The California Fish and Game Commission took significant steps during 2019 toward listing foothill yellow-legged frog and four species of bumble bee as threatened or endangered species under the California Endangered Species Act (CESA). These actions have practice implications for environmental professionals.
Five clades (evolutionary groups) of the foothill yellow-legged frog (Rana boylii), which became a candidate species in 2017, were determined to be warranted for listing: the Feather River clade and Northeast/Northern Sierra clade as threatened, and the East/Southern Sierra clade, West/Central Coast clade, and Southwest/South Coast clade as endangered.
Crotch bumble bee (Bombus crotchii), Franklin’s bumble bee (B. franklini), Suckley cuckoo bumble bee (B. suckleyi), and western bumble bee (B. occidentalis occidentalis) became candidates for listing as endangered. These species will remain candidate species until the Commission, the California Department of Fish and Wildlife (CDFW), and the Office of Administrative Law take additional administrative steps.
Process for Listing under the California Endangered Species Act
The multiyear process for listing species as candidate, threatened, or endangered under CESA (Fish and Game Code Section 2050, et seq.) and Section 670.1, Title 14, California Code of Regulations, includes numerous administrative steps. These steps are summarized below, along with the current stages in the listing of foothill yellow-legged frog and four bumble bees. Additional details about the listing process are available on the Commission’s website.
Petition to List and CDFW Evaluation. The process begins with submittal of a petition to the Commission and evaluation of the petition by CDFW.
- CDFW evaluation of the petition to list foothill yellow-legged frog
- CDFW evaluation of the petition to list four species of bumble bee
Designation of Candidacy and One-Year Status Review. Based on the CDFW evaluation report and other information, the Commission makes a finding on whether the species’ listing may be warranted. If the finding is that listing the species may be warranted, the Commission designates it as a candidate species. If the Commission finds that listing is not warranted, the process ends. Within 12 months of the candidacy notice, CDFW prepares and submits a status report to the Commission.
- In June 2017, the Commission determined that listing foothill yellow-legged frog may be warranted, and foothill yellow-legged frog became a candidate species. CDFW presented its status review to the Commission in September 2019.
- In June 2019, the Commission determined that the petition to list four bumble bees as endangered may be warranted, and they became candidate species. This determination began a one-year status review, which is underway.
Determination of Whether Listing Is Warranted. After review of the status report, the Commission makes a finding on whether the petitioned action is warranted. If the Commission finds it is not warranted, the process ends, and the species is removed from the list of candidate species.
- At its December 11, 2019, meeting, the Commission determined that the foothill yellow-legged frog report warrants listing two clades as threatened and three clades as endangered. The Commission determined that listing the Northwest/North Coast clade is not warranted; this clade will be removed from the list of candidate species.
Administrative Steps to Final Listing. For species warranting listing, ratification occurs at a future meeting, and a rulemaking process begins. Notice of Findings and, if applicable, Notice of Proposed Changes in Regulations are published in the Notice Register. Adoption and filing of regulations then occur, and an Effective Date of Regulation is included in the filing.
- The Commission is scheduled to ratify the findings that listing is warranted for the five clades of foothill yellow-legged frog at one of the Commission’s 2020 meetings.
Practice Implications for Environmental Review and Permitting
The five clades of foothill yellow-legged frog remain as candidate species until the final administrative steps are complete, which is expected to occur in 2020. The four species of bumble bees are candidate species while CDFW prepares a status review of the species.
California law affords protection to candidate species as if they were listed as threatened or endangered species. Projects that could result in take should incorporate effective take avoidance actions into the project or apply for an incidental take permit. CESA prohibits the taking of state-listed endangered or threatened species, as well as candidate species being considered for listing, without the issuance of an incidental take permit. If take cannot be avoided, project proponents may obtain an incidental take permit if the impacts of the take are minimized and fully mitigated and if the take would not jeopardize the continued existence of the species. Take of a species, under CESA, is defined as to “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill” an individual of the species. More information about incidental take permits and the permitting process is available on CDFW’s website.