Code Section Group

Fish and Game Code - FGC

DIVISION 3. FISH AND GAME GENERALLY [2000 - 2945]

  ( Division 3 enacted by Stats. 1957, Ch. 456. )

CHAPTER 1.5. Endangered Species [2050 - 2089.25]

  ( Chapter 1.5 repealed and added by Stats. 1984, Ch. 1240, Sec. 2. )

ARTICLE 3. Taking, Importation, Exportation, or Sale [2080 - 2085]
  ( Article 3 added by Stats. 1984, Ch. 1240. )

2080.
  

No person or public agency shall import into this state, export out of this state, or take, possess, purchase, or sell within this state, any species, or any part or product thereof, that the commission determines to be an endangered species or a threatened species, or attempt any of those acts, except as otherwise provided in this chapter, the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of this code), or the California Desert Native Plants Act (Division 23 (commencing with Section 80001) of the Food and Agricultural Code).

(Amended by Stats. 2018, Ch. 329, Sec. 9. (SB 473) Effective January 1, 2019.)

2080.1.
  

(a) Notwithstanding any other provision of this chapter, or Chapter 10 (commencing with Section 1900) or Chapter 11 (commencing with Section 1925) of Division 2, but subject to subdivision (c), if any person obtains from the United States Secretary of the Interior or the United States Secretary of Commerce an incidental take statement pursuant to Section 7 of the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1536) or an incidental take permit pursuant to Section 10 of that federal act (16 U.S.C. Sec. 1539) that authorizes the taking of an endangered species or a threatened species that is listed pursuant to Section 4 of that federal act (16 U.S.C. Sec. 1533) and that is an endangered species, threatened species, or a candidate species pursuant to this chapter, no further authorization or approval is necessary under this chapter for that person to take that endangered species, threatened species, or candidate species identified in, and in accordance with, the incidental take statement or incidental take permit, if that person does all of the following:

(1) Notifies the director in writing that the person has received an incidental take statement or an incidental take permit issued pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).

(2) Includes in the notice to the director a copy of the incidental take statement or incidental take permit.

(3) Includes with the notice payment of the permit application fee required pursuant to Section 2081.2.

(b) Upon receipt of the notice specified in paragraph (1) of subdivision (a), the director shall immediately have published in the General Public Interest section of the California Regulatory Notice Register the receipt of that notice.

(c) Within 30 days after the director has received the notice described in subdivision (a) that an incidental take statement or an incidental take permit has been issued pursuant to the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.), the director shall determine whether the incidental take statement or incidental take permit is consistent with this chapter. If the director determines within that 30-day period, based upon substantial evidence, that the incidental take statement or incidental take permit is not consistent with this chapter, then the taking of that species may only be authorized pursuant to this chapter.

(d) The director shall immediately publish the determination pursuant to subdivision (c) in the General Public Interest section of the California Regulatory Notice Register.

(e) Unless deleted or extended by a later enacted statute that is chaptered before the date this section is repealed, this section shall remain in effect only until, and is repealed on, the effective date of an amendment to Section 7 or Section 10 of the federal Endangered Species Act of 1973 (16 U.S.C. Secs. 1536 and 1539) that alters the requirements for issuing an incidental take statement or an incidental take permit, as applicable.

(Amended by Stats. 2018, Ch. 329, Sec. 10. (SB 473) Effective January 1, 2019. Repealed conditionally by its own provisions.)

2080.2.
  

The Legislature finds and declares the following:

(a) The historic settlement approved by Congress in the San Joaquin River Restoration Settlement Act (Part I of Subtitle A of Title X of Public Law 111-11) directs the federal government to reintroduce spring run Chinook salmon to the San Joaquin River. In approving the settlement and the new statutory provisions governing the reintroduction of California central valley spring run Chinook salmon, Congress found that the implementation of the settlement, to resolve 18 years of contentious litigation regarding restoration of the San Joaquin River and the reintroduction of the salmon, was a unique and unprecedented circumstance. The settlement also provides that nothing in the settlement diminishes the statutory or regulatory protections under the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.) nor does it establish a precedent with respect to any other application of the federal act.

(b) Central valley spring run Chinook salmon have been listed since 1999 as a threatened species under this chapter and were still listed as of January 1, 2011.

(c) Restoring spring run Chinook salmon to the San Joaquin River is intended to further the conservation and recovery of the species.

(d) Consistent with the unique and historic circumstances that led to the settlement, nothing in Section 2080.2, 2080.3, or 2080.4 is intended to create any precedent as to future application of this chapter, nor do Sections 2080.2, 2080.3, or 2080.4 otherwise modify other existing statutes or legal obligations.

(Added by Stats. 2010, Ch. 291, Sec. 1. (SB 1349) Effective January 1, 2011.)

2080.3.
  

(a) Notwithstanding any other provision of this chapter, if any person obtains from the Secretary of Commerce an enhancement of survival permit pursuant to Section 1539(a)(1)(A) of Title 16 of the United States Code that authorizes the taking of spring run Chinook salmon (Oncorhynchus tshawytscha) in order to establish or maintain an experimental population in the San Joaquin River pursuant to subsection (j) of that section and the San Joaquin River Restoration Settlement Act (Part I of Subtitle A of Title X of Public Law 111-11), no further authorization or approval is necessary under this chapter for that person to take that species as identified in, and in accordance with, the enhancement of survival permit, if all of the following requirements are met:

(1) That person shall notify the director in writing that the person has received an enhancement of survival permit and include in the notification a copy of the permit.

(2) Upon receipt of the notice specified in paragraph (1) of subdivision (c), the director shall immediately have the notice published in the General Public Interest section of the California Regulatory Notice Register.

(3) Within 30 days after the director has received the notice specified in paragraph (1), the director shall determine whether the enhancement of survival permit will further the conservation of the species. As used in this paragraph, “conservation” has the same meaning as defined in Section 2061.

(4) The director shall immediately have the determination pursuant to paragraph (3) published in the General Public Interest section of the California Regulatory Notice Register.

(b) The timing and extent of a take authorization under this section shall be limited to the terms in the federal enhancement of survival permit and shall expire upon the expiration of the federal permit.

(c) This section shall remain in effect only until the effective date of an amendment to Section 1539 of Title 16 of the United States Code that alters the requirements for issuing an enhancement of survival permit, as applicable, and as of that date is repealed, unless a later enacted statute, that is chaptered before the date this section is repealed, deletes or extends that date.

(Added by Stats. 2010, Ch. 291, Sec. 2. (SB 1349) Effective January 1, 2011. Repealed conditionally by its own provisions.)

2080.4.
  

(a) If a population of spring run Chinook salmon in the San Joaquin River is designated as an experimental population under subsection (j) of Section 1539 of Title 16 of the United States Code, no further authorization or approval is necessary under this chapter for any person to incidentally take members of that experimental population, if all of the following requirements are met:

(1) The Secretary of Commerce has published regulations in the Federal Register specifying management restrictions, protective measures, prohibitions, and exceptions to the prohibitions for the designated experimental population of spring run Chinook salmon in the San Joaquin River.

(2) The director has determined, in writing, that the management restrictions, protective measures, prohibitions and exceptions to prohibitions contained in the regulations specified in paragraph (1) meet the requirements in subdivision (b).

(3) The action or activity that results in incidental take of the designated experimental population is authorized by the regulations published in the Federal Register.

(b) The director shall issue the determination described in paragraph (2) of subdivision (a), if the director finds that the federal regulations described in paragraph (1) of subdivision (a) meet all of the following criteria:

(1) The federal regulations will further the conservation of the spring run Chinook salmon. As used in this paragraph, “conservation” has the same meaning as defined in Section 2061.

(2) The federal regulations contain all reasonably feasible measures to avoid and minimize the impacts of any taking allowed by the regulation.

(3) The federal regulations will not jeopardize the continued existence or recovery of spring run Chinook salmon, and will not jeopardize the restoration of spring run Chinook salmon in the San Joaquin River.

(c) If the director determines that the federal regulations described in paragraph (1) of subdivision (a) are not consistent with this chapter, or if the action or activity that results in incidental take is not authorized in those federal regulations, then the incidental take of members of the designated experimental population may only be authorized pursuant to this chapter.

(d) The director shall publish the determination, pursuant to paragraph (2) of subdivision (a), and subdivision (b), in the General Public Interest section of the California Regulatory Notice Register.

(Added by Stats. 2010, Ch. 291, Sec. 3. (SB 1349) Effective January 1, 2011.)

2080.5.
  

(a) Notwithstanding any other provision of this chapter, if any person obtains from the Secretary of Commerce or the Secretary of the Interior an enhancement of survival permit pursuant to Section 1539(a)(1)(A) of Title 16 of the United States Code that authorizes the taking of an endangered species or a threatened species that is listed pursuant to Section 1533 of Title 16 of the United States Code and that is an endangered species, threatened species, or candidate species pursuant to this chapter in order to establish or maintain an experimental population, no further authorization or approval is necessary under this chapter for that person to take that endangered species, threatened species, or candidate species identified in, and in accordance with, the enhancement of survival permit, if all of the following requirements are met:

(1) That person shall notify the director in writing that the person has received an enhancement of survival permit and include in the notification a copy of the permit.

(2) Upon receipt of the notice specified in paragraph (1), the director shall immediately have the notice published in the General Public Interest section of the California Regulatory Notice Register.

(3) Within 30 days after the director has received the notice specified in paragraph (1), the director determines the enhancement of survival permit will further the conservation of the species. As used in this paragraph, “conservation” has the same meaning as defined in Section 2061.

(4) The director shall immediately have the determination pursuant to paragraph (3) published in the General Public Interest section of the California Regulatory Notice Register.

(b) The timing and extent of a take authorization under this section shall be limited to the terms in the federal enhancement of survival permit and shall expire upon the expiration of the federal permit.

(c) (1) This section shall remain in effect only until the effective date of an amendment to Section 1539 of Title 16 of the United States Code that alters the requirements for issuing an enhancement of survival permit, as applicable, and as of that date is repealed.

(2) If the director becomes aware that this section has been repealed pursuant to this subdivision, the director shall notify the Legislature of that fact pursuant to Section 9795 of the Government Code.

(Added by Stats. 2017, Ch. 276, Sec. 1. (AB 1133) Effective January 1, 2018. Repealed on date prescribed by its own provisions.)

2080.6.
  

(a) For purposes of this chapter, “experimental population” means any population nonessential to the continued existence of an endangered, threatened, or candidate species, including any eggs, propagules, individuals, or offspring arising solely therefrom, that the Secretary of the Interior or the Secretary of Commerce designates as an experimental population pursuant to Section 1539(j) of Title 16 of the United States Code.

(b) If a population of a species is an experimental population, no further authorization or approval is necessary under this chapter for any person to incidentally take members of that experimental population, if all of the following requirements are met:

(1) The Secretary of the Interior or the Secretary of Commerce has published regulations in the Federal Register for the designated experimental population as required by Section 1539(j) of Title 16 of the United States Code.

(2) The director has determined, in writing, that the regulations specified in paragraph (1) meet the requirements in subdivision (c).

(3) The action or activity that results in incidental take of the designated experimental population is authorized by the regulations published in the Federal Register.

(c) The director shall issue the determination described in paragraph (2) of subdivision (b), if the director finds that the federal regulations described in paragraph (1) of subdivision (b) meet all of the following criteria:

(1) The federal regulations will further the conservation of the species. As used in this paragraph, “conservation” has the same meaning as defined in Section 2061.

(2) The federal regulations contain measures to avoid and minimize the impacts of any taking allowed by the regulation.

(3) The federal regulations will not jeopardize the continued existence or recovery of the species.

(d) If the director determines that the federal regulations described in paragraph (1) of subdivision (b) are not consistent with this chapter, or if the action or activity that results in incidental take is not authorized in those federal regulations, the incidental take of members of the designated experimental population may only be authorized pursuant to the other provisions of this chapter.

(e) The director shall publish the determination, pursuant to paragraph (2) of subdivision (b), and subdivision (d), in the General Public Interest section of the California Regulatory Notice Register.

(Added by Stats. 2017, Ch. 276, Sec. 2. (AB 1133) Effective January 1, 2018.)

2080.7.
  

It is the intent of the Legislature that, before the introduction of an experimental population, as defined in Section 2080.6, onto land or into waters of this state, the department should undertake appropriate public outreach, including public meetings, in an effort to inform the public about the proposed introduction of the experimental population and its potential effects, if any, on ongoing human activities. To the extent practicable, this public outreach should include inviting other public boards, departments, or agencies that may have a regulatory or other role regarding the experimental population to collaborate with the department. Nothing in this section shall be construed to modify any other law or legal obligation.

(Added by Stats. 2017, Ch. 276, Sec. 3. (AB 1133) Effective January 1, 2018.)

2081.
  

The department may authorize acts that are otherwise prohibited pursuant to Section 2080, as follows:

(a) Through permits or memorandums of understanding, the department may authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions, to import, export, take, or possess any endangered species, threatened species, or candidate species for scientific, educational, or management purposes.

(b) The department may authorize, by permit, the take of endangered species, threatened species, and candidate species if all of the following conditions are met:

(1) The take is incidental to an otherwise lawful activity.

(2) The impacts of the authorized take shall be minimized and fully mitigated. The measures required to meet this obligation shall be roughly proportional in extent to the impact of the authorized taking on the species. Where various measures are available to meet this obligation, the measures required shall maintain the applicant’s objectives to the greatest extent possible. All required measures shall be capable of successful implementation. For purposes of this section only, impacts of taking include all impacts on the species that result from any act that would cause the proposed taking.

(3) The applicant shall ensure adequate funding to implement the measures required by paragraph (2), and for monitoring compliance with, and effectiveness of, those measures.

(c) No permit may be issued pursuant to subdivision (b) if issuance of the permit would jeopardize the continued existence of the species. The department shall make this determination based on the best scientific and other information that is reasonably available, and shall include consideration of the species’ capability to survive and reproduce, and any adverse impacts of the taking on those abilities in light of (1) known population trends; (2) known threats to the species; and (3) reasonably foreseeable impacts on the species from other related projects and activities.

(d) The department shall adopt regulations to aid in the implementation of subdivision (b) and the requirements of Division 13 (commencing with Section 21000) of the Public Resources Code, with respect to authorization of take. The department may seek certification pursuant to Section 21080.5 of the Public Resources Code to implement subdivision (b).

(e) Commencing January 1, 2019, the department shall post each new permit issued pursuant to subdivision (b) on its Internet Web site within 15 days of the effective date of the permit.

(Amended by Stats. 2018, Ch. 329, Sec. 11.5. (SB 473) Effective January 1, 2019.)

2081.1.
  

Nothing in this chapter or in any other provision of law prohibits the taking or the incidental taking of any endangered, threatened, or candidate species if the taking was authorized by the department through a permit or memorandum of understanding, or in a natural communities conservation plan, habitat conservation plan, habitat management plan, or other plan or agreement approved by or entered into by the department, or in an amendment to such a permit, memorandum of understanding, plan, or agreement and all of the following conditions are met:

(a) The application process commenced on or before April 10, 1997.

(b) The department approved the permit, memorandum of understanding, plan, agreement, or amendment thereto within either of the following timeframes:

(A) On or before April 10, 1997.

(B) Between April 10, 1997, and January 1, 1998, and the department also certifies that the permit, memorandum of understanding, plan, agreement, or amendment thereto meets the substantive criteria of subdivision (b) of Section 2081.

The permits, memoranda of understanding, plan, agreements, and amendments thereto described in this section are deemed to be in full force and effect, as of the date approved or entered into by the parties insofar as they authorize the take of species. This section does not apply to the “Emergency Management Measures Permit” issued by the department on March 15, 1995.

(Added by Stats. 1997, Ch. 567, Sec. 3. Effective January 1, 1998.)

2081.2.
  

(a) For purposes of this section, the following terms have the following meanings:

(1) “Permit” means any authorization issued by the department pursuant to this article to take a species listed by this chapter as candidate, threatened, or endangered. The term includes a consistency determination pursuant to Section 2080.1 and a concurrence determination pursuant to Section 2080.3 or 2080.4.

(2) “Permit application” means an application for a permit, an amendment to a permit, or a renewal of a permit. The term includes a consistency determination request pursuant to Section 2080.1 and a concurrence determination request pursuant to Section 2080.3 or 2080.4.

(3) “Permittee” includes any individual, firm, association, organization, partnership, business, trust, corporation, limited liability company, district, city, county, city and county, town, federal agency, and the state who applies for or who has received a permit pursuant to this article.

(4) “Project” has the same meaning as defined in Section 21065 of the Public Resources Code.

(5) “Project cost” means the total direct and indirect project expenses that include, but are not limited to, labor, equipment, permanent materials and supplies, subcontracts, overhead, and miscellaneous costs. The term shall not include permit or license expenses or mitigation costs. For purposes of this paragraph, the term “permit” includes, but is not limited to, a permit as defined in paragraph (1).

(6) “Voluntary habitat restoration project” means a project that meets both of the following requirements:

(A) The project’s primary purpose is voluntary habitat restoration and the project may have other environmental benefits, and the project is not required as mitigation due to a regulatory action.

(B) The project is not part of a regulatory settlement, a regulatory enforcement action, or a court order.

(b) (1) The department shall collect a permit application fee for processing a permit application submitted pursuant to this article at the time the permit application is submitted to the department. Notwithstanding Section 2098, upon appropriation to the department from the Endangered Species Permitting Account, the department shall use the permit application fee to pay for all or a portion of the department’s cost of processing permit applications, permit development, and compliance monitoring pursuant to this article.

(2) This subdivision does not apply to any of the following:

(A) Activities or costs associated with the review of projects, inspection and oversight of projects, and permits necessary to conduct timber operations, as defined in Section 4527 of the Public Resources Code, in accordance with Article 9.5 (commencing with Section 4629) of Chapter 8 of Part 2 of Division 4 of the Public Resources Code.

(B) Permits or memoranda of understanding authorized by subdivision (a) of Section 2081.

(C) Permits for voluntary habitat restoration projects.

(c) The department shall assess the permit application fee as follows, subject to subdivision (f):

(1) For a project, regardless of estimated project cost, that is subject only to Section 2080.1, 2080.3, or 2080.4, the department shall assess either of the following amounts:

(A) Seven thousand five hundred dollars ($7,500).

(B) Six thousand dollars ($6,000), if the project uses a department-approved conservation or mitigation bank to fulfill mitigation obligations pursuant to this article.

(2) For a project where the estimated project cost is less than one hundred thousand dollars ($100,000), the department shall assess either of the following amounts:

(A) Seven thousand five hundred dollars ($7,500).

(B) Six thousand dollars ($6,000), if the project uses a department-approved conservation or mitigation bank to fulfill mitigation obligations pursuant to this article.

(3) For a project where the estimated project cost is one hundred thousand dollars ($100,000) or more but less than five hundred thousand dollars ($500,000), the department shall assess either of the following amounts:

(A) Fifteen thousand dollars ($15,000).

(B) Twelve thousand dollars ($12,000), if the project uses a department-approved conservation or mitigation bank to fulfill mitigation obligations pursuant to this article.

(4) For a project where the estimated project cost is five hundred thousand dollars ($500,000) or more, the department shall assess either of the following amounts:

(A) Thirty thousand dollars ($30,000).

(B) Twenty-four thousand dollars ($24,000), if the project uses a department-approved conservation or mitigation bank to fulfill mitigation obligations pursuant to this article.

(5) The department shall collect a fee of seven thousand five hundred dollars ($7,500) for processing permit amendments that the department has determined are minor as defined in regulation or fifteen thousand dollars ($15,000) for processing permit amendments that the department has determined are major as defined in regulation.

(d) (1) If the permit application fee paid pursuant to subdivision (c) is determined by the department to be insufficient to complete permitting work due to the complexity of a project or the potential effects of a project, the department shall collect an additional fee of up to ten thousand dollars ($10,000) from the permittee to pay for its estimated costs. Upon its determination, the department shall notify the permittee of the reasons why an additional fee is necessary and the estimated amount of the additional fee.

(2) The additional fee collected pursuant to paragraph (1) shall not exceed an amount that, when added to the fee paid pursuant to subdivision (c), equals thirty-five thousand dollars ($35,000). The department shall collect the additional fee before a final decision on the permit application by the department.

(e) (1) For a permit application submitted to the department pursuant to this article on or after the effective date of this section, the department shall collect the permit application fee at the time the permit application is submitted. The department shall not deem the permit application complete until it has collected the permit application fee. A permit application submitted or deemed complete before the effective date of this section shall not be subject to fees established pursuant to this section.

(2) If a permit application is withdrawn within 30 days after paying the permit application fee, the department shall refund any unused portion of the fee to the permittee.

(3) If a permit application is withdrawn after 30 days of paying the permit application fee, the department shall not refund any portion of the fee to the permittee.

(f) (1) The department shall adjust the fees in this section pursuant to Section 713.

(2) The Legislature finds that all revenues generated under this section and used for the purposes for which they were imposed are not subject to Article XIII B of the California Constitution.

(3) The department, at least every five years, shall analyze permit application fees pursuant to Section 713 to ensure the appropriate fee amounts are charged.

(g) Fees paid to the department pursuant to this section shall be deposited in the Endangered Species Permitting Account, which is hereby established in the Fish and Game Preservation Fund. Notwithstanding Section 2098, funds in the account shall be available to the department, upon appropriation by the Legislature, for the purposes of administering and implementing this chapter, except that fee moneys collected pursuant to this section shall only be used for the purposes of this article.

(Amended by Stats. 2018, Ch. 329, Sec. 12. (SB 473) Effective January 1, 2019.)

2081.4.
  

(a) The department may authorize, under this chapter, the take of the rough sculpin (Cottus asperrimus) resulting from impacts attributable to replacing the Spring Creek Bridge in the County of Shasta, if all of the following conditions are satisfied:

(1) The requirements of subdivisions (b) and (c) of Section 2081 are satisfied for the take of the rough sculpin.

(2) The department ensures that all further measures necessary to satisfy the conservation standard of subdivision (d) of Section 2805 are incorporated into the project.

(3) The take authorization provides for the development and implementation, in cooperation with federal and state agencies, of a monitoring program and an adaptive management process until the department determines that any impacts resulting from the replacement of the Spring Creek Bridge have been fully mitigated.

(b) This section shall not be construed to exempt the project described in subdivision (a) from any other law.

(Added by Stats. 2016, Ch. 293, Sec. 2. (AB 1845) Effective January 1, 2017.)

2081.5.
  

(a) The department may authorize under this chapter, by permit, the take of the Santa Cruz long-toed salamander (Ambystoma macrodactylum croceum) resulting from impacts attributable to the construction along the State Route 156 corridor through Moro Cojo Slough in the County of Monterey for the purpose of enhancing safety and access, if all of the following conditions are satisfied:

(1) The requirements of subdivisions (b) and (c) of Section 2081 are satisfied for the take of the Santa Cruz long-toed salamander.

(2) The department ensures that all further measures necessary to satisfy the conservation standard of subdivision (d) of Section 2805 are incorporated into the construction project.

(3) The take authorization provides for the development and implementation, in cooperation with federal and state agencies, of a monitoring program and an adaptive management process until the department determines that any impacts resulting from the construction project described in this subdivision have been fully mitigated.

(b) The conditions for the permit are subject to amendment if required by the monitoring program and the adaptive management process adopted pursuant to paragraph (3) of subdivision (a).

(c) This section shall not be construed to exempt the construction project described in subdivision (a) from any other law.

(Added by Stats. 2020, Ch. 237, Sec. 1. (SB 1231) Effective January 1, 2021.)

2081.6.
  

(a) The department may authorize, under this chapter, the take of the unarmored threespine stickleback (Gasterosteus aculeatus williamsoni) resulting from impacts attributable to the habitat restoration project to restore, maintain, and improve riparian habitat on public lands in the geographic area defined in paragraph (1) and projects to restore the flow capacity to Bouquet Creek in Bouquet Canyon on public lands, undertaken by the Los Angeles County Department of Public Works, the Los Angeles Department of Water and Power, and the United States Department of Agriculture, Forest Service, if all of the following conditions are satisfied:

(1) The take authorization is limited to the portion of Bouquet Creek located from a position normal to mile marker 8.3 on Bouquet Canyon Road to a position normal to mile marker 16.3 on Bouquet Canyon Road, inclusive.

(2) The department has determined that the appropriate agreements have been executed to address environmental impacts at the Bouquet Canyon area, including, but not limited to, Bouquet Creek.

(3) The requirements of subdivisions (b) and (c) of Section 2081 are satisfied for the take of the unarmored threespine stickleback.

(4) The department ensures that all further measures necessary to satisfy the conservation standard of subdivision (d) of Section 2805 are incorporated into the projects.

(5) A biologist will be on duty whenever an activity is conducted that may affect the unarmored threespine stickleback.

(6) The take authorization provides for the development and implementation, in cooperation with federal and state agencies, of a monitoring program and an adaptive management process that satisfy the conservation standard of subdivision (d) of Section 2805 for monitoring the effectiveness of, and adjusting, as necessary, the measures to minimize and fully mitigate the impacts of the authorized take.

(7) The take authorization provides for the development and implementation, in cooperation with state and federal agencies, of an adaptive management process that substantially contributes to the long-term conservation of the unarmored threespine stickleback.

(b) This section shall not be construed to exempt the projects described in subdivision (a) from any other law.

(c) This section shall not be construed to affect the contractual obligations of the Los Angeles Department of Water and Power to provide water from Bouquet Reservoir.

(Added by Stats. 2015, Ch. 620, Sec. 2. (AB 353) Effective October 8, 2015.)

2081.7.
  

(a) Notwithstanding Sections 3511, 4700, 5050, and 5515, and contingent upon the fulfillment of the conditions listed in subdivisions (b), (c), and (d), the department may authorize, under Chapter 1.5 (commencing with Section 2050) or Chapter 10 (commencing with Section 2800), the take of species resulting from impacts attributable to the implementation of the Quantification Settlement Agreement, as defined in subdivision (a) of Section 1 of Chapter 617 of the Statutes of 2002, on all of the following:

(1) The salinity, elevation, shoreline habitat, or water quality of the Salton Sea.

(2) The quantity and quality of water flowing in the All American Canal, the Coachella Canal, the Imperial Valley and Coachella Valley drains, the New and Alamo Rivers, the Coachella Valley Stormwater Channel, and the habitat sustained by those flows.

(3) Agricultural lands in the Imperial Valley.

(4) The quantity and quality of water flowing in the Colorado River, the habitat sustained by those flows, and the collection of that water for delivery to authorized users.

(b) The Quantification Settlement Agreement is executed by the appropriate parties on or before October 12, 2003.

(c) The department has determined that the appropriate agreements have been executed to address environmental impacts at the Salton Sea that include enforceable commitments requiring all of the following:

(1) Imperial Irrigation District to transfer 800,000 acre-feet of conserved water, by conservation methods selected by the Imperial Irrigation District, to the Department of Water Resources on a mutually agreed-upon schedule in exchange for payment of one hundred seventy-five dollars ($175) per acre-foot. The price shall be adjusted for inflation on an annual basis.

(2) Imperial Irrigation District to transfer up to 800,000 additional acre-feet of conserved water, by conservation methods selected by the Imperial Irrigation District, to the Department of Water Resources during the first 15 years of the Quantification Settlement Agreement on the schedule established for the mitigation water that was previously to be transferred to the San Diego Water Authority, or on a mutually agreed-upon schedule, at no cost for the water in addition to the payment for the water from the mitigation fund described in paragraph (1) of subdivision (b) of Section 3 of Chapter 613 of the Statutes of 2003.

(3) As a condition to acquisition of the water described in paragraph (1), the Department of Water Resources shall be responsible for any environmental impacts, including Salton Sea salinity, related to use or transfer of that water. As a condition to acquisition of the water described in paragraph (2), the Department of Water Resources shall be responsible for environmental impacts related to Salton Sea salinity that are related to the use or transfer of that water.

(4) The Metropolitan Water District of Southern California (MWD) to purchase up to 1.6 million acre-feet of the water provided in accordance with paragraphs (1) and (2) from the Department of Water Resources at a price of not less than two hundred fifty dollars ($250) per acre-foot on a mutually agreed-upon schedule. The price shall be adjusted for inflation on an annual basis. The Department of Water Resources shall deposit all proceeds from the sale of water pursuant to this paragraph, after deducting costs and reasonable administrative expenses, into the Salton Sea Restoration Fund established in Section 2932.

(5) The Metropolitan Water District of Southern California to pay not less than twenty dollars ($20) per acre-foot for all special surplus water received by MWD as a result of reinstatement of access to that water under the Interim Surplus Guidelines by the United States Department of Interior subtracting any water delivered to Arizona as a result of a shortage. The money shall be paid into the Salton Sea Restoration Fund. The price shall be adjusted for inflation on an annual basis. Metropolitan Water District of Southern California shall receive a credit against future mitigation obligations under the Lower Colorado River Multi-Species Conservation Plan for any funds provided under this paragraph to the extent that those funds are spent on projects that contribute to the conservation or mitigation for species identified in the Lower Colorado River Multi-Species Conservation Plan and that are consistent with the preferred alternative for Salton Sea restoration.

(6) Coachella Valley Water District, Imperial Irrigation District, and San Diego County Water Authority to pay a total of thirty million dollars ($30,000,000) to the Salton Sea Restoration Fund as provided in paragraph (2) of subdivision (b) of Section 3 of Chapter 613 of the Statutes of 2003.

(d) All of the following conditions are met:

(1) The requirements of subdivision (b) and (c) of Section 2081 are satisfied as to the species for which take is authorized.

(2) The take authorization provides for the development and implementation, in cooperation with federal and state agencies, of an adaptive management process for monitoring the effectiveness of, and adjusting as necessary, the measures to minimize and fully mitigate the impacts of the authorized take. The adjusted measures are subject to Section 2052.1.

(3) The take authorization provides for the development and implementation in cooperation with state and federal agencies of an adaptive management process that substantially contributes to the long-term conservation of the species for which take is authorized. Preparation of the adaptive management program and implementation of the program is the responsibility of the department. The department’s obligation to prepare and implement the adaptive management program is conditioned upon the availability of funds pursuant to the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002, if it is approved by the voters at the statewide general election to be held November 5, 2002 (Proposition 50), or other funds that may be appropriated by the Legislature or approved by the voters for that purpose. The failure to appropriate funds does not relieve the applicant of the obligations of paragraphs (1) and (2). However, the applicant shall not be required to fund any program pursuant to this paragraph.

(4) The requirements of paragraph (1) may be satisfied if the take is authorized under Chapter 10 (commencing with Section 2800).

(e) (1) The Secretary of the Resources Agency, in consultation with the department, the Department of Water Resources, the Salton Sea Authority, appropriate air quality districts, and the Salton Sea Advisory Committee, shall undertake a restoration study to determine a preferred alternative for the restoration of the Salton Sea ecosystem and the protection of wildlife dependent on that ecosystem. The Secretary of the Resources Agency shall extend an invitation to the United States Geological Survey Salton Sea Science Office to also participate in the restoration study, and the office may participate if it accepts the invitation. The restoration study shall be conducted pursuant to a process with deadlines for release of the report and programmatic environmental documents established by the secretary, in consultation with the department, the Department of Water Resources, the Salton Sea Authority, and the Salton Sea Advisory Committee, and the United States Geological Survey Salton Sea Science Office, if it is a participant. The secretary shall use all available authority to enter into a memorandum of understanding (MOU) with the Secretary of the Interior, as provided in Section 101(b)(1)(B)(i) of the Salton Sea Reclamation Act of 1998 (P.L. 105-372) for the purpose of obtaining federal participation in the restoration of the Salton Sea.

(2) The restoration study shall establish all of the following:

(A) An evaluation of alternatives for the restoration of the Salton Sea that includes consideration of strategies for salinity control, habitation creation and restoration, and different shoreline elevations and surface area configurations. The alternatives shall consider the range of possible inflow conditions. The evaluation established pursuant to this subparagraph shall also include suggested criteria for selecting and evaluating alternatives consistent with Chapter 13 (commencing with Section 2930), including, but not limited to, at least one most cost-effective, technically feasible, alternative.

(B) An evaluation of the magnitude and practicability of costs of construction, operation, and maintenance of each alternative evaluated.

(C) A recommended plan for the use or transfer of water provided by paragraph (2) of subdivision (c). No water may be transferred pursuant to that subdivision unless the secretary finds that transfer is consistent with the preferred alternative for Salton Sea restoration.

(D) The selection of a preferred alternative consistent with Section 2931, including a proposed funding plan to implement the preferred alternative. The proposed funding plan shall include a determination of the moneys that are, or may be, available to construct and operate the preferred project, including, but not limited to, all of the following moneys:

(i) Moneys in the Salton Sea Restoration Fund established by Section 2932.

(ii) State water and environmental bond moneys.

(iii) Federal authorizations and appropriations.

(iv) Moneys available through a Salton Sea Infrastructure Financing District established pursuant to Section 53395.9 of the Government Code and local assessments by the Salton Sea Authority or its member agencies.

(v) Moneys derived from user or other fees.

(3) The study identifying the preferred alternative shall be submitted to the Legislature on or before December 31, 2006.

(4) The Secretary of the Resources Agency shall establish an advisory committee for purposes of this subdivision as follows:

(A) The advisory committee shall be selected to provide balanced representation of the following interests:

(i) Agriculture.

(ii) Local governments.

(iii) Conservation groups.

(iv) Tribal governments.

(v) Recreational users.

(vi) Water agencies.

(vii) Air pollution control districts.

(viii) Geothermal energy development.

(B) Appropriate federal agency representatives may be asked to serve in an ex officio capacity.

(C) The Resources Agency shall consult with the advisory committee throughout all stages of the alternative selection process.

(D) The advisory committee shall meet no fewer than six times annually.

(E) The secretary shall appoint a vice chair of the advisory committee from the committee membership. The vice chair shall work with the secretary to develop advisory committee agendas and to schedule meetings of the committee. The secretary and vice chair shall appoint an agenda subcommittee to assist in the preparation of advisory committee agendas.

(F) The advisory committee shall submit to the Resources Agency recommendations to assist the agency in preparation of its restoration plan. The Resources Agency shall develop a schedule for the completion of these recommendations to ensure that these recommendations will be considered by the agency in a timely and meaningful manner as the restoration plan is developed. These recommendations may include, but are not limited to:

(i) The specific goals and objectives of the restoration plan.

(ii) The range of alternative restoration actions that must be developed and analyzed.

(iii) The no action alternative.

(iv) The criteria for determining economic and technical feasibility of the alternatives.

(v) The range of options for funding the restoration plan.

(vi) The selection of a preferred alternative for a restoration plan.

(G) The Resources Agency shall periodically provide an update to the advisory committee of the current work plan and schedule for the development of the restoration plan.

(f) This section shall not be construed to exempt from any other provision of law the Quantification Settlement Agreement and the Agreement for Transfer of Conserved Water by and between the Imperial Irrigation District and the San Diego County Water Authority, dated April 29, 1998.

(Amended by Stats. 2004, Ch. 614, Sec. 1. Effective January 1, 2005.)

2081.8.
  

The Resources Agency shall undertake the necessary activities to assess the protection of recreational opportunities, including, but not limited to, hunting, fishing, boating, and birdwatching, and the creation of opportunities for improved local economic conditions, surrounding the Salton Sea. The Resources Agency shall not undertake any of those activities if the agency determines they would constitute a project purpose for environmental documentation that is prepared pursuant to Section 2081.7.

(Added by Stats. 2004, Ch. 614, Sec. 2. Effective January 1, 2005.)

2081.9.
  

(a) Notwithstanding Section 5050, the department may authorize, under this chapter, the incidental take of limestone salamander (Hydromantes brunus) resulting from impacts attributable to the Department of Transportation’s implementation of the Ferguson Slide Permanent Restoration Project on State Route 140 from 8 miles east of Briceburg to 7.6 miles west of El Portal in Mariposa County, contingent upon the fulfillment of the following conditions:

(1) The Department of Transportation begins construction of the Ferguson Slide Permanent Restoration Project on or before January 1, 2016.

(2) The department has determined that the Department of Transportation will adopt appropriate avoidance and mitigation measures to protect the limestone salamander through enforceable commitments that, at a minimum, include the following:

(A) A construction work window that prevents initial ground-disturbing construction activities from occurring on the southern slope during the salamander’s active season of December to March, inclusive.

(B) Environmentally sensitive area fencing in the form of five-foot orange plastic mesh, as well as salamander protection exclusionary fencing in the form of 24-inch sheet metal, will be erected if construction-related activities will occur adjacent to limestone salamander habitat during their active season.

(C) A biological monitor will be onsite during active building to inspect the worksite and all exclusionary fencing.

(D) All ground-disturbing activities within 100 feet will cease if a limestone salamander is detected in an active construction site until the animal can be safely removed from the area according to an agreed-upon salvage plan.

(3) The requirements of subdivisions (b) and (c) of Section 2081 are satisfied for the take of the limestone salamander.

(4) The department ensures that all further measures necessary to satisfy the conservation standard of subdivision (d) of Section 2805 are incorporated into the project.

(5) The take authorization provides for the development and implementation, in cooperation with the department, of an adaptive management process for monitoring the effectiveness of, and adjusting as necessary, the measures to minimize and fully mitigate the impacts of the authorized take. The adjusted measures are subject to Section 2052.1.

(6) The failure to appropriate funds does not relieve the applicant of the obligations of paragraphs (1) and (2).

(7) Any observations of the species in the worksite and any accidental injury or mortality from vehicle strikes or other means will be reported to the department immediately and the onsite biological monitor will notify the resident engineer who will halt the work immediately.

(b) This section shall not be construed to exempt the Ferguson Slide Permanent Restoration Project on State Route 140 from 8 miles east of Briceburg to 7.6 miles west of El Portal in Mariposa County from any other law.

(Added by Stats. 2012, Ch. 121, Sec. 1. (AB 1973) Effective January 1, 2013.)

2081.10.
  

(a) The department may authorize, under this chapter, the incidental take of unarmored threespine stickleback (Gasterosteus aculeatus williamsoni) attributable to the periodic dewatering, inspection, maintenance, modification, or repair, including emergency repair, of the Metropolitan Water District of Southern California’s Foothill Feeder water supply facility from Castaic Dam to the Joseph Jensen Treatment Plant in the County of Los Angeles, contingent upon the fulfillment of the following conditions:

(1) The department determines that the requirements of subdivisions (b) and (c) of Section 2081 are satisfied for the take of the unarmored threespine stickleback.

(2) The department ensures that all further measures necessary to satisfy the conservation standard of subdivision (d) of Section 2805 are incorporated into the project.

(3) The take authorization provides for the development and implementation, in cooperation with the department, of an adaptive management plan for monitoring the effectiveness of, and adjusting as necessary, the measures to minimize and fully mitigate the impacts of the authorized take and to satisfy the conservation standard of subdivision (d) of Section 2805.

(4) A biologist who has substantial relevant experience evaluating impacts to inland fisheries is on duty whenever an activity is conducted that may affect the unarmored threespine stickleback.

(5) The Metropolitan Water District of Southern California consults with the department to consider feasible measures to avoid and minimize incidental take of unarmored threespine stickleback. For purposes of this paragraph, “feasible” has the same meaning as defined in Section 15364 of Title 14 of the California Code of Regulations.

(b) The take authorization shall cover any incidental take of unarmored threespine stickleback attributable to the periodic dewatering, inspection, maintenance, modification, or repair, including emergency repair, of the Foothill Feeder that may occur in the following locations:

(1) Within the Santa Clara River, from the Bouquet Canyon Road Bridge to a point located 4,000 feet downstream of where Commerce Center Drive, as of January 1, 2016, dead-ends adjacent to the Santa Clara River.

(2) From the confluence with the Santa Clara River upstream to the following locations:

(A) In Charlie Canyon to a point 1,000 feet upstream of the Foothill Feeder facility dewatering structure.

(B) In San Francisquito Creek to the Copper Hill Drive bridge.

(C) In Placerita Creek to the Hacienda Lane crossing.

(D) In Bouquet Creek to the Newhall Ranch Road Bridge.

(c) The take authorization shall also cover any incidental take of unarmored threespine stickleback that may occur in the course of implementing mitigation or conservation actions required in the permit issued pursuant to subdivision (a) as may be modified through an adaptive management plan adopted pursuant to paragraph (3) of subdivision (a).

(d) The permit issued pursuant to subdivision (a) shall include conditions that cover biological and scientific considerations including, but not limited to, criteria for the handling of stranded fish and their relocation into suitable habitat, the dewatering of the Foothill Feeder, and the reasonable and feasible mimicking of streamflows. The permit conditions shall be in compliance with the project description, mitigation measures, and release plan set forth in the certified environmental impact report known as the “Foothill Feeder Repair and Future Inspections Project Environmental Impact Report, January 2005, State Clearinghouse Number 2005071082.” The permit conditions are subject to amendment when required by the adaptive management plan or when modified by a subsequent final environmental document pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code).

(e) This section shall not be construed to exempt from any other law the periodic dewatering, inspection, maintenance, modification, or repair of the Foothill Feeder.

(f) If the Metropolitan Water District of Southern California receives a permit under this section, the permit shall require the district to report to the department within six months after every dewatering of the Foothill Feeder. The report shall address compliance with the permit conditions and the effectiveness of the adaptive management plan in contributing to the conservation of the unarmored threespine stickleback. The Metropolitan Water District of Southern California shall ensure that each report is made available to the public.

(g) As used in this section, “modification” does not include alterations to expand the maximum physical capacity of the Foothill Feeder to deliver water.

(Added by Stats. 2016, Ch. 387, Sec. 2. (AB 2488) Effective January 1, 2017.)

2081.11.
  

(a) The department may authorize, under this chapter, the take or possession of the Lost River sucker (Deltistes luxatus and Catostomus luxatus) and shortnose sucker (Chasmistes brevirostris) resulting from impacts attributable to or otherwise related to the decommissioning and removal of the Iron Gate Dam, the Copco 1 Dam, the Copco 2 Dam, or the J.C. Boyle Dam, each located on the Klamath River, consistent with the Klamath Hydroelectric Settlement Agreement, if all of the following conditions are met:

(1) The department finds the authorized take will not jeopardize the continued existence of the Lost River sucker or shortnose sucker.

(2) The impacts of the authorized take are minimized.

(3) The take authorization requires department approval of a sampling, salvage, and relocation plan to be implemented and that describes the measures necessary to minimize the take of adult Lost River sucker and shortnose sucker associated with the department’s authorization. The plan shall provide for a sampling effort, the results of which will provide information used to make decisions and to implement the plan while utilizing the principles of adaptive management.

(b) This section shall not be construed to exempt the project described in subdivision (a) from any other law.

(Added by Stats. 2018, Ch. 586, Sec. 1. (AB 2640) Effective January 1, 2019.)

2081.12.
  

(a) The department may authorize, under this chapter, by permit, the take or possession of the blunt-nosed leopard lizard (Gambelia sila) resulting from impacts attributable to or otherwise related to the Allensworth Community Services District’s drilling and construction of a new water well, connection of the new water well to the existing distribution system, and construction of a new water storage tank, if both of the following conditions are met:

(1) The requirements of subdivisions (b) and (c) of Section 2081 are satisfied for the take of the blunt-nosed leopard lizard.

(2) The take authorization provides for the development and implementation of a monitoring program and an adaptive management plan, approved by the department, for monitoring the effectiveness of, and adjusting as necessary, the measures to minimize and fully mitigate the impacts of the authorized take.

(b) The permit issued pursuant to subdivision (a) shall cover any incidental take of a blunt-nosed leopard lizard that may occur in the course of implementing mitigation or conservation actions required in the permit.

(c) The permit conditions are subject to amendment when required by the monitoring program and adaptive management plan adopted pursuant to paragraph (2) of subdivision (a).

(d) This section shall not be construed to exempt the projects described in subdivision (a) from any other law.

(Added by Stats. 2018, Ch. 224, Sec. 2. (SB 495) Effective August 27, 2018.)

2082.
  

This chapter does not prohibit the sale of any endangered species or threatened species, or any part or product thereof, when the owner can demonstrate that the species, or part or product thereof, was in the person’s possession before the date upon which the commission listed the species as an endangered species or threatened species or as an endangered animal or rare animal prior to January 1, 1985, and shall not prohibit the sale of that part or product by an individual not normally engaged in that sale if it was originally possessed by the seller for the seller’s own use and so used by that seller. However, it shall be unlawful to sell any species, or part or product thereof, if that sale would have been unlawful prior to the date upon which the commission added the species to the listing of endangered species or threatened species or to the listing of endangered animals or rare animals prior to January 1, 1985.

(Added by Stats. 1984, Ch. 1240, Sec. 2.)

2083.
  

This chapter does not apply to the taking of fish otherwise authorized pursuant to Part 3 (commencing with Section 7600) of Division 6 or to the possession of individual animals which were lawfully possessed before the commission listed the species as an endangered species or as a threatened species or as an endangered animal or rare animal prior to January 1, 1985.

(Added by Stats. 1984, Ch. 1240, Sec. 2.)

2084.
  

(a) The commission may authorize, subject to terms and conditions it prescribes, and based on the best available scientific information, (1) the taking of any candidate species, or (2) the taking of any fish by hook and line for sport that is listed as an endangered, threatened, or candidate species, provided that in either case the take is consistent with this chapter.

(b) The department may recommend to the commission that the commission authorize, or not authorize, the taking of an endangered, threatened, or candidate species pursuant to this section.

(Amended by Stats. 2018, Ch. 329, Sec. 14. (SB 473) Effective January 1, 2019.)

2085.
  

The provisions of this article shall apply to any species designated as a candidate species under Section 2074.2 if notice has been given pursuant to Section 2074.4.

(Added by Stats. 1984, Ch. 1162, Sec. 6.)

FGCFish and Game Code - FGC3