Dear Colleagues,
Your input is needed right away to help justify that a new fee should not be imposed for voluntary restoration projects requiring a CESA Incidental Take Permit. DFW has given us the opportunity to ask for key information from restoration proponents. DFW has proposed a new fee of $7,500-$30,000 for issuance of CESA (CA Endangered Species Act) permits or consistency determinations for all projects. See budget bill language here.
We have suggested that voluntary habitat restoration projects be exempted from this fee. DFW has offered to exempt small projects that fall within the Habitat Restoration and Enhancement Act (AB 2193) and Coho HELP Act. However, there are many projects that are larger or otherwise not eligible for these expedited processes. We have been asked to demonstrate the need for a fee exemption for voluntary restoration projects. Could you answer the following questions to assist us? See more detailed explanation below. Please respond ASAP in order for us to provide information prior to upcoming budget hearings.
1) Do your restoration projects ever require a CESA ITP due to potential presence of state-listed species that might require relocation or be adversely affected? If so, do any exceed 500 linear ft. or 5 acres in size? Could you site specific examples (names) of projects that you have completed, or that you are planning that did or might require an ITP?
2) DFW believes restoration project applicants almost never require a CESA ITP because they successfully avoid potential take of listed species through negotiation of acceptable environmental protection measures. Has this been your experience?
3) Do you avoid doing restoration projects or work at sites that would require a CESA ITP?
4) There are four categories of exemptions proposed in the bill language (see below): Timber Harvest Plans, CESA 2081(a) MOUs, Safe Harbor Agreements, and CESA Voluntary Local Programs. Would these cover your organization's restoration projects or not? Have you ever negotiated a CESA 2081(a) MOU with DFW?
Additional information to help answer the above questions:
Due to concerns raised, it appears DFW is willing to exempt the following types of projects from the new fee:
(1) Projects that get a timber harvest plan permit
(2) Projects that obtain an MOU issued under CESA Sec 2081(a) - by which the Department may authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions to take an endangered, threatened, or candidate species for "scientific, educational, or management purposes."
(3) Projects that are part of State Safe Harbor Agreements (Fish and Game Code Article 3.7)
(4) Projects that are part of a State Voluntary Local Program (F&G Code Section 2086)
We are concerned that voluntary restoration projects that fall outside the scope of HRE Act or Coho Act (those greater than 500 linear ft. of impact or 5 ac.), or which may be submitted under traditional Sec 1600 permitting for any reason, with state-listed species potentially present at the project site (such as coho salmon that must be relocated from the work area), will only be able to avoid the new fee by obtaining a sec 2081(a) MOU, a new regulatory burden that is potentially time-consuming and complex. In addition, we are concerned that restoration proponents may not be clear that under 2081(a) they are a qualifying type of organization, and that voluntary restoration is considered "management."
In our most recent conversation with DFW, staff noted that its permit database indicates that restoration applicants are successfully avoiding the need for ITPs through the negotiation of adequate environmental protection measures. DFW says that if this proposed fee exemption language goes forward, even those projects that would need an ITP or consistency determination will now be able to proceed by obtaining a 2081(a) MOU from DFW and thus avoid paying the fee.
If you have any feedback for us, please send it along as soon as possible. Thank you!
Sincerely,
Erik Schmidt
