AB 1319 Creates “Provisional Candidate” Protections for Species Facing Reduced Federal ESA Safeguards

On October 11, 2025, Governor Newsom signed Assembly Bill (AB) 1319 into law. AB 1319 creates a swift, state-level response mechanism if Federal Endangered Species Act (FESA) protections are decreased for species native to California that are not already protected under the California Endangered Species Act (CESA).

Rather than directing the California Fish and Game Commission (the Commission) to adopt emergency regulations, the law requires the California Department of Fish and Wildlife (CDFW) to: (1) monitor specified federal actions; (2) determine whether those actions decrease FESA protections and would substantially impact one or more eligible species in California and whether provisional candidacy could significantly reduce those impacts; and (3) upon such a determination, publish written findings in the California Regulatory Notice Register that add the species to the Commission’s list of “provisional candidate” species. Provisional candidates receive the same protections as CESA candidate species.

A qualifying “decrease in protections” includes congressional amendments, rulemakings by federal resource agencies, presidential executive orders, or Endangered Species Committee (“God Squad”) actions that reduce protection (e.g., delisting, downlisting from endangered to threatened, altering “take” prohibitions, or reducing mitigation obligations).

The practical effect of this mandate is that any reduction in FESA protections could lead to the listing of additional species as provisional candidate species under CESA, with potentially broad implications for development projects throughout the state.

Summary of AB 1319

AB 1319 is intended to provide state-level protections for California native species not already listed under CESA if federal protections are narrowed, particularly under the current Administration. Under AB 1319, if the federal government reduces FESA protections after January 19, 2025 (including enactment of the U.S. Fish and Wildlife Service’s (USFWS) April 17, 2025 proposed rule to remove “harm” from FESA’s definition of prohibited activities, as we previously analyzed here), and CDFW finds that such actions would substantially impact one or more eligible species in California and that provisional candidacy would significantly reduce such impacts, CDFW must publish findings and add the species as a CESA provisional candidate.

Provisional candidate species receive immediate protection under CESA. CESA prohibits “take” of any listed species, defined broadly to include actions to “hunt, pursue, catch, capture or kill, or attempt to hunt, pursue, catch, capture, or kill” those species absent express “take” authorization through the issuance of an Incidental Take Permit (ITP). (Fish & G. Code, § 86.) Violations, even if unintentional, may result in criminal and civil penalties such as fines, imprisonment, and license suspension or revocation. (Id. § 12002.) Notably, AB 1319 does provide a safe harbor for entities operating under, and in compliance with, existing federal “take” authorizations in effect on or before January 19, 2025.

CDFW must report each provisional candidacy at the next Commission meeting. The Commission may then direct CDFW to prepare a formal status review and proceed under the traditional CESA listing process; however, the standard 12-month candidate timelines (Fish & G. Code §§ 2074.4-2076) do not apply to species that are provisional candidates unless and until the Commission initiates that process. Provisional candidacy and related provisions of AB 1319 sunset on December 31, 2031.

Implications for Development Projects

For project proponents, the key implications of AB 1319 include:

• Immediate Candidate-Level Protections. Once CDFW issues findings, provisional candidate protections attach immediately, triggering CESA “take” prohibitions. Projects that may cause “take” will generally require state authorization (e.g., an ITP even if a FESA permit exists, unless covered by the safe harbor noted above or CDFW issues a consistency determination where available).
• Dual Compliance Obligations and Narrow Safe Harbor. Federal permits do not substitute for CESA compliance. The safe harbor is limited to qualifying federal take authorizations in effect on or before January 19, 2025, and only while the entity is in full compliance with that authorization. New or modified federal permits after that date generally do not fall within the safe harbor.
• California Environmental Quality Act (CEQA). CEQA does not apply to actions CDFW or the Commission take under this law.
• Regulatory Uncertainty and Timing. Provisional candidacy does not itself automatically start the 12-month CESA status review clock; those timelines only apply to provisional candidates if the Commission directs a status review. As a result, candidate-level protections may persist while the Commission considers whether to initiate the formal process or remove the provisional candidate. This can extend uncertainty depending on agency workload and priorities. CDFW already faces significant backlogs in processing ITPs, consistency determinations, and guidance for listed species.
• Increased Scope of Potentially Affected Species. The bill applies to species native to California that, as of January 1, 2025, were listed or candidates for listing under FESA and not already protected by CESA. External estimates indicate approximately 80 animal and 65 plant species fall into this category.

Looking Ahead

AB 1319 expressly relies upon future federal changes that reduce species protections. Project proponents should monitor FESA rulemakings and CDFW’s response closely, as new provisional candidate listings could have material impacts on project schedules, “take” permitting requirements, compliance strategies, and potential liability considerations. 

Allen Matkins will continue to track the implementation of AB 1319 and provide updates as additional information becomes available. If you would like to learn more about AB 1319 or how it may affect your project, please contact Allen Matkins’ land use and natural resources team.