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On September 10, 2025, the California Senate passed Assembly Bill 1319 (AB 1319) with amendments, and the following day the California Assembly concurred in the amendments sending the bill to Governor Newsom for his consideration. AB 1319 is a direct response to concerns that the federal government may reduce existing protections for species listed as threatened or endangered under the federal Endangered Species Act (ESA). To do so, it proposes to establish a new category of species under the California Endangered Species Act (CESA), "provisional candidate species."
What protections do provisional candidate species have under AB 1319?
If signed into law, provisional candidate species would have the same protections afforded to candidate species under CESA. Candidate species, in turn, have the same protections accorded to listed species under CESA. This includes a prohibition on take of such species except as otherwise provided under CESA, the Native Plant Protection Act, or the California Desert Native Plants Act.
What is the process for designating a species as a provisional candidate species?
If the California Department of Fish and Wildlife (CDFW) determines that a federally listed species would be substantially impacted by a decrease in protections by the federal government and that listing as a provisional candidate species could significantly reduce such impacts, CDFW would publish its determination, and the species will be listed under CESA as a provisional candidate species.
AB 1319 provides no role for the Fish and Game Commission (Commission) and the public in determining whether to protect provisional candidate species. AB 1319 also exempts actions pursuant to the bill from the California Environmental Quality Act.
How long could a species remain a provisional candidate species?
Due to questionable drafting, the bill includes two provisions in tension with one another. Section 2(d) states: "Any species added to the list of provisional candidate species pursuant to subdivision (c) shall remain a provisional candidate species until December 31, 2031." Section 2(f) then states: "Any species added to the list of provisional candidate species pursuant to subdivision (c) may be removed from the list by the commission." One way to harmonize these provisions is to presume that the Commission can override section 2(d) by taking action under section 2(f) to remove the species from the list of candidate, provisional candidate, threatened, and endangered species under CESA. Another way to harmonize these provisions is to presume that the Commission can override section 2(d) but only by listing a "provisional candidate species" as either threatened or endangered under CESA.
How will CDFW determine if there is a decrease in protections by the federal government?
There would be a decrease in protections by the federal government where an action by the federal government reduces the level of protection provided to a listed species by, among other actions, delisting a species, changing the listing status of a species from endangered to threatened, eliminating or changing the prohibitions on take, or decreasing the amount of mitigation required for permits or other approvals. The term "action" encompasses an act of the United States Congress to amend the ESA, a rulemaking or amendment to regulations by either the United States Fish and Wildlife Service or the National Marine Fisheries Service (collectively, "the Services"), an executive order by the President of the United States, or an action by the Endangered Species Committee (or "God Squad").
Could there be unintended consequences if the bill is enacted?
Yes, there could be a number of unintended consequences. For example, if a species is delisted because the United States Fish and Wildlife Service or the National Marine Fisheries Service determines it has recovered and is no longer in need of protection, CDFW could determine that such action decreases the protection for the species and add it to the list of provisional candidate species.
In addition, for example, if the Services finalize the currently proposed rule to rescind the regulatory definition of "harm" under the ESA, CDFW could determine that such action decreases the protection for all federally listed species and add some number of them to the list of provisional candidate species.
Further, if the United States Fish and Wildlife Service or the National Marine Fisheries Service amends a biological opinion issued under section 7 or an incidental take permit issued under section 10 in a manner that reduces the mitigation a federal agency or non-federal entity must undertake, CDFW could determine that such action decreases the protection for the species and add it to the list of provisional candidate species.
Is there any provision in AB 1319 that could reduce the potential for such unintended consequences?
Yes, there is. The bill provides that CDFW will only add a species to the list of provisional candidate species after determining that the decrease in protection by the federal government will have a "substantial impact" on the species within California and that provisional listing could "significantly reduce" that impact. But these two key terms are not defined in the bill.
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