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California Department of Fish and Wildlife
It Is Not Fulfilling Its Responsibilities Under the California Environmental Quality Act

Report Number: 2018-119



Enacted in 1970, the California Environmental Quality Act (CEQA) requires state agencies to give major consideration to preventing environmental damage when regulating activities under their jurisdiction. The California Department of Fish and Wildlife (department) refers to CEQA as California’s broadest and most important environmental law. Both public and private development projects in California—such as community centers and apartment buildings—are generally subject to CEQA.1 CEQA generally requires state and local government agencies to inform decision makers and the public about the potential environmental impacts of proposed projects and to reduce those environmental impacts to the extent feasible.

CEQA has been the subject of some controversy. Project applicants have been critical of CEQA for increasing the costs of development. Critics of CEQA have also claimed that opponents of development projects use the law to slow down the projects for nonenvironmental reasons, such as to prevent transit stations in certain neighborhoods or to gain leverage in labor negotiations. However, since its implementation, public agencies and the public have used CEQA to protect the environment, as well as public health and safety. For example, in 2003 local groups and labor unions realized that a proposal to expand an oil refinery to produce lower sulfur diesel fuel would increase pollution and harm public health in the area. Through CEQA, the groups worked with the refinery owner to mitigate the increased pollution yet still allow the expansion to go forward. A 2016 report commissioned by a charitable foundation supporting environmental work found that since the Legislature enacted CEQA, California has outperformed other states in conserving and protecting its natural resources while also enjoying economic prosperity. Thus, CEQA can be an effective tool for protecting the public and the environment while allowing development and growth.

The Department's Mission

The mission of the department is to manage California’s diverse fish, wildlife, and plant resources—and the habitats upon which they depend—for their ecological value and for their use and enjoyment by the public. Its many functions include law enforcement and issuing hunting and fishing licenses. In addition, the department has authority to approve projects with impacts on fish, wildlife, and their habitats in part through its permitting process. Although its CEQA duties are separate from its permitting duties, the department’s CEQA work may serve as a precursor to its permitting process. Under CEQA, the department is generally responsible for reviewing the impact that development projects may have on fish and wildlife resources and for recommending options for mitigating potentially significant effects on those resources. We discuss the department’s specific responsibilities related to CEQA in more detail below.

The Department’s Structure and Budget

The Habitat Conservation Planning Branch (conservation branch) conducts the department’s work related to CEQA and accounts for 14 percent of the department’s total staff. Dispersed among the department’s regional and satellite offices, environmental scientists from the conservation branch handle work related to CEQA reviews and to permitting based on the locations of projects. Figure 1 shows the area assigned to each region and the location of each region’s headquarters. When a project spans multiple regions or may have statewide impact, conservation branch staff at the department’s state headquarters oversee the project’s CEQA reviews.

Figure 1
The Department's Regional Offices

A color-coded map of California showing the locations of the department’s seven regional offices, their respective headquarters, and the department’s State headquarters.

Source: Analysis of the department's website.

* Sacramento, San Joaquin, and Yolo counties are split between regions 2 and 3. The majority of the counties are within Region 2.

Region 7 covers the entire coast within three nautical miles off of the shore.

CEQA Agency Roles

Lead Agency—Typically, a local government agency, such as a city or county, acts as a lead agency. The lead agency is responsible for either carrying out or approving a project. A lead agency prepares—or contracts for the preparation of—CEQA documents, which the lead agency must also certify or adopt.

Responsible Agency—A state or local agency is a responsible agency if it has authority to approve an aspect of a project by, for example, issuing a permit. A responsible agency helps the lead agency prepare adequate CEQA documents by consulting with the lead agency and by commenting on draft CEQA documents. A single project may have more than one responsible agency.

Trustee Agency—A trustee agency is a state agency that helps the lead agency prepare adequate CEQA documents for projects that affect resources within that state agency’s jurisdiction. The department is one of four public agencies specified in state regulations as a trustee agency.

Source: Analysis of CEQA laws and regulations and a report from the Association of Environmental Professionals.

The department’s budget was $600 million in fiscal year 2018–19, and it used half of this budget for conservation programs. Appendix B provides a breakdown of the department’s enacted fiscal year 2018–19 budget by function and revenue source. The State’s General Fund contributed $121 million to the department in fiscal year 2018–19. The remainder of its funding came from different sources, including fees related to CEQA reviews, permits, and hunting and fishing licenses. The department receives about $6 million annually—roughly 1 percent of its overall budget—from fees that project applicants and public agencies that are subject to CEQA pay during the review process.

The Department’s Duties Under CEQA

As we indicate above, the CEQA process occurs after a public or private entity—which we refer to as a project applicant—decides to construct a development project, but before it applies for a permit from the department. The project applicant must submit an application for approval to a lead agency, usually a city or county. As Figure 2 shows, the lead agency must then consult with the department regarding the project’s potential environmental impacts. This step begins the CEQA process, which has three separate phases—preliminary, draft, and final—that we discuss later in this section. At the end of the CEQA process, the lead agency decides whether to approve the project, after which the project will proceed to the permitting process, if necessary. Although portions of the CEQA process have deadlines, it can take years for a project to complete the CEQA process and obtain permits if necessary.

Figure 2
The Three Phases of CEQA Review

A flowchart illustrating the CEQA process in three phases: Preliminary, Draft, and Final.

Source: Analysis of CEQA-related laws and regulations and the department’s permit application instructions.

Note: We define these phases for the purpose of our report. This process does not apply to projects that are statutorily or categorically exempt from CEQA.

* The lead agency must consult with and request comments from the department when preparing an environmental impact report. It must give notice to and allow comments from the department when preparing most negative declarations and mitigated negative declarations. If the lead agency receives comments from the department on these documents, it must consider them.

Depending on the projects’ particular circumstances, the department has different roles and responsibilities in the CEQA process. As the text box explains, CEQA mandates specific requirements to the three roles in which agencies may serve: lead agency, responsible agency, and trustee agency. The department functions as a lead agency when it carries out its own projects in, for example, state wildlife areas. In contrast, the department functions as a trustee agency for all projects that may affect, among other things, California’s fish, wildlife, and their habitats. Finally, the department functions as a responsible agency only when it will eventually have responsibility for approving projects by, for example, issuing a permit. A project may have more than one trustee agency or responsible agency.

This report focuses primarily on the department’s duties as a responsible agency. Determining early in the CEQA process whether the department will be a responsible agency can be difficult. According to the department, the initial documents describing a project may not include the level of detail necessary to determine if a permit will be required. However, because state law and regulations establish activities that a responsible agency must or should undertake—such as consulting or reviewing draft CEQA documents—before the permitting process begins, the department must sometimes perform the duties of a responsible agency before it is certain that it will serve in that role. The department also has responsibilities as a trustee agency that extend to all projects—not just those for which it will eventually issue permits. The duties of a responsible and a trustee agency are similar; in this report, we identify those instances when the department’s duties as a trustee agency differ from its duties as a responsible agency.

The State Clearinghouse, located within the Governor’s Office of Planning and Research, also has a role in the CEQA process. When a lead agency determines that a project potentially will have statewide significance or an environmental impact on natural resources over which one or more state agencies has jurisdiction, the State Clearinghouse acts as the liaison between the lead agency and the state trustee and responsible agencies. State law and regulations require that, upon the lead agency’s request, the State Clearinghouse must help identify which state agencies will be responsible agencies. Further, regulations require it to distribute CEQA documents to the state trustee and responsible agencies for review and comment.

The Preliminary Phase of CEQA Review

Types of CEQA Documents

Environmental Impact Report—A document describing and analyzing a proposed project’s likely significant environmental effects. It lists ways in which the project applicant might mitigate significant effects and indicates alternatives to the project.

Negative Declaration—A document stating why a project will not significantly affect the environment. When the project will not significantly affect the environment as a result of mitigation measures the project applicant has incorporated into the project, the document is called a mitigated negative declaration.

Source: State laws and regulations pertaining to CEQA.

The preliminary phase of the department’s CEQA review helps to shape the type and content of the CEQA documents, which the text box describes. During this phase, regulations require the department—as a responsible agency—to respond to a lead agency’s consultation request and help the lead agency determine whether a project will have a significant effect on the environment. This consultation informs the lead agency’s determination of whether it must prepare a negative declaration or an environmental impact report for the project. If the lead agency determines it will prepare an environmental impact report, it sends a notice of preparation to the department. Regulations require the department to respond in writing to that notice as soon as possible, but not longer than 30 days after receiving it, and to include in its response the environmental issues the lead agency should address in its draft environmental impact report.

The Draft Phase of CEQA Review

In the draft phase, the department—as a responsible agency—should receive a draft environmental impact report, negative declaration, or mitigated negative declaration that the lead agency has completed. The department and the lead agency must again consult on—and the department may comment on—an environmental impact report in the draft CEQA phase. Regulations generally give the department 45 days to review a draft environmental impact report. Although state law does not require the department to consult on a draft negative declaration, regulations generally allow 30 days for it to review and comment on a draft negative declaration if it chooses to do so. The department’s consultation and comments can help ensure that the lead agency’s draft environmental impact report or negative declaration is adequate. Regulations state that the department should limit its comments to project activities within its area of expertise. For example, as a responsible agency, the department’s comments could inform the lead agency of ways to mitigate a project’s impact on endangered species. Figure 3 illustrates the timeline within which a responsible agency must fulfill the preliminary and draft phase requirements.

Figure 3
Timeline for Responsible Agencies to Consult and Comment on CEQA Documents

A timeline that shows the periods within which responsible agencies consult and comment on CEQA documents.

Source: Analysis of CEQA laws and regulations.

* Regulations do not provide a specific time limit for consultation or for the lead agency to prepare a draft CEQA document; however, state law generally allows the lead agency 180 days to finalize a negative declaration and one year to finalize an environmental impact report, starting from the date the lead agency received the application for the project.

Regulations generally establish a draft review period of 30 days for negative and mitigated negative declarations and 45 days for environmental impact reports.

The Final Phase of CEQA Review

If the department agrees that the environmental impact report or negative declaration is adequate, it does not play a role as a responsible agency in the final phase of CEQA review. The lead agency carries out this phase when it certifies the environmental impact report or adopts the negative declaration or mitigated negative declaration before it approves the project. Before certifying or adopting the respective document, the lead agency must consider any comments it received from responsible agencies during the draft review period; it must respond to those comments when the comments concern an environmental impact report. The State’s policy is that public agencies should not approve projects as proposed if feasible alternatives or mitigation measures are available that would substantially lessen the significant environmental effects of the projects. However, if specific economic, social, or other conditions make alternatives or mitigation measures infeasible, lead agencies may approve individual projects even if they have significant environmental effects.

If a lead agency approves a project to proceed, it presents evidence of its decision by filing a notice of determination with a county clerk or the State Clearinghouse. At this time, project applicants pay a filing fee, which we describe later in this report. Although the lead agency has approved it, a project may still require one or more permits before the project applicant may proceed with construction. We discuss the department’s permits and how they relate to CEQA in the next section.

The Relationship Between CEQA and the Department’s Permitting Process

As we indicated previously, the department’s permitting process is separate from the CEQA review process. However, the department’s authority to approve project permits is one reason it acts as a responsible agency under CEQA. As a responsible agency, the department helps the lead agency prepare an appropriate and complete CEQA document that identifies the significant environmental impacts of a project; similarly, the department may determine through its permitting process that a project needs additional mitigation measures. Before approving a permit, the department must issue findings explaining that the measures included in its permit and in the lead agency’s CEQA document will substantially lessen any significant environmental impacts within its jurisdiction that the project may cause.

The department’s two permits—California Endangered Species Act (CESA) permits and Lake and Streambed Alteration (LSA) agreements—may build upon the lead agency’s CEQA document. A project applicant obtains a permit from the department through a collaborative process. First, the project applicant submits to the department its CEQA document and an application. If the application does not contain sufficient information, the department will follow up with the applicant. Next, the department may require additional mitigation measures to minimize harm to fish and wildlife resources. To obtain a CESA permit, an applicant must fully plan to mitigate the project’s impacts on endangered and threatened species. To obtain an LSA agreement, an applicant must ensure that the project does not substantially divert or obstruct the flow of lakes, rivers, or streams, or alter their beds. A project applicant seeking a CESA permit must wait until it receives that permit before proceeding with the project. However, if the department does not issue a draft LSA agreement within 60 days, a project applicant may generally proceed without an agreement. The project applicant must still conduct the activity as described in its application to the department, including implementing measures intended to protect fish and wildlife resources.


1 Certain development projects are statutorily or categorically exempt from CEQA. Go back to text

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