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Article 1. General Provisions of California Fish And Game Code >> Division 3. >> Chapter 1.5. >> Article 1.
This chapter shall be known and may be cited as the
California Endangered Species Act.
The Legislature hereby finds and declares all of the
following:
(a) Certain species of fish, wildlife, and plants have been rendered extinct as a consequence of man's activities, untempered by adequate concern and conservation.
(b) Other species of fish, wildlife, and plants are in danger of, or threatened with, extinction because their habitats are threatened with destruction, adverse modification, or severe curtailment, or because of overexploitation, disease, predation, or other factors.
(c) These species of fish, wildlife, and plants are of ecological, educational, historical, recreational, esthetic, economic, and scientific value to the people of this state, and the conservation, protection, and enhancement of these species and their habitat is of statewide concern.
(a) Certain species of fish, wildlife, and plants have been rendered extinct as a consequence of man's activities, untempered by adequate concern and conservation.
(b) Other species of fish, wildlife, and plants are in danger of, or threatened with, extinction because their habitats are threatened with destruction, adverse modification, or severe curtailment, or because of overexploitation, disease, predation, or other factors.
(c) These species of fish, wildlife, and plants are of ecological, educational, historical, recreational, esthetic, economic, and scientific value to the people of this state, and the conservation, protection, and enhancement of these species and their habitat is of statewide concern.
The Legislature further finds and declares that it is the
policy of the state to conserve, protect, restore, and enhance any
endangered species or any threatened species and its habitat and that
it is the intent of the Legislature, consistent with conserving the
species, to acquire lands for habitat for these species.
The Legislature further finds and declares that if any
provision of this chapter requires a person to provide mitigation
measures or alternatives to address a particular impact on a
candidate species, threatened species, or endangered species, the
measures or alternatives required shall be roughly proportional in
extent to any impact on those species that is caused by that person.
Where various measures or alternatives are available to meet this
obligation, the measures or alternatives required shall maintain the
person's objectives to the greatest extent possible consistent with
this section. All required measures or alternatives shall be capable
of successful implementation. This section governs the full extent of
mitigation measures or alternatives that may be imposed on a person
pursuant to this chapter. This section shall not affect the state's
obligations set forth in Section 2052.
The Legislature further finds and declares that it is the
policy of the state that state agencies should not approve projects
as proposed which would jeopardize the continued existence of any
endangered species or threatened species or result in the destruction
or adverse modification of habitat essential to the continued
existence of those species, if there are reasonable and prudent
alternatives available consistent with conserving the species or its
habitat which would prevent jeopardy.
Furthermore, it is the policy of this state and the intent of the
Legislature that reasonable and prudent alternatives shall be
developed by the department, together with the project proponent and
the state lead agency, consistent with conserving the species, while
at the same time maintaining the project purpose to the greatest
extent possible.
The Legislature further finds and declares that, in the event
specific economic, social, or other conditions make infeasible such
alternatives, individual projects may be approved if appropriate
mitigation and enhancement measures are provided.
The Legislature further finds and declares that it is the
policy of this state that all state agencies, boards, and commissions
shall seek to conserve endangered species and threatened species and
shall utilize their authority in furtherance of the purposes of this
chapter.
The Legislature further finds and declares that the
cooperation of the owners of land which is identified as habitat for
endangered species and threatened species is essential for the
conservation of those species and that it is the policy of this state
to foster and encourage that cooperation in furtherance of the
purposes of this chapter. Therefore, a landowner of property on which
an endangered, threatened, or candidate species lives shall not be
liable for civil damages for injury to employees of, or persons under
contract with, the department if the injury occurs while those
persons are conducting survey, management, or recovery efforts with
respect to those species.
The definitions in this article govern the construction of
this chapter.
"Conserve," "conserving," and "conservation" mean to use, and
the use of, all methods and procedures which are necessary to bring
any endangered species or threatened species to the point at which
the measures provided pursuant to this chapter are no longer
necessary. These methods and procedures include, but are not limited
to, all activities associated with scientific resources management,
such as research, census, law enforcement, habitat acquisition,
restoration and maintenance, propagation, live trapping, and
transplantation, and, in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved, may
include regulated taking.
"Endangered species" means a native species or subspecies of
a bird, mammal, fish, amphibian, reptile, or plant which is in
serious danger of becoming extinct throughout all, or a significant
portion, of its range due to one or more causes, including loss of
habitat, change in habitat, overexploitation, predation, competition,
or disease. Any species determined by the commission as "endangered"
on or before January 1, 1985, is an "endangered species."
"Feasible" means feasible as defined in Section 21061.1 of
the Public Resources Code.
"Project" means project as defined in Section 21065 of the
Public Resources Code.
"State lead agency" means the state agency, board, or
commission which is a lead agency under the California Environmental
Quality Act (Division 13 (commencing with Sec. 21000) of the Public
Resources Code).
"Threatened species" means a native species or subspecies of
a bird, mammal, fish, amphibian, reptile, or plant that, although not
presently threatened with extinction, is likely to become an
endangered species in the foreseeable future in the absence of the
special protection and management efforts required by this chapter.
Any animal determined by the commission as "rare" on or before
January 1, 1985, is a "threatened species."
"Candidate species" means a native species or subspecies of a
bird, mammal, fish, amphibian, reptile, or plant that the commission
has formally noticed as being under review by the department for
addition to either the list of endangered species or the list of
threatened species, or a species for which the commission has
published a notice of proposed regulation to add the species to
either list.
(a) For purposes of this section, the following terms have
the following meanings:
(1) "Desert Renewable Energy Conservation Plan" means the completed conservation plan in the Mojave and Colorado Desert regions adopted pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800)), and covers the geographical area described in the Draft Planning Agreement, as amended by, and among, the department, Energy Commission, United States Bureau of Land Management, and United States Fish and Wildlife Service for the Desert Renewable Energy Conservation Plan.
(2) "Energy Commission" means the State Energy Resources Conservation and Development Commission.
(b) The department, in consultation with the Energy Commission and, to the extent practicable, the United States Fish and Wildlife Service and the United States Bureau of Land Management, may design and implement actions, including the purchase of land and conservation easements, to protect, restore, or enhance the habitat of plants and wildlife that can be used to fully mitigate the impacts of the take of endangered species, threatened species, or candidate species, for purposes of paragraph (2) of subdivision (b) of Section 2081 and Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code, resulting from solar thermal, photovoltaic, wind, and geothermal powerplants in the Desert Renewable Energy Conservation Plan planning area that meet either of the following requirements:
(1) Either the Energy Commission determines that the application for certification is complete by December 31, 2011, or the lead agency for purposes of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) has determined the project permit application is complete or has issued a notice of preparation of an environmental impact report by December 31, 2011.
(2) The developer or owner of the proposed powerplant or generation facility has applied for, and would qualify for, funding under the federal American Recovery and Reinvestment Act of 2009 (Public Law 111-5). For purposes of this paragraph, "funding" means a loan guarantee made pursuant to Section 406 of the act (42 U.S.C. Sec. 16516) or a grant for specified energy property in lieu of a tax credit provided pursuant to Section 1603 of Division B of the act, which division is titled the American Recovery and Reinvestment Tax Act of 2009.
(c) A mitigation action may only be used for the mitigation purposes described in subdivision (b) if it meets one of the following conditions:
(1) The department has implemented the mitigation action and determined that the action has resulted in the protection, restoration, or enhancement of the habitat of one or more species that are proposed to be covered by the Desert Renewable Energy Conservation Plan, and that are located in the planning area, and, based upon that determination, can be used, for purposes of paragraph (2) of subdivision (b) of Section 2081, to fully mitigate for the impacts of the take of those species from one or more projects that meet the requirement of subdivision (b).
(2) The mitigation action is included in an interim mitigation strategy for projects that meet the requirement of subdivision (b). An interim mitigation strategy pursuant to this paragraph shall be developed by the department, in consultation with the Energy Commission and, to the extent practicable, the United States Fish and Wildlife Service and the United States Bureau of Land Management, and shall include all of the following:
(A) A description of specific mitigation areas and specific actions on public or private land within the Desert Renewable Energy Conservation Plan planning area that are to be implemented, including a focus on habitat preservation, while also including enhancement or restoration actions that will do all of the following:
(i) Contribute to the conservation of each candidate species, threatened species, or endangered species for which a permit is issued.
(ii) Adopt a regional planning perspective that provides a foundation for, or that will complement, any conservation strategy to be developed for the Desert Renewable Energy Conservation Plan.
(iii) Implement mitigation actions within a reasonable period of time relative to the impact to the affected candidate species, threatened species, or endangered species, including, where feasible, advance mitigation. For purposes of this clause, "advance mitigation" means mitigation implemented before, and in anticipation of, future impacts to natural resources.
(iv) Include a description of the species that would be benefited by each mitigation action and how it would be benefited.
(B) A cost estimate for each action, whether on public or private land, using total cost accounting, including, as applicable, land acquisition costs, conservation easement costs, monitoring costs, transaction costs, restoration costs, the amount of a perpetual endowment account for land management or easement stewardship costs by the department or other management entity, and administrative costs.
(d) The interim mitigation strategy shall be based on best available science and shall be reviewed by the Desert Renewable Energy Conservation Plan independent science advisers. The department shall seek and consider comments from the Desert Renewable Energy Conservation Plan independent science advisers in the design and location of each mitigation action implemented pursuant to this section. If the department elects to not incorporate comments of the independent science advisers into mitigation actions, the department shall explain the reasons for that decision in writing.
(e) The interim mitigation strategy shall be completed by the department no later than 60 days following the operative date of the act adding this section.
(f) (1) This section does not modify the requirements of Section 2081, including the requirement to avoid and minimize impacts, where feasible, or the requirements of Division 13 (commencing with Section 21000) of, or Chapter 6 (commencing with Section 25500) of Division 15 of, the Public Resources Code, or affect the existing authority of the department to authorize mitigation actions to comply with this chapter.
(2) With respect to the Energy Commission, in the case of an applicant seeking certification for a solar thermal or geothermal powerplant pursuant to Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code, or a lead agency, as defined in Section 21067 of the Public Resources Code, in the case of an applicant seeking approval of a renewable energy powerplant not subject to the Energy Commission's jurisdiction, the sole effect of a mitigation action described in subdivision (c), and paid for through the deposit of fees as described in Section 2099, is to relieve an applicant of the obligation to directly take actions that are taken instead by the department or its contractor or designee pursuant to subdivision (b) to meet the applicant's obligations with respect to mitigating the powerplant's impacts to species and habitat. The mitigation action and deposit of fees shall not relieve the applicant of any other obligation, or the Energy Commission or the lead agency of any of its existing requirements of Division 13 (commencing with Section 21000) of, or the requirements of Chapter 6 (commencing with Section 25500) of Division 15 of, the Public Resources Code to analyze, avoid, minimize, or mitigate impacts to species and habitat, or make the findings required by those statutes.
(g) The mitigation actions implemented pursuant to this section shall be incorporated into the Desert Renewable Energy Conservation Plan upon the finalization of the plan, to the extent the mitigation actions are consistent with the plan's conservation strategy.
(1) "Desert Renewable Energy Conservation Plan" means the completed conservation plan in the Mojave and Colorado Desert regions adopted pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800)), and covers the geographical area described in the Draft Planning Agreement, as amended by, and among, the department, Energy Commission, United States Bureau of Land Management, and United States Fish and Wildlife Service for the Desert Renewable Energy Conservation Plan.
(2) "Energy Commission" means the State Energy Resources Conservation and Development Commission.
(b) The department, in consultation with the Energy Commission and, to the extent practicable, the United States Fish and Wildlife Service and the United States Bureau of Land Management, may design and implement actions, including the purchase of land and conservation easements, to protect, restore, or enhance the habitat of plants and wildlife that can be used to fully mitigate the impacts of the take of endangered species, threatened species, or candidate species, for purposes of paragraph (2) of subdivision (b) of Section 2081 and Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code, resulting from solar thermal, photovoltaic, wind, and geothermal powerplants in the Desert Renewable Energy Conservation Plan planning area that meet either of the following requirements:
(1) Either the Energy Commission determines that the application for certification is complete by December 31, 2011, or the lead agency for purposes of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) has determined the project permit application is complete or has issued a notice of preparation of an environmental impact report by December 31, 2011.
(2) The developer or owner of the proposed powerplant or generation facility has applied for, and would qualify for, funding under the federal American Recovery and Reinvestment Act of 2009 (Public Law 111-5). For purposes of this paragraph, "funding" means a loan guarantee made pursuant to Section 406 of the act (42 U.S.C. Sec. 16516) or a grant for specified energy property in lieu of a tax credit provided pursuant to Section 1603 of Division B of the act, which division is titled the American Recovery and Reinvestment Tax Act of 2009.
(c) A mitigation action may only be used for the mitigation purposes described in subdivision (b) if it meets one of the following conditions:
(1) The department has implemented the mitigation action and determined that the action has resulted in the protection, restoration, or enhancement of the habitat of one or more species that are proposed to be covered by the Desert Renewable Energy Conservation Plan, and that are located in the planning area, and, based upon that determination, can be used, for purposes of paragraph (2) of subdivision (b) of Section 2081, to fully mitigate for the impacts of the take of those species from one or more projects that meet the requirement of subdivision (b).
(2) The mitigation action is included in an interim mitigation strategy for projects that meet the requirement of subdivision (b). An interim mitigation strategy pursuant to this paragraph shall be developed by the department, in consultation with the Energy Commission and, to the extent practicable, the United States Fish and Wildlife Service and the United States Bureau of Land Management, and shall include all of the following:
(A) A description of specific mitigation areas and specific actions on public or private land within the Desert Renewable Energy Conservation Plan planning area that are to be implemented, including a focus on habitat preservation, while also including enhancement or restoration actions that will do all of the following:
(i) Contribute to the conservation of each candidate species, threatened species, or endangered species for which a permit is issued.
(ii) Adopt a regional planning perspective that provides a foundation for, or that will complement, any conservation strategy to be developed for the Desert Renewable Energy Conservation Plan.
(iii) Implement mitigation actions within a reasonable period of time relative to the impact to the affected candidate species, threatened species, or endangered species, including, where feasible, advance mitigation. For purposes of this clause, "advance mitigation" means mitigation implemented before, and in anticipation of, future impacts to natural resources.
(iv) Include a description of the species that would be benefited by each mitigation action and how it would be benefited.
(B) A cost estimate for each action, whether on public or private land, using total cost accounting, including, as applicable, land acquisition costs, conservation easement costs, monitoring costs, transaction costs, restoration costs, the amount of a perpetual endowment account for land management or easement stewardship costs by the department or other management entity, and administrative costs.
(d) The interim mitigation strategy shall be based on best available science and shall be reviewed by the Desert Renewable Energy Conservation Plan independent science advisers. The department shall seek and consider comments from the Desert Renewable Energy Conservation Plan independent science advisers in the design and location of each mitigation action implemented pursuant to this section. If the department elects to not incorporate comments of the independent science advisers into mitigation actions, the department shall explain the reasons for that decision in writing.
(e) The interim mitigation strategy shall be completed by the department no later than 60 days following the operative date of the act adding this section.
(f) (1) This section does not modify the requirements of Section 2081, including the requirement to avoid and minimize impacts, where feasible, or the requirements of Division 13 (commencing with Section 21000) of, or Chapter 6 (commencing with Section 25500) of Division 15 of, the Public Resources Code, or affect the existing authority of the department to authorize mitigation actions to comply with this chapter.
(2) With respect to the Energy Commission, in the case of an applicant seeking certification for a solar thermal or geothermal powerplant pursuant to Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code, or a lead agency, as defined in Section 21067 of the Public Resources Code, in the case of an applicant seeking approval of a renewable energy powerplant not subject to the Energy Commission's jurisdiction, the sole effect of a mitigation action described in subdivision (c), and paid for through the deposit of fees as described in Section 2099, is to relieve an applicant of the obligation to directly take actions that are taken instead by the department or its contractor or designee pursuant to subdivision (b) to meet the applicant's obligations with respect to mitigating the powerplant's impacts to species and habitat. The mitigation action and deposit of fees shall not relieve the applicant of any other obligation, or the Energy Commission or the lead agency of any of its existing requirements of Division 13 (commencing with Section 21000) of, or the requirements of Chapter 6 (commencing with Section 25500) of Division 15 of, the Public Resources Code to analyze, avoid, minimize, or mitigate impacts to species and habitat, or make the findings required by those statutes.
(g) The mitigation actions implemented pursuant to this section shall be incorporated into the Desert Renewable Energy Conservation Plan upon the finalization of the plan, to the extent the mitigation actions are consistent with the plan's conservation strategy.
