Bill Text

PDF |Add To My Favorites |Track Bill | print page

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

SHARE THIS:share this bill in Facebookshare this bill in Twitter
Date Published: 04/18/2018 04:00 AM
AB2627:v98#DOCUMENT

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 birds: Migratory nongame Bird Treaty Act. Act: incidental take.
Existing federal law, the Migratory Bird Treaty Act 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 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 provisions of the code.

This bill would clarify that the exception to the above-described prohibition only applies if a rule or regulation made by the United States Secretary of the Interior is consistent with any provision of the Fish and Game Code, or any rule, regulation, or order made or adopted pursuant to the code, that gives further protection to migratory nongame birds, their nests, or eggs.

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 complies with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds, as specified. As a condition of engaging in that activity, the bill would require an entity to certify to the department that the entity will comply with best management practices. The bill would require the department, not later than December 31, 2019, to identify best management practices and establish certification guidelines for purposes of these provisions, and would provide for an entity to follow alternative practices and guidelines until their identification and establishment by the department. The bill would require the department to engage in outreach to encourage industries to engage in best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds. The bill would also require the department to work with industry participants and other stakeholders, when practicable, to incentivize research on, and development of, best management practices, including technologies that may improve those practices.
Because submission of false, inaccurate, or otherwise misleading information in a certification 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: NOYES   Local Program: NOYES  

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.
 It (a) For purposes of this section, the following terms have the following meanings:
(1) “Best management practices” means best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds.
(2) “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.
(b) It is unlawful to take or possess any migratory nongame bird as designated in the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.) or any part of a migratory nongame bird except as provided by rules and regulations that are adopted by the United States Secretary of the Interior under provisions of that act and consistent with any provision of this code, or any rule, regulation, or order made or adopted pursuant to this code, that gives further protection to migratory nongame birds, their nests, or eggs. bird, except as provided in subdivision (c).
(c) An entity may take a migratory nongame bird if the take is incidental to otherwise lawful activity and all of the following criteria are met:
(1) Availability of best management practices for the activity, as identified pursuant to subdivision (d), or, until identification of those practices, in a publication listed in subdivision (e).
(2) The entity certifies to the department, in accordance with the guidelines established pursuant to subdivision (d) or, until establishment of those guidelines, with the guidelines set forth in subdivision (e), that the entity will comply with the best management practices for that activity.
(3) The entity carries out the activity as certified pursuant to paragraph (2).
(d) Not later than December 31, 2019, the department shall identify best management practices for activities that may result in take of migratory nongame birds and establish certification guidelines for compliance with best management practices under this section, as follows:
(1) The best management practices identified by the department shall be determined based on the best available scientific information and other relevant information. The department shall prioritize practices, and the use of technologies, that have the greatest impact in avoiding and minimizing take of migratory nongame birds and mitigating unavoidable significant impacts on migratory nongame birds. In identifying best management practices, the department may rely on similar best management practices developed by other state and federal agencies.
(2) The certification guidelines established by the department may authorize an entity to self-certify, or, at the department’s discretion, may require the department’s approval as a condition of certification. At a minimum, the guidelines shall do all of the following:
(A) Establish deadlines for filing compliance documents.
(B) Prohibit a self-certifying entity from commencing any activity that may result in take of a migratory nongame bird until the entity has notified the department of its self-certification and ensured that the activity will be carried out in compliance with this section.
(C) Specify methods of verifying compliance over the time period during which take may occur.
(D) Specify procedures for notifying the department of noncompliance and methods for remedying noncompliance within 60 days of that notice.
(E) Require submission of an annual status report, until completion of the activity, that contains, at a minimum, the following information:
(i) The name of the entity, including the name and contact information of the person responsible for submitting the annual report.
(ii) A description of the activity, including the location, type, date of commencement, and expected duration of the activity.
(iii) Certification that the entity complied with best management practices, and properly maintained and operated all technologies connected with those practices, in the previous year.
(iv) Identification of any additional best management practices that the entity intends to employ in the future.
(v) The number, species, and date of take, if known, of migratory nongame birds taken as a result of the activity in the previous year.
(e) (1) Until the department identifies best management practices for an activity pursuant to paragraph (1) of subdivision (d), best management practices shall be the best management practices for the activity contained, if available, in one or more of the following publications:
(A) The manual published by the Avian Power Line Interaction Committee entitled “Reducing Avian Collisions with Power Lines: The State of the Art in 2012.”
(B) The document published by the Avian Power Line Interaction Committee entitled “Suggested Practices for Avian Protection on Power Lines: The State of the Art in 2006.”
(C) The United States Fish and Wildlife Service Land-Based Wind Energy Guidelines dated March 23, 2012.
(D) The guidance document published by the United States Fish and Wildlife Service entitled “Recommended Best Practices for Communication Tower Design, Siting, Construction, Operation, Maintenance, and Decommissioning,” as revised in August 2016.
(E) The guidance document published by the Federal Communications Commission entitled “Opportunities to Reduce Bird Collisions with Communication Towers while Reducing Tower Lighting Costs,” as updated in January 2017.
(F) The advisory circular published by the Federal Aviation Administration entitled “Obstruction Marking and Lighting Advisory Circular,” as revised in December 2015.
(2) Until the department establishes certification guidelines pursuant to paragraph (2) of subdivision (d), an entity may self-certify by submitting to the department, in a form and manner prescribed by the department, a report that contains all of the following:
(A) The best management practices that will be employed.
(B) The species of migratory nongame birds that are expected to occur at the site.
(C) Methods of verifying compliance with the best management practices over the time period during which take may occur.
(D) Procedures for notifying the department of noncompliance and methods for remedying noncompliance within 60 days of that notice.
(E) An agreement to submit to the department an annual status report that contains the information specified in subparagraph (E) of paragraph (2) of subdivision (d).
(f) Not later than 60 days after receiving a certification or annual status report pursuant to this section, 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.
(g) The department may exempt an entity from compliance with the requirements of this section if the department determines that take resulting from an activity is not intended and will have a de minimis effect on migratory nongame birds.
(h) The department shall encourage industries that lack peer-reviewed and published best management practices to consult with the department on best management practices. When practicable, the department shall work with industry participants and other stakeholders to incentivize research on, and development of, best management practices, including technologies that may improve these practices.
(i) (1) Nothing in this section shall be construed to 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.
(2) 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.

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.