ENVIRONMENTAL REGULATION
Endangered Species
Science-Based Requirements Should Present Balanced Approach
Summary
Background
Endangered species protections continue to confront and confound business activities in California. Housing,
transportation, agriculture, and basic infrastructure needs, including water, gas, electricity and alternative
energy sources like wind and solar, are complicated by encroaching environmental laws like the federal
and state endangered species acts. It becomes a balancing act to provide basic human needs with species
protections while trying to invigorate business productivity that adds to a stable economy.
Current State and Federal Regulations
California is one of a handful of states that is subject to regulation by three endangered species laws—the
federal Endangered Species Act, the California Endangered Species Act (CESA) and the California Fully
Protected Species Act. Endangered species laws require that no activity be allowed which threatens the wellbeing of the listed species unless permission to “take” the species is granted. “Take” is defined in Section
86 of the state Fish and Game Code as “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue,
catch, capture, or kill.” In California, the Department of Fish and Wildlife may authorize individuals, public
agencies, universities, zoological gardens, and scientific or educational institutions to take an endangered
species for scientific, educational, or management purposes.
The classification of “fully protected” was the state’s initial effort in the 1960s to identify and provide
additional protection to those animals that were rare or faced possible extinction. Lists were created for fish,
mammals, amphibians, reptiles and birds. Most fully protected species also have been listed as threatened or
endangered species under the more recent endangered species laws and regulations.
Fully protected species may not be taken or possessed at any time, and no licenses or permits may be
issued for their take, except for collecting these species for necessary scientific research and relocation of the
bird species for the protection of livestock.
Federal endangered species law has similar provisions for take and in addition, federal law requires critical
habitat designations within one year of listing. Critical habitat is a “specific geographic area(s) that contains
features essential for the conservation of a threatened or endangered species and that may require special
management and protection. Critical habitat may include an area that is not currently occupied by the species
but that will be needed for its recovery.”
The process for listing a species as endangered or threatened generally begins with the species being placed
on the candidate list while undergoing consideration. Once information has been collected, a decision is made
to either start the process to list the species as endangered or leave the species on the candidate list because not
enough information is currently available to list it, or the species is found not to be endangered or threatened
and should be removed from the candidate list.
Recent Activities
California placed two animal species and one plant on the state’s candidate list: the flat-tailed horned lizard
located in San Diego, Riverside and Imperial counties; the Livermore tarplant, mostly in Alameda County;
and the Pacific fisher, which ranges from Napa County through most of Northern California. If listed, the flattailed horned lizard and the Pacific fisher’s large ranges could pose many difficulties for landowners, requiring
special management and protection, limiting landowners’ ability to use the acreage. Listing also poses
problems for transportation and water infrastructure development.
As the result of a settlement agreement with the environmental community, the U.S. Fish and Wildlife
Service agreed to make initial decisions on 757 species for listing purposes. So far, more than 138 species have
been listed or formally proposed for protection under this agreement.
Additionally, the service must make final decisions on 251 species that are pending on the candidate list.
In the space of five years, the list of endangered species may increase by 70%.
The U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration’s National
Marine Fisheries Service proposed rules to revise the definition of “destruction or adverse modification of
critical habitat” in 2014. The changes are designed to increase predictability and transparency, according to
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ENVIRONMENTAL REGULATION
the agencies. The proposed changes are necessary because the courts invalidated the definition of “adverse
modification.” Stakeholders commented that the proposal further expanded the definition and therefore
included more land that would have to be considered as critical habitat. Comments are still being evaluated.
Expected Activity in 2016
The California Department of Fish and Wildlife will likely continue its work on regulations protecting
bird nests or eggs under Sections 3503 and 3503.5 of the Fish and Game Code, which provides: “It is
unlawful to take, possess, or needlessly destroy the nest or eggs, except as otherwise provided by this code or
any regulation made pursuant thereto.” The regulation was adopted to limit rampant collection of nests and
eggs for sale as food and use in ladies’ hat fashions in the early 20th century.
A couple of drafts outlining the department’s proposed regulations have been circulated for informal
review by stakeholders. The drafts have been overly restrictive concerning adverse impacts that a project may
have to nests or eggs of common species. The drafts also appear to expand the list of birds whose nests may
not be disturbed beyond those originally intended. Industry groups offered comments outlining the problems
with the proposed regulations and the misinterpretation of existing law. At this time, the proposed regulations
have not been submitted to the Office of Administrative Law. A final rule is forthcoming in early 2016.
The U.S. Fish and Wildlife Service will continue to review species as required under its settlement
agreements. It also will continue its effort to designate critical habitat. More litigation will likely result from
the stepped-up timetable for listings and continued critical habitat designations. On the list for review in
California are the tricolored blackbird, California spotted owl, Inyo Mountains salamander, Kern Plateau
salamander, lesser slender salamander, limestone salamander, Panamint alligator, Shasta salamander, and the
southern rubber boa. The tricolored blackbird was listed under CESA on an emergency basis, but the listing
expired in June and the California Fish and Game Commission declined to renew the listing. A new petition,
however, was submitted and will be considered soon. The Center for Biological Diversity also petitioned the
U.S. Fish and Wildlife Service to list the bird under the federal act.
The state Fish and Wildlife Service will be gathering information and reviewing submittals on the three
candidate species — the flat-tailed horned lizard, the Livermore tarplant, and the Pacific fisher.
The agricultural industry and the business community should continue to submit comments on regulatory
proposals as well as meeting with the regulators. Privately funded research results, and research funded through
universities, should be shared with regulators to help them form a better understanding of species, habitat
needs, and possible mitigation techniques.
CalChamber
Position
The California Chamber of Commerce supports reforms to state and federal laws that achieve a balanced
approach between environmental protection and social economic progress. Environmental regulations should
be based on sound science, subject to peer review. Economic impacts should be evaluated to ensure that the
benefits outweigh the social costs of imposing mitigation measures.
Staff Contact
Valerie Nera
Policy Advocate
[email protected]
California Chamber of Commerce
P.O. Box 1736
Sacramento, CA 95812-1736
(916) 444-6670
www.calchamber.com
January 2016
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2016 California Business Issues
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