Sheet to the Chief, HCPB.

Headquarters responsibilities include assigning CESA Tracking Numbers, and following Regional submittal, HCPB will provide general review of the Incidental Take Permit Application for completeness, policy direction, and consistency with permitting standards. HCPB will coordinate with the LAD to insure statewide consistency with existing law and policy before delivering the Incidental Take Permit and the signed CESA Tracking Surname Cover Sheet to the LAD for their approval. The CESA Incidental Take Permit will be approved and signed by the Deputy Director of HCD after review by LAD. Headquarters will also provide training and assistance with procedures and policy issues to Department employees that work with CESA permitting.