Western Spadefoot Toad Granted “Candidate” Species Status Under the California Endangered Species Act

At its August 12-13, 2026 meeting, the California Fish and Game Commission (Commission) unanimously found that a petition to list the western spadefoot toad (Spea hammondii) as threatened throughout its northern population range and endangered throughout its southern population range provides sufficient scientific information to indicate that the petitioned action may be warranted. The Commission’s decision designates the western spadefoot as a candidate species under the California Endangered Species Act (CESA). CESA’s take protections will apply once the statutory notice process is completed (likely later in August or in September of this year). Once applicable, candidate species generally receive the same protections against unauthorized take as species formally listed as threatened or endangered.

Developer clients with projects in the western spadefoot’s California range should act now. Once candidate protections become effective, construction activities that could result in take will require CESA authorization, regardless of existing CEQA approvals or local permits. Projects with ground-disturbing work in suitable habitat should promptly assess whether activities can fully avoid take, determine whether existing conservation plans provide coverage, and engage CDFW early if an incidental take permit may be needed. Delays in addressing these requirements could affect project schedules and budgets.

PETITION

On September 24, 2025, the Center for Biological Diversity submitted its petition to list the northern population of the western spadefoot as threatened and the southern population as endangered throughout their respective ranges. Before the Commission’s decision, the western spadefoot was designated a California Species of Special Concern, a status that required consideration of potential impacts under the California Environmental Quality Act (CEQA) but did not itself trigger CESA’s prohibition on take. The Petition alleges that existing regulatory mechanisms are inadequate to prevent continued population declines.

In January 2026, the California Department of Fish and Wildlife (CDFW) evaluated the Petition. CDFW ultimately determined that the Petition was complete and recommended that the Commission find there was sufficient scientific information to indicate that the requested listing actions may be warranted.

AFFECTED POPULATIONS

The Petition differentiates between genetically distinct northern and southern populations of the western spadefoot. The two populations are separated generally by the Transverse Ranges in Southern California. The northern population range includes portions of the Central Valley, Sierra Nevada foothills, and coastal California, while the southern population occurs across portions of Southern California. Together, the petitioned populations encompass the western spadefoot’s California distribution. Accordingly, once candidate protections become effective, the take prohibition will apply to the western spadefoot throughout its California range.

FEDERAL STATUS

The Commission’s decision occurs while a separate federal listing process remains pending under the federal Endangered Species Act (ESA). In 2012, the western spadefoot was petitioned for federal listing, and in December 2023 the U.S. Fish and Wildlife Service proposed to list the species as threatened. The federal proposal remains pending, and no final federal listing rule has been issued.

Until a final federal listing rule becomes effective, the proposed federal listing does not itself impose the ESA Section 9 take prohibition applicable to listed species. Federal agencies may nevertheless address the proposed species in connection with federal approvals and consultations. The timing and outcome of the federal listing process remain uncertain.

CANDIDATE SPECIES PROTECTIONS

A CESA candidate species generally receives the same protection from unauthorized take as a species formally listed as threatened or endangered. CESA prohibits the unauthorized “take” of listed and candidate species. “Take” is defined to mean to “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” (Fish & Game Code, § 86.) Impacts to suitable habitat do not, standing alone, necessarily constitute take; the relevant question is whether project activities are reasonably expected to result in one of the prohibited acts against individual western spadefoot.

Where take cannot be fully avoided, project proponents commonly obtain authorization through an incidental take permit (ITP) under Fish and Game Code Section 2081. An applicant must demonstrate, among other things, that the take is incidental to an otherwise lawful activity, that impacts of the authorized take will be minimized and fully mitigated, that adequate funding is provided to implement and monitor the required measures, and that permit issuance will not jeopardize the continued existence of the species.

2084 AUTHORIZATION

At its August 2026 meeting, the Commission also approved Petition 2026-12, submitted by the Center for Biological Diversity and the Large-scale Solar Association, establishing a proposed Section 2084 pathway for incidental take of western spadefoot during the candidacy period for a narrow category of qualifying utility-scale solar photovoltaic and solar-plus-battery storage projects on specified agricultural lands on the San Joaquin Valley floor. The pathway is not a general development exemption. Eligible projects must satisfy detailed registration, survey or presumed-occupancy, avoidance, minimization, mitigation, funding, CEQA, entitlement, and CDFW-approval requirements before take authorization becomes effective. Qualifying projects therefore may be able to obtain take authorization without a project-specific Section 2081 ITP, but only if all requirements of the final Section 2084 regulation are satisfied.

NEXT STEPS IN CESA LISTING PROCESS

The Commission’s August 2026 vote designates western spadefoot as a candidate, but the CESA take prohibition does not attach merely upon the vote. Fish and Game Code Section 2085 applies CESA’s take provisions to a candidate species once the required notice has been given under Section 2074.4. The Commission must also publish its candidacy finding in the California Regulatory Notice Register. Projects with construction underway should therefore confirm the date the required notice is completed and candidate protections become operative (likely late August or early September) rather than assuming that the August 13 vote itself triggered the take prohibition.

CDFW will now undertake a 12-month status review of the western spadefoot and prepare a written report and recommendation to the Commission concerning whether listing is warranted. The Commission will later make a final determination on the Petition. Candidate protections remain important during this review period regardless of whether the Commission ultimately lists the species as threatened or endangered.

PRACTICAL IMPLICATIONS

• CEQA-Approved Projects Still Face CESA Exposure

The Commission’s decision has significant implications for projects within the western spadefoot’s California range, including projects that have already completed CEQA review or obtained land use approvals. Once candidate protections become effective, CEQA compliance will not exempt a project from CESA’s prohibition on unauthorized take. Existing CEQA mitigation measures may remain adequate for CEQA purposes, but they do not, standing alone, authorize take under CESA. If remaining construction activities could result in take and existing measures cannot fully avoid that take, the project will need an ITP or other applicable take authorization before conducting the take-causing activities.

• When Will an ITP be Required?

An ITP is not automatically required merely because suitable western spadefoot habitat is present or will be affected. The legal trigger is anticipated “take,” not habitat impact alone. Although habitat degradation or modification is not independently included within CESA’s statutory definition of take, habitat disturbance can result in prohibited take where it causes the capture or killing of individual animals. This distinction is particularly important for western spadefoot because individuals may remain underground in upland habitat for substantial portions of the year, creating potential take risk from grading and other ground-disturbing activities even when animals are not detected during preconstruction surveys.

CDFW has already indicated in 2026 CEQA comment letters how it expects projects to approach this issue. CDFW has recommended a site-specific habitat assessment, followed by focused surveys where suitable habitat occurs, consultation with CDFW regarding appropriate avoidance, minimization, and mitigation measures, and acquisition of an ITP if full avoidance cannot be achieved. Accordingly, projects proposing substantial ground disturbance in suitable western spadefoot habitat should engage CDFW early and account in project schedules and budgets for the possibility that CDFW will require an ITP. Demonstrating complete avoidance may be difficult where ground disturbance will occur in suitable upland habitat because western spadefoot can remain underground and undetected for extended periods.

• CEQA and CESA Mitigation Standards are Not Equivalent

CEQA mitigation designed to reduce impacts to western spadefoot below a level of significance does not necessarily satisfy CESA. Where an ITP is required, Fish and Game Code Section 2081 requires that impacts of authorized take be minimized and fully mitigated, and that adequate funding be provided to implement required measures. CDFW, therefore, may require additional avoidance and minimization measures, compensatory mitigation, conservation easements, mitigation credits, funding assurances, or other measures beyond those contained in an existing CEQA document.

This distinction is particularly important for projects with existing mitigation measures adopted while western spadefoot was a Species of Special Concern. Measures requiring preconstruction surveys, biological monitoring, avoidance buffers, relocation, or habitat compensation may continue to serve CEQA purposes, but they do not themselves provide CESA take authorization. Indeed, a measure requiring a biologist to capture or relocate an individual western spadefoot may itself involve “take” and therefore require CESA authorization once candidate protections become effective.

• Check Existing Programmatic Take Coverage

Before pursuing a project-specific ITP, proponents should determine whether their project is covered by an existing Natural Community Conservation Plan (NCCP), Habitat Conservation Plan (HCP), or other conservation or permitting program that provides take authorization for western spadefoot. The availability and scope of any such coverage will depend on the applicable plan, state and federal permits, implementing agreement, and provisions addressing candidate or newly listed species.

• Limited Section 2084 Alternative for Qualifying Solar Projects

As discussed above, the Commission approved a Section 2084 pathway for a limited category of qualifying utility-scale solar photovoltaic and solar-plus-battery-storage projects. But the Section 2084 process is not a general exemption from CESA, does not automatically authorize take, and qualifying projects must still satisfy extensive eligibility criteria and project-specific requirements before relying on that authorization.

• Candidacy Does Not Automatically Trigger Supplemental CEQA Review

The western spadefoot’s change in regulatory status does not, standing alone, invalidate an existing CEQA document or automatically require subsequent or supplemental CEQA review. Projects with certified or adopted CEQA documents generally remain subject to the standards governing subsequent environmental review. Projects requiring additional discretionary approvals or proposing project modifications should separately evaluate whether additional CEQA review is required, and lead agencies preparing new CEQA documents should address the species’ candidate status.

• Existing and Under-Construction Projects Should Act Now

Projects that are already approved or under construction should promptly evaluate remaining activities. Prior CEQA approval, adopted mitigation measures, or local grading and building permits do not independently authorize future take under CESA. Projects with remaining ground-disturbing activities in areas that may support western spadefoot should determine before candidate protections become effective whether those activities can fully avoid take, are covered by an existing take authorization or conservation plan, qualify for the Section 2084 process, or will require an ITP. Where an ITP is obtained solely because of western spadefoot candidacy, project proponents should also consider seeking express permit language addressing termination or modification of western-spadefoot-specific obligations if the species later ceases to be a candidate and is not formally listed.

We will continue tracking the implementation of the Commission’s candidacy decision, the effective date of candidate protections, CDFW guidance and permitting practices, the Section 2084 process, and CDFW’s status review. If you would like to learn more about how western spadefoot candidacy may affect an existing or proposed project, please contact the Allen Matkins natural resources team.