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AB-2627 Migratory nongame birds: Migratory Bird Treaty Act: authorized take.(2017-2018)

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Date Published: 08/06/2018 02:00 PM
AB2627:v95#DOCUMENT

Amended  IN  Senate  August 06, 2018
Amended  IN  Senate  July 05, 2018
Amended  IN  Assembly  May 25, 2018
Amended  IN  Assembly  April 17, 2018

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 2627


Introduced by Assembly Member Kalra

February 15, 2018


An act to amend Section 3513 of the Fish and Game Code, relating to migratory birds.


LEGISLATIVE COUNSEL'S DIGEST


AB 2627, as amended, Kalra. Migratory nongame birds: Migratory Bird Treaty Act: authorized take.
Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing state law makes unlawful the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the act, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act. Existing state law makes it a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information on any application or other document offered or otherwise presented to the Department of Fish and Wildlife for any purpose, including, but not limited to, obtaining a license, tag, permit, or other privilege or entitlement pursuant to the Fish and Game Code or regulations adopted pursuant to the code.
This bill would permit an entity to take a migratory nongame bird, as defined, if the take is incidental to otherwise lawful activity and the entity provides certification to the department of the entity’s implementation of deem an entity in compliance with the state prohibition against taking any migratory nongame bird, as defined, if the potential take is incidental to otherwise lawful activity, the entity completes a certification process by submitting certain information to the department, and the entity implements best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds, as identified by the entity pursuant to specified guidelines, so that there is no that are intended to avoid significant adverse impact, impacts, as defined, to migratory nongame birds from the activity. birds. The bill would require, as a condition of this incidental take authority, part of the certification process, the submission of an annual status reports report to the department after the initial certification. The bill would specify the information to include in a certification and annual status reports.
The bill would also specify 2 exempt the take of migratory birds from the state prohibition against taking any migratory nongame bird in other circumstances in which an entity may take a migratory nongame bird. First, the bill would permit circumstances, including, among others, if the take that is accidental, as defined, and results from an act that occurs on a farm or ranch in the course of otherwise lawful routine and ongoing agricultural activities. Second, the bill would permit take if the department has determined that the take will not have a significant adverse impact on migratory nongame birds.
The bill would require the department, no later than December 31, 2019, to establish guidelines for compliance with these provisions.
Because submission of false, inaccurate, or otherwise misleading information in a certification or annual status report to the department pursuant to these provisions would be a crime, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 Section 3513 of the Fish and Game Code is amended to read:

3513.
 (a) For purposes of this section, the following terms have the following meanings:
(1) “Accidental” means unintended or unforeseen.
(2) “Best management practices” means best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds so that there is no are intended to avoid significant adverse impact impacts to migratory nongame birds from the activity or activities that the practices are designed to address. birds.
(3) “Migratory nongame bird” means a migratory nongame bird as designated in the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.) as of January 1, 2017.
(4) “Significant adverse impact to migratory nongame birds” means an impact that has the potential, either individually or cumulatively, to significantly reduce the number or range of a migratory nongame bird, as determined based on the best available scientific information.
(b) It is unlawful to take or possess any migratory nongame bird or any part of a migratory nongame bird, except as provided in subdivision (c) or (k).
(c) Notwithstanding subdivision (b), an entity may take a migratory nongame bird in any of the following circumstances:
(1) The take is incidental to otherwise lawful activity and, unless paragraph (2) or (3) applies, the entity provides to the department certification, in accordance with subdivision (d), of the entity’s implementation of best management practices for the activity, and annual status reports pursuant to subdivision (g).

(2)The take is accidental, and results from an act that occurs on a farm or ranch in the course of otherwise lawful routine and ongoing agricultural activities. Accidental take pursuant to this paragraph shall not be subject to the requirements in paragraph (1), and this paragraph shall not be construed to require any entity to comply with best management practices or provide certification pursuant to this section in order for the take to be exempt from the prohibition in subdivision (b).

(3)The department has determined that the take will not have a significant adverse impact to migratory nongame birds.

(d)Certification pursuant to paragraph (1) of subdivision (c) shall be made in a form and manner prescribed by the department, and shall include, at a minimum, the following information:

(1)The name of the entity, including the name and contact information of the person responsible for submitting the certification.

(2)A description of the activity, including the location, type, and date of commencement of the activity, and the expected duration of the activity or continuing impacts of the activity.

(3)For activities that have not commenced as of the certification date, the following additional information:

(A)The best management practices, identified by the entity pursuant to subdivision (e) or (f), to be implemented during the period for which the entity seeks incidental take authority.

(B)A description of the expected scope and magnitude of impacts, if any, to migratory nongame birds.

(4)For activities that are ongoing, or have been completed but have continuing impacts to migratory nongame birds, as of the certification date, the following additional information:

(A)The best management practices, identified by the entity pursuant to subdivision (e) or (f), that, during the year preceding certification, were either of the following:

(i)Implemented by the entity.

(ii)Not implemented by the entity as expected. In the case of best management practices described in this clause, the certification shall include a description of measures the entity will take to ensure proper implementation of the practices, when necessary, in the future.

(B)A description of the scope and magnitude of impacts, if any, to migratory nongame birds from activities during the year preceding certification.

(c) Any entity that engages in otherwise lawful activities that may result in incidental take that causes a significant adverse impact to migratory nongame birds shall be deemed in compliance with this section if that entity completes the certification requirements set forth in subdivision (d) and implements best management practices set forth in that certification, except as provided in subdivision (g).
(d) To complete the certification for purposes of subdivision (c), an entity shall do all of the following:
(1) Submit to the department a written certification that includes all of the following:
(A) The name and contact information of the entity.
(B) A description of the activity or activities for which best management practices will be implemented, including the location, the nature, the date of commencement, and the duration of the activity or activities. For existing activities, the description may include best management practices already being implemented.
(C) A description of the best management practices to be implemented.
(2) Submit to the department, by January 31 of each calendar year after submitting the certification for the duration of the certification, a written annual report that includes all of the following:
(A) A description of all best management practices that were implemented during the preceding year.
(B) If any best management practices included in the certification were not implemented during the preceding year, an explanation for that failure to implement.
(C) A description of the scope and magnitude of any significant adverse impacts to migratory nongame birds as a result of the activity or activities.
(e) Except as provided in subdivision (f), an entity shall identify best management practices for purposes of subdivision (d) based on the best available scientific information and other relevant information, including, but not limited to, the following, as applicable:
(1) Peer-reviewed scientific studies or reports.
(2) Guidance documents accepted by state and federal agencies.
(3) Documentation prepared to apply for permits and other approvals issued by public agencies.
(f) If an entity has been issued, maintains a permit or approval issued by a public agency, a permit or approval for an activity identified pursuant to subdivision (d), the entity may rely on the permit or approval as evidence of approval, or documents prepared to support the permit or approval, to demonstrate that its activities are not resulting in take that causes a significant adverse impact to migratory nongame birds or that it has implemented best management practices for purposes of subdivision (d), subject to the following conditions:
(1) The permit or approval was issued pursuant to a process that included an assessment of the activity’s impacts on migratory nongame birds and requires, when necessary, implementation of best management practices to address those impacts.
(2) The department does not determine the permit or approval to be inconsistent with the purposes of this chapter.

(g)Each year after certification pursuant to paragraph (1) of subdivision (c), an entity shall submit to the department a status report for the covered activity, in a form and manner prescribed by the department, that includes, at a minimum, the information that would be required for certification pursuant to subdivision (d).

(h)

(g) (1) Incidental take authority pursuant to paragraph (1) of subdivision (c) shall be effective immediately upon certification and shall continue in effect unless, no later than 90 120 days after the department receives the certification or an annual status report pursuant to subdivision (g), (d), the department finds that the entity is not in compliance with this section and issues the entity a notification of noncompliance.
(2) A notification of noncompliance issued pursuant to paragraph (1) shall identify the reasons for the department’s finding and specify a reasonable grace period for the entity to come into compliance with this section. The entity shall be deemed to remain exempt from in compliance with the prohibition in subdivision (b) during the specified grace period.
(3) For purposes of a finding pursuant to paragraph (1), in reviewing best management practices implemented by an entity, the department shall consider practical limitations to the implementation of certain best management practices at existing facilities, for ongoing operations, or for projects that have already received necessary permits or other approvals.

(i)

(h) (1) No later than December 31, 2019, the department shall, through a public consensus-based stakeholder process, establish guidelines for compliance with this section.
(2) In the case of the incidental take authority in paragraph (1) of subdivision (c), guidelines Guidelines established pursuant to this subdivision shall, at a minimum, specify both of the following:
(A) Procedures for the preparation and filing of certifications and annual status reports.
(B) Methods for verifying compliance over the time period during which take may occur.

(j)No later than 30 days after receiving a certification pursuant to paragraph (1) of subdivision (c) or an annual status report pursuant to subdivision (g), the department shall make the certification or report publicly available on its Internet Web site in a format that is readily accessible by members of the public.

(k)(1)This section does not supersede or otherwise limit any requirement or prohibition of the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3) or Section 3511.

(3) The department shall not establish guidelines pursuant to this subdivision that require an entity to divulge information that would violate laws enforced by, or rules or policies established by, the United States Department of Energy or the United States Department of Homeland Security for the physical security of infrastructure.
(4) The department shall not rely on the lack of guidelines established pursuant this subdivision as grounds for the delay or denial of any permits or other approvals.
(5) Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not apply to the development, adoption, or amendment of guidelines or criteria pursuant to this subdivision. These guidelines and criteria shall be posted on the department’s Internet Web site.
(i) No later than 60 days after receiving a certification or annual report pursuant to subdivision (d), the department shall make the certification or report publicly available on its Internet Web site in a format that is readily accessible by members of the public.
(j) This section does not alter the department’s authority under or the requirements and provisions of any of the following:
(1) The California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3).
(2) The California State Safe Harbor Agreement Program Act (Article 3.7 (commencing with Section 2089.2) of Chapter 1.5 of Division 3).
(3) The Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800) of Division 3).
(4) Section 3511.

(2)

(k) (1) This section shall not apply to take of a migratory nongame bird if the take is authorized pursuant to another provision of this code, or any rule, regulation, or order made or adopted pursuant to this code.

(3)

(2) This section shall not apply to the take of a migratory nongame bird if the take is authorized by either of the following: any of the following apply:
(A) A Take is authorized by a permit issued pursuant to federal law, unless the department determines that the permit is inconsistent with the purposes of this chapter and enforcement of this section against the federally permitted take would not violate clause 2 of Article VI of the United States Constitution.
(B) An Take is authorized by an order issued pursuant to Part 21 (commencing with Section 21.1) of Subchapter B of Chapter I of Title 50 of the Code of Federal Regulations.
(C) Take is accidental, and results from an act that occurs on a farm or ranch in the course of otherwise lawful routine and ongoing agricultural activities. Accidental take pursuant to this subparagraph shall not be subject to the requirements in subdivision (c) and this subparagraph shall not be construed to require any entity to comply with best management practices or provide certification pursuant to this section in order for the take to be exempt from the prohibition in subdivision (b).
(D) Take is authorized in writing by the department or otherwise permitted under federal law for the retrieval, possession, storage, transportation, or care for the migratory nongame bird, nest, or eggs, including, but not limited to, for the purposes of scientific research and wildlife rehabilitation.
(l) This section does not alter the department’s authority to review, approve, or deny permits, orders, or other approvals.

SEC. 2.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.