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SB-473 California Endangered Species Act.(2017-2018)

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Date Published: 03/22/2017 09:00 PM
SB473:v98#DOCUMENT

Amended  IN  Senate  March 22, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 473


Introduced by Senator Hertzberg

February 16, 2017


An act to amend Section 2080.1 of Sections 2061, 2075.5, 2080, 2080.1, 2084, and 2086 of, to add Sections 2081.3 and 2089.5 to, and to repeal Section 2081.5 of, the Fish and Game Code, relating to fish and wildlife.


LEGISLATIVE COUNSEL'S DIGEST


SB 473, as amended, Hertzberg. Protected species: incidental take: consistency determinations. California Endangered Species Act.
(1) Existing law, the California Endangered Species Act, prohibits the taking of an endangered or threatened species, except in certain situations. Under the act, the Department of Fish and Wildlife may authorize the take of listed species pursuant to an incidental take permit if the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, and the issuance of the permit would not jeopardize the continued existence of the species.
This bill would also apply the take prohibition to public agencies.
This bill would authorize the department to develop programmatic incidental take permits for issuance to applicants with an ongoing responsibility for the operation, maintenance, and repair of their property who could benefit from a permit that covers more than one property with similar management objectives spread over multiple locations if the applicant meets certain requirements.

Existing law

(2) The California Endangered Species Act provides that if any person obtains from the United States Secretary of the Interior or the United States Secretary of Commerce an incidental take statement or incidental take permit pursuant to the federal Endangered Species Act of 1973 that authorizes the taking of an endangered species or threatened species listed pursuant to the federal act that is an endangered species, threatened species, or candidate species pursuant to the California Endangered Species Act, act, no further authorization or approval is necessary under the California act for that person to take that species, if that person notifies the Director of Fish and Wildlife, as specified, and the director determines that the statement or permit is consistent with the California act. This process is commonly referred to as a consistency determination.
This bill would expand these provisions by authorizing a person who obtains any take authorization issued pursuant to the federal act to seek a consistency determination from the director.
Under existing law, these the consistency determination provisions become inoperative on the effective date of an amendment, to either of 2 sections of the federal act, that alters the requirements for issuing incidental take statements or incidental take permits.
This bill would instead make these provisions inoperative on the effective date of any amendment to the federal act or regulation adopted pursuant to the federal act.
(3) The California Endangered Species Act exempts a surface mining operation, if it has been issued a permit pursuant to the Surface Mining and Reclamation Act of 1975, is in compliance with the permit with regard to matters relating to plants, and is in compliance with any memorandum of understanding with the Department of Fish and Wildlife, from criminal prosecution pursuant to the Fish and Game Code for any take of a threatened or endangered plant species that is incidental to the surface mining operation.
This bill would repeal this exemption.
(4) The California Endangered Species Act permits the Fish and Game Commission to authorize, subject to terms and conditions it prescribes, the taking of any candidate species, or the taking of any fish by hook and line for sport that is listed as an endangered, threatened, or candidate species.
The act requires the Department of Fish and Wildlife, in cooperation with the Department of Food and Agriculture and other specified entities, to adopt regulations that authorize locally designed voluntary programs for routine and ongoing agricultural activities on farms or ranches that encourage habitat for candidate, threatened, and endangered species, and wildlife generally. The act requires the programs to include, among other things, management practices that will, to the maximum extent practicable, avoid and minimize take of listed species, while encouraging the enhancement of habitat. The act authorizes the take of species listed as candidate, threatened, or endangered incidental to routine, ongoing agricultural activities, while the management practices are followed.
This bill would limit these take exemptions by authorizing take under the exemptions only if the take does not jeopardize the continued existence of the species.
(5) The California State Safe Harbor Agreement Program Act establishes a program until January 1, 2020, to encourage landowners to manage their lands voluntarily, by means of state safe harbor agreements approved by the Department of Fish and Wildlife, to benefit endangered, threatened, or candidate species without being subject to additional regulatory restrictions as a result of their conservation efforts. The California State Safe Harbor Agreement Program Act authorizes the department to authorize specified acts that are otherwise prohibited pursuant to the California Endangered Species Act by entering into a safe harbor agreement.
This bill would require the department to prioritize the review of, and decision to approve, an agreement if the property proposed to be enrolled in the agreement is encumbered by a conservation easement that will result in a permanent commitment to protect, restore, and maintain habitat conditions of greater value to one or more of the species proposed for inclusion in the agreement. The bill would also require the department, if the property proposed to be enrolled in an agreement is subject to a conservation easement, to rely on the measures in conservation easement to fulfill the requirements of issuing an agreement to the maximum extent practicable.
(6) The California Endangered Species Act defines “conserve,” “conserving,” and “conservation” for purposes of the act to mean to use, and the use of, all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the act are no longer necessary.
This bill would modify the definition by specifying that the measures provided pursuant to the act are no longer necessary for the species to survive in the wild in California.
(7) The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species and to add or remove species from either list if it finds, upon the receipt of sufficient scientific information, as specified, that the action is warranted. The act requires the Department of Fish and Wildlife to recommend, and the commission to adopt, criteria for determining if a species is endangered or threatened. Under the act, an interested person may petition the commission to add a species to, or remove a species from, either the list of endangered species or the list of threatened species. At the meeting scheduled for final consideration of the petition, the act requires the commission to make a finding that the petitioned action is warranted or not warranted.
This bill would require this finding to be based on the best available scientific information.
(8) Under existing law, any violation of the Fish and Game Code, or of any rule, regulation, or order made or adopted under the code, is generally a crime.
To the extent that this bill expands the definition of a crime, the bill would impose a state-mandated local program.
(9) 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: NOYES  

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


SECTION 1.

 Section 2061 of the Fish and Game Code is amended to read:

2061.
 “Conserve,” “conserving,” and “conservation” mean to use, and the use of, all methods and procedures which that are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary. necessary for the species to survive in the wild in California. These methods and procedures include, but are not limited to, all activities associated with scientific resources management, such as research, census, law enforcement, habitat acquisition, restoration and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.

SEC. 2.

 Section 2075.5 of the Fish and Game Code is amended to read:

2075.5.
 (a) At the meeting scheduled pursuant to Section 2075, the commission shall hold a public hearing on the petition and shall receive information, written or otherwise, and oral testimony. After the conclusion of oral testimony from the commission and department staff, the petitioner, or any other persons, the commission may close the public hearing and the administrative record for the commission’s decision pursuant to this section.
(b) After the commission closes the public hearing, the administrative record for the commission’s decision is closed and it shall not be reopened except as provided in subdivision (c). Once the public hearing is closed, a person shall not submit further information to the commission for consideration on that petition and the commission shall not accept any further information for consideration on that petition except as provided in subdivision (c).
(c) The administrative record for the commission’s decision pursuant to this section shall not be reopened once the commission closes the public hearing unless one of the following occurs prior to before the commission’s decision:
(1) There is a change in state or federal law or regulation that has a direct and significant impact on the commission’s determination as to whether the petitioned action is warranted.
(2) The commission determines that it requires further information to evaluate whether the petitioned action is warranted. If the commission makes that determination during its deliberation, the commission may request, on the record at the scheduled meeting or at a continued meeting, further information on any issue relevant to making its determination as to whether the petitioned action is warranted. Any request by the commission pursuant to this paragraph shall specify a date by which the information must be submitted to the commission and shall serve to reopen the administrative record for the limited purpose of receiving further information relating to the issues specified by the commission in the request. Commission and department staff, the petitioner, or any other person may submit information in response to a request pursuant to this paragraph.
(d) The commission, in its discretion, may either close the public hearing and continue the meeting on the petition for the purpose of deliberation or continue both the public hearing and the meeting on the petition to a subsequent date which that is no later than 90 days after the meeting scheduled pursuant to Section 2075, and subject to applicable notice and agenda requirements. If the commission closes the public hearing but continues the meeting for the purpose of deliberation, a person shall not submit, and the commission shall not receive, further information relating to the petition except as provided in subdivision (c).
(e) At the meeting scheduled pursuant to Section 2075, or at a continued meeting scheduled pursuant to subdivision (d), the commission shall make one of the following findings: findings based on the best available scientific information:
(1) The petitioned action is not warranted, in which case the finding shall be entered in the public records of the commission and the petitioned species shall be removed from the list of candidate species maintained pursuant to Section 2074.2.
(2) The petitioned action is warranted, in which case the commission shall publish a notice of that finding and a notice of proposed rulemaking pursuant to Section 11346.4 of the Government Code, to add the species to, or remove the species from, the list of endangered species or the list of threatened species. Further proceedings of the commission on the petitioned action shall be made in accordance with Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code.

SEC. 3.

 Section 2080 of the Fish and Game Code is amended to read:

2080.
 No person or public agency shall import into this state, export out of this state, or take, possess, purchase, or sell within this state, any species, or any part or product thereof, that the commission determines to be an endangered species or a threatened species, or attempt any of those acts, except as otherwise provided in this chapter, the Native Plant Protection Act (Chapter 10 (commencing with Section 1900) of this code), or the California Desert Native Plants Act (Division 23 (commencing with Section 80001) of the Food and Agricultural Code).

SECTION 1.SEC. 4.

 Section 2080.1 of the Fish and Game Code is amended to read:

2080.1.
 (a) Notwithstanding any other provision of this chapter, or Chapter 10 (commencing with Section 1900) or Chapter 11 (commencing with Section 1925) of Division 2, but subject to subdivision (c), if any person obtains from the United States Secretary of the Interior or the United States Secretary of Commerce an incidental take statement pursuant to Section 1536 of Title 16 of the United States Code or Code, an incidental take permit pursuant to Section 1539 of Title 16 of the United States Code Code, or any other authorization issued pursuant to Chapter 35 (commencing with Section 1531) of Title 16 of the United States Code that authorizes the taking of an endangered species or a threatened species that is listed pursuant to Section 1533 of Title 16 of the United States Code and that is an endangered species, threatened species, or a candidate species pursuant to this chapter, no further authorization or approval is necessary under this chapter for that person to take that endangered species, threatened species, or candidate species identified in, and in accordance with, the incidental take statement or statement, incidental take permit, permit, or other take authorization, if that person does both of the following:
(1) Notifies the director in writing that the person has received an incidental take statement or statement, an incidental take permit permit, or other take authorization issued pursuant to the federal Endangered Species Act of 1973 (16 U.S.C.A. Sec. 1531 et seq.).
(2) Includes in the notice to the director a copy of the incidental take statement or statement, incidental take permit. permit, or other take authorization.
(b) Upon receipt of the notice specified in paragraph (1) of subdivision (a), the director shall immediately have published in the General Public Interest section of the California Regulatory Notice Register the receipt of that notice.
(c) Within 30 days after the director has received the notice described in subdivision (a) that an incidental take statement or statement, an incidental take permit permit, or other take authorization has been issued pursuant to the federal Endangered Species Act of 1973, the director shall determine whether the incidental take statement or statement, incidental take permit permit, or other take authorization is consistent with this chapter. If the director determines within that 30-day period, based upon substantial evidence, that the incidental take statement or statement, incidental take permit permit, or take authorization is not consistent with this chapter, then the taking of that species may only be authorized pursuant to this chapter.
(d) The director shall immediately publish the determination pursuant to subdivision (c) in the General Public Interest section of the California Regulatory Notice Register.
(e) Unless deleted or extended by a later enacted statute that is chaptered before the date this section is repealed, this section shall remain in effect only until, and is repealed on, the effective date of an amendment to Chapter 35 (commencing with Section 1531) of Title 16 of the United States Code or a regulation adopted pursuant to that chapter, as applicable.
(f) If the director becomes aware that this section has been repealed pursuant to subdivision (e), the director shall notify the Legislature of that fact pursuant to Section 9795 of the Government Code.

SEC. 5.

 Section 2081.3 is added to the Fish and Game Code, to read:

2081.3.
 (a) The department may develop programmatic incidental take permits for issuance to applicants with an ongoing responsibility for the operation, maintenance, and repair of their property who could benefit from a permit that covers more than one property with similar management objectives spread over multiple locations if all of the following conditions are met:
(1) The applicant is in full compliance with an incidental take permit issued pursuant to subdivision (b) of Section 2081 that has a nexus to, and that may serve has the basis for a transition to, a programmatic incidental take permit.
(2) The applicant pays any fee imposed by the department pursuant to this paragraph. The department may assess fees to cover the reasonable costs of issuing and administering a programmatic incidental take permit. The fees specified in Section 2081.2 do not apply to a programmatic incidental take permit issued pursuant to this section.
(3) The applicant agrees to comply with any conditions, requirements, and limitations that the department determines to be necessary to ensure that the conservation standards of Section 2081 are fulfilled.
(b) The department shall not issue a programmatic incidental take permit pursuant to this section if the proposed activities present unique and unusual harm to the affected species or if the harm from the proposed activities to the affected species is specific to the particular location of the property.

SEC. 6.

 Section 2081.5 of the Fish and Game Code is repealed.
2081.5.

If an ongoing surface mining operation has been issued a permit pursuant to Section 2770 of the Public Resources Code by the lead agency, as defined in Section 2728 of the Public Resources Code, is in compliance with the permit with regard to matters relating to plants, and is in compliance with any memorandum of understanding with the department for any of the purposes specified in Section 2081 of this code, the following provisions shall apply:

(a)The surface mining operator is not liable for criminal prosecution pursuant to this code for any take of a threatened or endangered plant species that is incidental to the surface mining operation.

(b)If a plant species that exists on the private property of the surface mining operator is added to the list of threatened species or endangered species pursuant to this chapter after the date that the operator was issued the permit, or if a plant species on the list of threatened species or endangered species adopted pursuant to this chapter is newly discovered on the private property of the operator after that date, the department shall notify the operator by mail within 14 days of the addition to the list or knowledge of the new discovery by the department. Within 30 days from the date of the notification, the department shall meet with the operator to discuss an interim and permanent plan for the protection of the newly added or newly discovered plant species. Within 60 days of the initial meeting with the operator, the department shall issue reasonable and feasible interim management measures required to protect the newly added or newly discovered plant species that take into account the economic impact on the surface mining operation. The department shall work with the operator to develop and finalize a reasonable memorandum of understanding for one of the purposes specified in Section 2081 for the protection of the newly added or newly discovered plant species as expeditiously as possible. Both the interim management measures and the final memorandum of understanding shall, to the extent feasible, avoid interference with ongoing surface mining operations. The department shall send a copy of the final memorandum of understanding to the lead agency that issued the permit to the operator for the lead agency’s information.

(c)The surface mining operator shall pay a fee to the department in the amount the department determines is necessary to pay the department’s actual costs incurred in preparing interim management measures and developing and finalizing a memorandum of understanding for the protection of the newly added or newly discovered plant species. The fees shall be deposited in the Endangered and Rare Fish, Wildlife, and Plant Species Conservation and Enhancement Account in the Fish and Game Preservation Fund and, notwithstanding Section 13340 of the Government Code, are continuously appropriated to the department for purposes of implementing this section.

SEC. 7.

 Section 2084 of the Fish and Game Code is amended to read:

2084.
 The commission may authorize, subject to terms and conditions it prescribes, the taking of any candidate species, or the taking of any fish by hook and line for sport that is listed as an endangered, threatened, or candidate species. species provided that the take does not jeopardize the continued existence of the species.

SEC. 8.

 Section 2086 of the Fish and Game Code is amended to read:

2086.
 (a) The department, in cooperation with the Department of Food and Agriculture, county agricultural commissioners, extension agents, farmers, ranchers, and other agricultural experts, shall adopt regulations that authorize locally designed voluntary programs for routine and ongoing agricultural activities on farms or ranches that encourage habitat for candidate, threatened, and endangered species, and wildlife generally. Agricultural County agricultural commissioners, extension agents, farmers, ranchers, or other agricultural experts, in cooperation with conservation groups, may propose those programs to the department. The department shall propose regulations for those programs not later than July 1, 1998. The regulations shall not authorize the take of candidate, threatened, and endangered species that jeopardizes the continued existence of the species.
(b) Programs authorized under subdivision (a) shall do all of the following:
(1) Include management practices that will, to the maximum extent practicable, avoid and minimize take of candidate, endangered, and threatened species, while encouraging the enhancement of habitat.
(2) Be supported by the best available scientific information for both agricultural and conservation practices.
(3) Be consistent with the policies and goals of this chapter.
(4) Be designed to provide sufficient flexibility to maximize participation and to gain the maximum wildlife benefits without compromising the economics of agricultural operations.
(5) Include terms and conditions to allow farmers or ranchers to cease participation in a program without penalty. The terms and conditions shall include reasonable measures to minimize take during withdrawal from the program.
(c) Any taking of candidate, threatened, or endangered species incidental to routine and ongoing agricultural activities that occurs while the management practices specified by paragraph (1) of subdivision (b) are followed, is not prohibited by this chapter.
(d) (1) The department shall automatically renew the authorization for these voluntary programs every five years, unless the Legislature amends or repeals this section in which case the program shall be revised to conform to this section.
(2)  Commencing in 2000, and every five years thereafter, the department shall post a report regarding the effect of the programs on its Internet Web site. The department shall consult with the Department of Food and Agriculture in evaluating the programs and preparing the report. The report shall address factors such as the temporary and permanent acreage benefiting from the programs, include an estimate of the amount of land upon which routine and ongoing agricultural activities are conducted, provide examples of farmer and rancher cooperation, and include recommendations to improve the voluntary participation by farmers and ranchers.
(e) If the authorization for these programs is not renewed or is modified under subdivision (d), persons participating in the program shall be allowed to cease participating in the program in accordance with the terms and conditions specified in paragraph (5) of subdivision (b), without penalty.
(f) (1) The department may approve an application submitted by an agricultural-based nonprofit organization or other entity registered as a California nonprofit organization to initiate and undertake public education and outreach activities that promote the achievement of the objectives of this chapter. An application submitted pursuant to this subdivision shall include the following:
(A) The name and contact information of the participating organization.
(B) A brief description of the planned outreach activities.
(C) An end date for the outreach activities.
(2) The department may require a participating organization to submit, for approval by the department, educational materials and outreach materials that are disseminated to the public in furtherance of this subdivision.
(3) A participating organization shall file an annual report with the department before the end of each calendar year during the time period specified in the application. The report shall include, but is not limited to, the following:
(A) Complete information on the activities conducted by the participating organization in the prior year, including a description of all means of communicating to the public and agricultural community, including personal visits, electronic communications, organized meetings, or other means.
(B) A compilation of responses from the public and members of the agricultural community that will assist the participating organization and the department to modify or improve public education and outreach activities on an ongoing basis.
(C) An assessment of the existing knowledge within the agricultural community of programs and prohibitions under this chapter and a review of outreach activities that could be used to adapt and improve future outreach efforts.
(D) Information on a farm or ranch that has expressed interest in participating in a voluntary program pursuant to this section or the safe harbor agreement program contained in Article 3.7 (commencing with Section 2089.2). This provision does not require the annual report to include the identification to the department of an individual, farm, or ranch.

SEC. 9.

 Section 2089.5 is added to the Fish and Game Code, to read:

2089.5.
 (a) The department shall prioritize the review of, and decision to approve, an agreement if the property proposed to be enrolled in the agreement is encumbered by a conservation easement that will result in a permanent commitment to protect, restore, and maintain habitat conditions of greater value to one or more of the species proposed for inclusion in the agreement.
(b) If the property proposed to be enrolled in an agreement is subject to a conservation easement, the department, to the maximum extent practicable, shall rely on the measures in the conservation easement to fulfill the requirements of Section 2089.6.

SEC. 10.

 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.