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

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Date Published: 07/05/2018 11:47 AM
AB2627:v96#DOCUMENT

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: incidental 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 complies with provides certification to the department of the entity’s implementation of 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 identified by the entity pursuant to specified guidelines, so that there is no significant adverse impact, as defined, to migratory nongame birds from the activity. The bill would require, as a condition of this incidental take authority, the submission of annual status reports to the department after certification. The bill would specify the information to include in a certification and annual status reports.
The bill would also specify 2 other circumstances in which an entity may take a migratory nongame bird. First, the bill would permit 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, not no later than December 31, 2019, to identify existing best management practices, as provided, and establish certification guidelines for purposes of compliance with 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. 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.

It

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 significant adverse impact to migratory nongame birds from the activity or activities that the practices are designed to address.
(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 as designated in the Migratory Bird Treaty Act or any part of such a migratory nongame bird except as provided by rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Treaty Act. 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.
(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, 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 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) (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 days after the department receives the certification or an annual status report pursuant to subdivision (g), 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 remain exempt from 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) (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 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.
(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.
(3) This section shall not apply to the take of a migratory nongame bird if the take is authorized by either of the following:
(A) 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 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.

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.
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)“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.

(3)“Significant impact on a migratory nongame bird species” means an impact that has the potential to significantly reduce the number or the range of a migratory nongame bird.

(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).

(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, through a public consensus-based stakeholder process, the department shall identify existing best management practices for activities that may result in a significant impact on a migratory nongame bird species 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 regarding best management practices in existence at the time of the department’s review. The department shall prioritize best management practices 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 that meet these requirements.

(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 a significant impact on a migratory nongame bird species until the entity has filed its self-certification of compliance pursuant to this section with the department.

(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 30 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 not have a significant impact on a migratory nongame bird species.

(h)An entity that has implemented best management practices and filed a self-certification report with the department shall be deemed in compliance with this section unless the department has notified the entity of the alleged noncompliance in writing within 90 days from the submission of the self-certification report. The department’s notification shall identify the reasons for the alleged noncompliance and shall provide the entity with a reasonable period of time to come into compliance that shall not be less than 60 days and not more than one year.

(i)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.

(j)(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.

(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.

(3) This section shall not apply to the take of a migratory nongame bird if the take is authorized by a permit issued pursuant to federal law.

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.