Rare plants are finally moving out of the regulatory gray area.
The California Department of Fish and Wildlife (CDFW) is proposing a regulation that will provide a mechanism for projects to go forward that may have impacts to certain plant species designated as “rare” under the Native Plant Protection Act. There are two pieces of California state legislation that classify and protect plants: the Native Plant Protection Act (NPPA) enacted in 1977, and the California Endangered Species Act (CESA) enacted in 1970 to protect animal species and modified in 1984 to protect plants. With the 1984 modification of CESA, plants listed as endangered under the NPPA became endangered under CESA, however plants listed as rare under NPPA did not receive a designation under CESA.
Although both laws allowed for the adoption of regulations allowing take of listed native plants, it is only under CESA that regulations were promulgated that allowed for take incidental to development projects. Since no such regulations were ever developed under the NPPA there is currently no mechanism for permitting take incidental to most development projects of the sixty-four plant species that remained listed as rare under the NPPA; agricultural and nursery operations are exempt under the NPPA as well as certain maintenance and other activities after proper notification. The current lack of a regulatory mechanism to permit take of NPPA rare species may create an impasse for many projects.
New Guidance for Rare Plants
Under the CFGC’s new guidance, Rare Plants will be regulated “using the same procedures and subject to the same conditions that can be used for threatened, endangered, and candidate plant species” protected under the CESA. This will allow CDFW to issue take permits for Rare Plants and is a way out of the impasse for projects that could potentially impact these species. With this new proposal, Rare Plants will receive the same regulatory treatment as CESA-covered plant species, and therefore will have defined rules and procedures for permitting.
The Commission adopted the recommendation June 4, 2014, and CDFW will next publish the regulation to receive public comments and will then respond to those comments with a revised regulation to be voted on by the Commission in early Fall 2014. A final regulation should be accepted in late 2015 by the State.