Welcome to the New Year! I have decided to declare 2016 to be the year of the endangered species. Why? We ended 2015 with a bang by seeing how serious the take prohibition in the California Fish and Game Code can be for fully protected species. Plus, we saw just how low the bar can go for listing candidate species under the California Endangered Species Act (stay tuned for more on that in a future post). Further, despite recent rains, many species continue to struggle to thrive given the current drought in California. Consequently, as we move into 2016, issues related to endangered species will continue to be front-and-center for many development projects, farmers, water users and others under both California and federal wildlife laws.
First up for 2016: a stern reminder that state and federal wildlife laws do have some teeth. Earlier this week, the U.S. Attorney’s Office announced a plea deal with an Alameda County development company and its president for failing to mitigate for impacts to California tiger salamander (CTS), which is listed under both the California and federal ESA. The deal also resolved allegations of fraud, but the heart of the matter involved the lack of mitigation for impacts to CTS habitat resulting from sediment runoff. As you (hopefully) already know, violations of the California and federal ESA can result in civil and/or criminal penalties. In this case, the developer agreed to pay $1 million in restitution and place a conservation easement on 107 acres (valued at $3 million).
Although this plea deal involved fraud and a willful disregard of the law, it still includes some valuable lessons for those of us who try to color inside the lines. Yes, the wildlife agencies actually do enforce the protections required by the California and federal ESA. Those enforcement actions can lead to fines that can actually affect your bottom line, which might make you think twice about forgoing incidental take coverage. Also, an ominous reminder for those dealmakers out there: buyer beware! This plea deal involved a developer who falsified mitigation records. If the stakes are high enough, you may want to ask yourself what records you have reviewed to confirm the satisfaction of mitigation requirements — or at least be ready to assume the risk of outstanding (and potentially costly) mitigation.