Section 783.5 - Incidental Take Permit Process(a) The Director shall review and render a decision regarding incidental take permit applications in accordance with this section. On-site inspections by the Department may be required prior to a final decision by the Director.(b) Initial review. The Department shall complete an initial review of each incidental take permit application within 30 days of receipt. If the Department determines that the application is complete, it shall notify the applicant that the application has been accepted and shall commence review of the permit application in accordance with section 783.5(c) or section 783.5(d), as applicable. This determination shall be based solely on whether the applicant has provided information responsive to each required element of sections 783.2 and 783.3 and shall not be based on the merits of the application. If an incomplete or improperly executed application is submitted, the Department shall return the application to the applicant with a description of the deficiency. The applicant shall have 30 days from receipt of the returned application to correct the deficiency and re-submit the application. If the Department takes no action within 30 days of receipt, the application shall be deemed complete. The Department may require supplementary information during the application review process after the application is determined to be complete, or is deemed complete, pursuant to this subsection.(c) Department as CEQA responsible agency. If the Department is a responsible agency for purposes of CEQA, the Department shall act in accordance with California Code of Regulations, title 14, section 15096 and other applicable provisions of CEQA and the CEQA Guidelines, California Code of Regulations, title 14, section 15000, et seq.. The Director shall decide whether an incidental take permit can be issued under this article, in accordance with CEQA and the CEQA Guidelines, based on a review of the application; the environmental impact report, mitigated negative declaration or negative declaration, or other environmental documentation prepared pursuant to a regulatory program certified pursuant to Public Resources Code section 21080.5 (and listed in title 14, California Code of Regulations, section 15251), prepared by the lead agency; the lead agency's findings under Section 21081 of the Public Resources Code; and any other available, relevant information included in the record by the Department. (1) If the Department determines that it will not proceed with any of the actions specified in California Code of Regulations, title 14, section 15096(e), the Director shall approve the application and issue a permit, or deny an application, in accordance with this article as soon as possible and no later than the latest of the following dates:(A) 90 days from the date on which the lead agency approved the activity. However, the Department shall, at the request of the applicant, commence processing the application as soon as the information necessary to commence the processing is available.(B) 90 days from the date on which the application was accepted as complete by the Department.(C) If the Department makes a written finding that additional time is necessary due to the complexity of the application or the scope and duration of the requested permit, the 90 day periods for acting upon the permit application may be extended an additional 60 days to at total of 150 days.(2) If the Director decides to approve the application, the Director shall make findings substantiating compliance with section 783.4 and shall make the findings required of a CEQA responsible agency under California Code of Regulations, title 14, section 15096(h). The Director shall then issue the incidental take permit. Within five working days after the issuance or amendment of a permit, the Department shall file a notice of determination under California Code of Regulations, title 14, section 15096(i).(3) If the Director decides to deny the application, the Director shall return the application to the applicant with a written statement of the basis for the denial and a description of any measures the Director deems necessary in order for the application to be approved.(d) Department as lead agency. If the Department is the lead agency under CEQA for purposes of issuing an incidental take permit, the application shall be reviewed, and approved or denied in accordance with this subsection. The Director shall approve an application and issue a permit, or deny the application , under this subsection no later than 120 days from the date on which the completed application is accepted as complete by the Department; provided, however, that the Department may extend this time to no later than 180 days from the date the application is accepted upon a written finding that the extension is necessary due to the complexity of the application or the scope and duration of the requested permit.(1) Review of environmental analysis. After accepting a completed application, the Department shall review the analysis submitted by the applicant pursuant to section 783.3 and make any revisions that the Director deems necessary or appropriate to comply with CEQA.(2) Notice of Public Availability of application. (A) Public review and comment. Once the Department has reviewed and revised the analysis, it shall make the application and analysis available for public review at the headquarters of the region in which the application was submitted and shall distribute copies of a Notice of Public Availability. A minimum of 30 days following distribution of the Notice of Public Availability shall be allowed for public review and comment regarding the application. The Notice of Public Availability shall include the following: 1. the name of the applicant;2. a brief description of the project or activity for which the permit is sought and its location;3. the common and scientific names of the species to be covered by the permit;4. the date on which the Department accepted the application;5. a description of how copies of the application and analysis can be obtained;6. the name and telephone number of a contact person within the Department who can answer questions regarding the application; and7. a statement that the Department seeks written comments from the public regarding the application and analysis, an address to which the comments should be sent, and the deadline for submission of the comments.(B) Distribution of notice. Copies of the Notice of Public Availability shall be distributed as follows: 1. A copy shall be sent to the office of the County Clerk of the county in which the proposed project or activity would take place and, if applicable, to the planning department of the city with jurisdiction over the project or activity, for posting at the customary place for posting environmental matters.2. If the Director determines that the proposed project or activity is of Statewide significance, a copy shall be filed with the Office of Planning and Research.3. A copy shall be sent to any other person upon written request.4. Copies of the Notice of Public Availability may also be posted or made available at such other locations as the Director deems desirable and feasible to provide adequate public notice.(3) Consultation. Concurrent with the distribution of the Notice of Public Availability, the Department shall consult with, and request written comments from, all public agencies with jurisdiction by law over the project or activity for which the permit is sought.(4) Response to comments. The Department shall prepare a written summary and response to all significant environmental points raised during review of the application.(5) Issuance of permit. The Director's decision regarding the application shall be based on the application and analysis, the written summary and response to significant environmental points, and any other available, relevant information included in the record by the Department. The Director shall determine whether or not to issue an incidental take permit pursuant to this article and, in addition, shall determine whether the project or activity, as proposed, may result in any significant adverse environmental effects in addition to the impacts of taking species to be covered by the permit, and, if so, whether feasible alternatives or feasible mitigation measures would avoid or substantially lessen any significant adverse effects. The Director shall not approve the application, as proposed, if there are feasible mitigation measures or alternatives which would substantially reduce any significant adverse effects. If significant adverse effects will likely result even after the inclusion of feasible mitigation measures or alternatives, the Director may approve the application if the Director first makes findings in accordance with the provisions of Section 21081 of the Public Resources Code.(A) If the Director decides to approve the application, the Director shall make findings substantiating compliance with section 783.4 and this subsection (d)(5). The Director shall then issue the incidental take permit.(B) If the Director decides to deny the application, the Director shall return the application to the applicant with a written statement of the basis for the permit denial and a description of any measures the Director deems necessary in order for the application to be approved.(6) Notice of decision. Within five working days of issuing an incidental take permit or denying an application under this subsection(d), the Director shall file a Notice of Decision, which indicates whether the proposed permit will, or will not, have a significant effect on the environment, with the Secretary of the Resources Agency. The Notice of Decision shall include a statement that the Director approved the application and has issued an incidental take permit, or that the Director denied the application.Cal. Code Regs. Tit. 14, § 783.5
1. New section filed 12-30-98; operative 12-30-98 pursuant to Government Code section 11343.4(d) (Register 99, No. 1). Note: Authority cited: Sections 702 and 2081(d), Fish and Game Code; and Section 21080.5, Public Resources Code. Reference: Section 2081(b), Fish and Game Code; and sections 21002.1, 21069, 21080.1, 21080.3, 21080.4, 21080.5 and 21165, Public Resources Code.
1. New section filed 12-30-98; operative 12-30-98 pursuant to Government Code section 11343.4(d) (Register 99, No. 1).