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

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Date Published: 07/04/2017 04:00 AM
SB473:v96#DOCUMENT

Amended  IN  Assembly  July 03, 2017
Amended  IN  Senate  May 26, 2017
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 Sections 2061, 2053, 2070, 2072.3, 2073.4, 2074.4, 2075.5, 2077, 2080, 2084, 2080.1, 2081, 2081.2, and 2086 2084 of, to amend and renumber Section 2087 of, to add Sections 2081.3 2079.1 and 2089.5 to, and to repeal Section 2081.5 Sections 2069, 2081.5, and 2086 of, the Fish and Game Code, relating to fish and wildlife.


LEGISLATIVE COUNSEL'S DIGEST


SB 473, as amended, Hertzberg. 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. The act requires the department to adopt regulations for issuance of incidental take permits.
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.

The bill would require the department to adopt regulations for reporting on, and accounting for, all take authorized by incidental take permits and for providing public notice of permit applications and issued permits.
The bill would provide for issuance of an expedited incidental take permit in emergency circumstances, as specified.
(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 also an endangered species, threatened species, or candidate species under the California 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, unless the director determines that the incidental take statement or incidental take permit is not consistent with the California act.
This bill would include, with this notice requirement, a requirement that the person pay a permit application fee.
(3) The California Endangered Species Act requires payment of a permit application fee for the processing of a permit application for the take of a species listed under the act, with certain exemptions. Under the act, the amount of the fee is based, in part, on the project cost, with “project cost” defined to include, among other expenses, permit and license expenses.
This bill would clarify that a permit application fee is required for amendment requests, consistency determination requests, and concurrence determination requests, as specified. The bill would modify the definition of “project cost” to specifically exclude permit and license expenses and mitigation costs.

(2)

(4) 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.

(3)

(5) 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.
This bill would limit this take exemption by authorizing take under the exemption only if the take does not jeopardize the continued existence of the species.

The act

(6) The California Endangered Species 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 prescribed management practices under those programs are followed.
The act authorizes the department to design and implement actions that can be used to fully mitigate impacts resulting from certain solar thermal and photovoltaic powerplants in the planning area of the Desert Renewable Energy Conservation Plan, as defined.
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. repeal those provisions.

(4)

(7) 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 requires 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. conditions, as specified. The bill would also require the department, if the property proposed to be enrolled in an agreement is subject to a conservation easement, and, to the maximum extent practicable, to rely on the measures in the conservation easement to fulfill the requirements of issuing an agreement to the maximum extent practicable. for determining an application complete.

(5)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.

(6)

(8) 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. The act requires a petition to include scientific information about the factors affecting the ability of a species population to survive and reproduce. If a petition is accepted for consideration, the act requires the department to notify, among other persons, landowners who may be affected by the petitioned action. The act requires the commission to solicit data and comments on the petitioned action from as many persons as is practicable. The act requires the department to notify the petitioner of information submitted to the department that relates to the petitioned species within 10 days of submission. 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 a finding that a petitioned action is warranted or unwarranted to be based solely on the best available scientific information. information received by the commission. The bill would require information about the effects of climate change to be included in a petition among the factors affecting the ability of a species population to survive and reproduce. The bill would delete the requirement that the commission solicit data and comments from as many persons as is practicable. The bill would also delete the landowner notification requirement. The bill would require the department to notify a petitioner of information submitted to the department that relates to the petitioned species within 30 days of submission instead of 10 days.
(9) The Administrative Procedure Act generally governs the procedure for the adoption, amendment, or repeal of regulations by state agencies and for the review of those regulatory actions by the Office of Administrative Law.
The California Endangered Species Act requires the Fish and Game Commission, upon a finding by the commission that a petitioned action to add or remove a species from a list of endangered species or a list of threatened species is warranted, to publish a notice of that finding and a notice of proposed rulemaking under the Administrative Procedure Act, and requires further proceedings of the commission on the petitioned action to be made in accordance with that act.
This bill would permit the commission to add or remove an endangered species from a list of endangered or threatened species upon a finding that a petitioned action is warranted, or upon a finding that the petitioned action is unwarranted, but that listing the species at a different status than that requested by the petitioner is warranted, without further proceedings under the Administrative Procedure Act. The bill would require the commission to follow certain procedures for notice and publication of the change in status.
(10) The California Endangered Species Act requires the Department of Fish and Wildlife to review species listed as an endangered species or as a threatened species every 5 years to determine if the conditions that led to the original listing are still present.
This bill would require the department to review listed species every 5 years only upon a specific appropriation, and would authorize the department to review listed species every 5 years, in the absence of a specific appropriation, if other funding is available.
(11) Under existing law, the Department of Fish and Wildlife has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable populations of those species.
This bill would authorize the department, under the California Endangered Species Act, to develop and implement a recovery plan for the conservation and survival of any species listed as an endangered species or a threatened species, as provided. The bill would require the department to give priority to those species that are most likely to benefit from a recovery plan, particularly those species populations that are, or may be, significantly affected by anticipated land use changes, climate change, or changes in aquatic conditions. The bill would require recovery plans to include specified information, and would authorize the department, under specified circumstances, to adopt an existing federal recovery plan for a species that is also listed as an endangered species or a threatened species pursuant to the federal Endangered Species Act of 1973.

(7)

(12) 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.

(8)

(13) 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 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 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 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.

SECTION 1.

 Section 2053 of the Fish and Game Code is amended to read:

2053.
 (a) The Legislature further finds and declares that it is the policy of the state that state public agencies should not approve projects as proposed which would jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat essential to the continued existence of those species, if there are reasonable and prudent alternatives available consistent with conserving the species or its habitat which would prevent jeopardy.

Furthermore,

(b) Furthermore, it is the policy of this state and the intent of the Legislature that reasonable and prudent alternatives shall be developed by the department, together with the project proponent and the state lead agency, consistent with conserving the species, while at the same time maintaining the project purpose to the greatest extent possible.

SEC. 2.

 Section 2069 of the Fish and Game Code is repealed.
2069.

(a)For purposes of this section, the following terms have the following meanings:

(1)“Desert Renewable Energy Conservation Plan” means the completed conservation plan in the Mojave and Colorado Desert regions adopted pursuant to the Natural Community Conservation Planning Act (Chapter 10 (commencing with Section 2800)), and covers the geographical area described in the Draft Planning Agreement, as amended by, and among, the department, Energy Commission, United States Bureau of Land Management, and United States Fish and Wildlife Service for the Desert Renewable Energy Conservation Plan.

(2)“Energy Commission” means the State Energy Resources Conservation and Development Commission.

(b)The department, in consultation with the Energy Commission and, to the extent practicable, the United States Fish and Wildlife Service and the United States Bureau of Land Management, may design and implement actions, including the purchase of land and conservation easements, to protect, restore, or enhance the habitat of plants and wildlife that can be used to fully mitigate the impacts of the take of endangered species, threatened species, or candidate species, for purposes of paragraph (2) of subdivision (b) of Section 2081 and Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code, resulting from solar thermal, photovoltaic, wind, and geothermal powerplants in the Desert Renewable Energy Conservation Plan planning area that meet either of the following requirements:

(1)Either the Energy Commission determines that the application for certification is complete by December 31, 2011, or the lead agency for purposes of the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code) has determined the project permit application is complete or has issued a notice of preparation of an environmental impact report by December 31, 2011.

(2)The developer or owner of the proposed powerplant or generation facility has applied for, and would qualify for, funding under the federal American Recovery and Reinvestment Act of 2009 (Public Law 111-5). For purposes of this paragraph, “funding” means a loan guarantee made pursuant to Section 406 of the act (42 U.S.C. Sec. 16516) or a grant for specified energy property in lieu of a tax credit provided pursuant to Section 1603 of Division B of the act, which division is titled the American Recovery and Reinvestment Tax Act of 2009.

(c)A mitigation action may only be used for the mitigation purposes described in subdivision (b) if it meets one of the following conditions:

(1)The department has implemented the mitigation action and determined that the action has resulted in the protection, restoration, or enhancement of the habitat of one or more species that are proposed to be covered by the Desert Renewable Energy Conservation Plan, and that are located in the planning area, and, based upon that determination, can be used, for purposes of paragraph (2) of subdivision (b) of Section 2081, to fully mitigate for the impacts of the take of those species from one or more projects that meet the requirement of subdivision (b).

(2)The mitigation action is included in an interim mitigation strategy for projects that meet the requirement of subdivision (b). An interim mitigation strategy pursuant to this paragraph shall be developed by the department, in consultation with the Energy Commission and, to the extent practicable, the United States Fish and Wildlife Service and the United States Bureau of Land Management, and shall include all of the following:

(A)A description of specific mitigation areas and specific actions on public or private land within the Desert Renewable Energy Conservation Plan planning area that are to be implemented, including a focus on habitat preservation, while also including enhancement or restoration actions that will do all of the following:

(i)Contribute to the conservation of each candidate species, threatened species, or endangered species for which a permit is issued.

(ii)Adopt a regional planning perspective that provides a foundation for, or that will complement, any conservation strategy to be developed for the Desert Renewable Energy Conservation Plan.

(iii)Implement mitigation actions within a reasonable period of time relative to the impact to the affected candidate species, threatened species, or endangered species, including, where feasible, advance mitigation. For purposes of this clause, “advance mitigation” means mitigation implemented before, and in anticipation of, future impacts to natural resources.

(iv)Include a description of the species that would be benefited by each mitigation action and how it would be benefited.

(B)A cost estimate for each action, whether on public or private land, using total cost accounting, including, as applicable, land acquisition costs, conservation easement costs, monitoring costs, transaction costs, restoration costs, the amount of a perpetual endowment account for land management or easement stewardship costs by the department or other management entity, and administrative costs.

(d)The interim mitigation strategy shall be based on best available science and shall be reviewed by the Desert Renewable Energy Conservation Plan independent science advisers. The department shall seek and consider comments from the Desert Renewable Energy Conservation Plan independent science advisers in the design and location of each mitigation action implemented pursuant to this section. If the department elects to not incorporate comments of the independent science advisers into mitigation actions, the department shall explain the reasons for that decision in writing.

(e)The interim mitigation strategy shall be completed by the department no later than 60 days following the operative date of the act adding this section.

(f)(1)This section does not modify the requirements of Section 2081, including the requirement to avoid and minimize impacts, where feasible, or the requirements of Division 13 (commencing with Section 21000) of, or Chapter 6 (commencing with Section 25500) of Division 15 of, the Public Resources Code, or affect the existing authority of the department to authorize mitigation actions to comply with this chapter.

(2)With respect to the Energy Commission, in the case of an applicant seeking certification for a solar thermal or geothermal powerplant pursuant to Chapter 6 (commencing with Section 25500) of Division 15 of the Public Resources Code, or a lead agency, as defined in Section 21067 of the Public Resources Code, in the case of an applicant seeking approval of a renewable energy powerplant not subject to the Energy Commission’s jurisdiction, the sole effect of a mitigation action described in subdivision (c), and paid for through the deposit of fees as described in Section 2099, is to relieve an applicant of the obligation to directly take actions that are taken instead by the department or its contractor or designee pursuant to subdivision (b) to meet the applicant’s obligations with respect to mitigating the powerplant’s impacts to species and habitat. The mitigation action and deposit of fees shall not relieve the applicant of any other obligation, or the Energy Commission or the lead agency of any of its existing requirements of Division 13 (commencing with Section 21000) of, or the requirements of Chapter 6 (commencing with Section 25500) of Division 15 of, the Public Resources Code to analyze, avoid, minimize, or mitigate impacts to species and habitat, or make the findings required by those statutes.

(g)The mitigation actions implemented pursuant to this section shall be incorporated into the Desert Renewable Energy Conservation Plan upon the finalization of the plan, to the extent the mitigation actions are consistent with the plan’s conservation strategy.

SEC. 3.

 Section 2070 of the Fish and Game Code is amended to read:

2070.
 The commission shall establish a list of endangered species and a list of threatened species. The commission shall add or remove species from either list if it finds, upon the receipt of sufficient scientific information pursuant to this article, and based solely upon that scientific information, that the action is warranted.

SEC. 4.

 Section 2072.3 of the Fish and Game Code is amended to read:

2072.3.
 To be accepted, a petition shall, at a minimum, include sufficient scientific information that a petitioned action may be warranted. Petitions shall include information regarding the population trend, range, distribution, abundance, and life history of a species, the factors factors, including, but not limited to, the effects of climate change, affecting the ability of the population to survive and reproduce, the degree and immediacy of the threat, the impact of existing management efforts, suggestions for future management, and the availability and sources of information. The petition shall also include information regarding the kind of habitat necessary for species survival, a detailed distribution map, and any other factors that the petitioner deems relevant.

SEC. 5.

 Section 2073.4 of the Fish and Game Code is amended to read:

2073.4.
 (a) A person may submit information to the department relating to the petitioned species during the evaluation of the petition pursuant to Section 2073.5. The information shall relate to the matters identified in Section 2072.3.
(b) Within 10 30 days after receiving information pursuant to subdivision (a), the department shall notify the petitioner regarding its content.

SEC. 6.

 Section 2074.4 of the Fish and Game Code is amended to read:

2074.4.
 If a petition is accepted by the commission for consideration, all reasonable attempts shall be made to notify affected and interested parties and to solicit data and comments on the petitioned action from as many persons as is practicable. action. In addition to commission efforts to provide notification through distribution of the commission agenda and minutes pursuant to Section 2078, the department shall immediately undertake efforts to notify affected and interested parties. Methods of notification may include, but are not limited to, correspondence, newspaper notices, and press releases, and notification shall include notice to owners of that land which may provide habitat essential to the continued existence of the species, unless the director determines that ownership is so widespread, fragmented, or complex as to make individual notice impractical. releases.

SEC. 2.SEC. 7.

 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, person, 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 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 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 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, or the petitioned action is not warranted but listing the petitioned species at a different status than that requested by the petitioner is warranted, in which case the commission shall shall, within 30 days, publish a notice of that finding and a notice of proposed rulemaking pursuant to Section 11346.4 of the Government Code, to and shall 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. Code does not apply to the change in status of a species pursuant to this article. The commission shall submit the change in status to the Office of Administrative Law for filing with the Secretary of State and publication in the California Code of Regulations. The commission shall use underline or italics to indicate additions to, and strikeout to indicate deletions from, the California Code of Regulations to reflect the change in status.

SEC. 8.

 Section 2077 of the Fish and Game Code is amended to read:

2077.
 (a) The Upon a specific appropriation of funds by the Legislature, the department shall shall, or if other funding is available, in the absence of a specific appropriation, may, review species listed as an endangered species or as a threatened species every five years to determine if the conditions that led to the original listing are still present. The review shall be conducted based on information which that is consistent with the information specified in Section 2072.3 and which that is the best scientific information available to the department. The review shall include a review of the identification of the habitat that may be essential to the continued existence of the species and the department’s recommendations for management activities and other recommendations for recovery of the species. The department shall notify any person who has notified the commission, in writing with their address, of their interest, and the department may notify any other person.
(b) Review of species that are listed by both the commission and the United States Department of Interior will shall be conducted in conjunction with the five-year review process of the United States Department of Interior.
(c) Initial review of those species listed by the commission before January 1, 1982, that are not listed by the federal government shall be undertaken and completed by July 1, 1987. Initial review of those species listed by the commission after January 1, 1982, that are not listed by the federal government shall be undertaken and completed within five years of the date the species was originally listed by the commission.
(d) Notwithstanding any other provision of this section, the commission or the department may review a species at any time based upon a petition or upon other data available to the department and the commission.
(e) The department shall report in writing to the commission the results of its five-year review for each listed species. The commission shall treat any report of the department under this subdivision which that contains a recommendation to add a species to, or remove a species from, the list of endangered species or the list of threatened species as a department recommendation submitted pursuant to Section 2072.7.

SEC. 9.

 Section 2079.1 is added to the Fish and Game Code, to read:

2079.1.
 (a) Upon a specific appropriation of funds by the Legislature, or if funding is otherwise available, the department may develop and implement recovery plans for the conservation and survival of species listed as an endangered species or as a threatened species, unless the department finds that the recovery plan will not promote the conservation of the species.
(b) The department, in developing and implementing recovery plans, shall, to the maximum extent practicable, give priority to those endangered or threatened species, without regard to taxonomic classification, that are most likely to benefit from a recovery plan, particularly those species populations that are, or may be, significantly affected by anticipated land use changes, climate change, or changes in aquatic conditions.
(c) Each recovery plan shall be based on the best available scientific information and shall, at a minimum, include all of the following:
(1) A description of site-specific management actions necessary to achieve the recovery plan’s goal for the conservation and survival of the species.
(2) Objective, measurable criteria that, when achieved, would result in a determination, in accordance with the provisions of this section, that the species be removed from the list of endangered species or the list of threatened species, as applicable.
(3) Estimates of the time required and the cost to carry out those measures needed to achieve the goal of the recovery plan and to achieve intermediate steps toward that goal.
(d) The department, in developing and implementing a recovery plan, may consider data and appropriate information from public and private agencies and institutions, and other qualified persons.
(e) The department may, in its discretion, adopt, or may adopt with revisions, an existing federal recovery plan for a species described in subdivision (a) that is also listed as an endangered species or a threatened species pursuant to Section 4 of the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1533) if the department finds that the recovery plan is consistent with the provisions of this section.
(f) The department may adopt guidelines and criteria to aid in the implementation of this section. 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 section. These guidelines and criteria shall be posted on the department’s Internet Web site.

SEC. 3.SEC. 10.

 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).

SEC. 4.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 as 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. 11.

 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 7 of the federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1536) or an incidental take permit pursuant to Section 1539 of Title 16 of the United States Code 10 of that federal act (16 U.S.C. Sec. 1539) 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 4 of that federal act (16 U.S.C. Sec. 1533) 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 incidental take permit, if that person does both all of the following:
(1) Notifies the director in writing that the person has received an incidental take statement or an incidental take permit issued pursuant to the federal Endangered Species Act of 1973 (16 U.S.C.A. U.S.C. Sec. 1531 et seq.).
(2) Includes in the notice to the director a copy of the incidental take statement or incidental take permit.
(3) Includes with the notice payment of the permit application fee required pursuant to Section 2081.2.
(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 an incidental take permit has been issued pursuant to the federal Endangered Species Act of 1973, 1973 (16 U.S.C. Sec. 1531 et seq.), the director shall determine whether the incidental take statement or incidental take permit is consistent with this chapter. If the director determines within that 30-day period, based upon substantial evidence, that the incidental take statement or incidental take permit 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 Section 1536 7 or Section 1539 10 of Title 16 of the United States Code the federal Endangered Species Act of 1973 (16 U.S.C. Secs. 1536 and 1539) that alters the requirements for issuing an incidental take statement or an incidental take permit, as applicable.

SEC. 12.

 Section 2081 of the Fish and Game Code is amended to read:

2081.
 The department may authorize acts that are otherwise prohibited pursuant to Section 2080, as follows:
(a) Through permits or memorandums of understanding, the department may authorize individuals, public agencies, universities, zoological gardens, and scientific or educational institutions, to import, export, take, or possess any endangered species, threatened species, or candidate species for scientific, educational, or management purposes.
(b) The department may authorize, by permit, the take of endangered species, threatened species, and candidate species if all of the following conditions are met:
(1) The take is incidental to an otherwise lawful activity.
(2) The impacts of the authorized take shall be minimized and fully mitigated. The measures required to meet this obligation shall be roughly proportional in extent to the impact of the authorized taking on the species. Where various measures are available to meet this obligation, the measures required shall maintain the applicant’s objectives to the greatest extent possible. All required measures shall be capable of successful implementation. For purposes of this section only, impacts of taking include all impacts on the species that result from any act that would cause the proposed taking.
(3) The permit is consistent with any regulations adopted pursuant to Sections 2112 and 2114.
(4) The applicant shall ensure adequate funding to implement the measures required by paragraph (2), and for monitoring compliance with, and effectiveness of, those measures.
(c) No permit may be issued pursuant to subdivision (b) if issuance of the permit would jeopardize the continued existence of the species. The department shall make this determination based on the best scientific and other information that is reasonably available, and shall include consideration of the species’ capability to survive and reproduce, and any adverse impacts of the taking on those abilities in light of (1) known population trends; (2) known threats to the species; and (3) reasonably foreseeable impacts on the species from other related projects and activities.
(d) The department shall adopt regulations to aid in the implementation of subdivision (b) and the requirements of Division 13 (commencing with Section 21000) of the Public Resources Code, with respect to authorization of take. The regulations shall include a provision for reporting and accounting for all take authorized by permits issued under subdivision (b) and a provision for notice to the public, on the department’s Internet Web site, of all applications for permits received by the department, and, within three days of issuance, each permit issued by the department. The department may seek certification pursuant to Section 21080.5 of the Public Resources Code to implement subdivision (b).
(e) (1) If emergency circumstances require the department to issue a permit pursuant to subdivision (b) in an expedited manner, the applicant shall notify and consult with the department as soon as practicable, but not later than five days after the circumstances occur. The applicant shall submit information on the nature of the emergency, the justification for the expedited authorization, and the impact of the proposed act on endangered species, threatened species, or candidate species. The department shall evaluate that information and may issue an expedited permit, subject to the conditions in subdivision (b), which shall include the information and recommendations given during the consultation.
(2) For purposes of this subdivision, the term “emergency circumstances” means circumstances that, in order to prevent the occurrence of a disaster or to reduce the potential loss of human life, do not allow the ordinary procedures established pursuant to this section to be followed.

SEC. 13.

 Section 2081.2 of the Fish and Game Code is amended to read:

2081.2.
 (a) For the purposes of this section, the following terms have the following meanings:
(1) “Permit” means any authorization issued by the department pursuant to this article to take a species listed by this chapter as candidate, threatened, or endangered. The term includes a consistency determination pursuant to Section 2080.1 and a concurrence determination pursuant to Section 2080.3 or 2080.4.
(2) “Permit application” means an application for a permit or for an amendment to a permit. The term includes a consistency determination request pursuant to Section 2080.1 and a concurrence determination request pursuant to Section 2080.3 or 2080.4.

(2)

(3) “Permittee” includes any individual, firm, association, organization, partnership, business, trust, corporation, limited liability company, district, city, county, city and county, town, federal agency, and the state who applies for or who has received a permit pursuant to this article.

(3)

(4) “Project” has the same meaning as defined in Section 21065 of the Public Resources Code.

(4)

(5) “Project cost” means the total direct and indirect project expenses that include, but are not limited to, labor, equipment, permanent materials and supplies, subcontracts, permits and licenses, overhead, and miscellaneous costs. The term shall not include permit or license expenses or mitigation costs. For purposes of this paragraph, the term “permit” includes, but is not limited to, a permit as defined in paragraph (1).

(5)

(6) “Voluntary habitat restoration project” means a project that meets both of the following requirements:
(A) The project’s primary purpose is voluntary habitat restoration and the project may have other environmental benefits, and the project is not required as mitigation due to a regulatory action.
(B) The project is not part of a regulatory settlement, a regulatory enforcement action, or a court order.
(b) (1) The department shall collect a permit application fee for processing a permit application submitted pursuant to this article at the time the permit application is submitted to the department. Notwithstanding Section 2098, upon appropriation to the department from the Endangered Species Permitting Account, the department shall use the permit application fee to pay for all or a portion of the department’s cost of processing permit applications, permit development, and compliance monitoring pursuant to this article.
(2) This subdivision does not apply to any of the following:
(A) Activities or costs associated with the review of projects, inspection and oversight of projects, and permits necessary to conduct timber operations, as defined in Section 4527 of the Public Resources Code, in accordance with Article 9.5 (commencing with Section 4629) of Chapter 8 of Part 2 of Division 4 of the Public Resources Code.
(B) Permits or memoranda of understanding authorized by subdivision (a) of Section 2081.
(C) Permits for voluntary habitat restoration projects.
(c) The department shall assess the permit application fee as follows, subject to subdivision (f):
(1) For a project, regardless of estimated project cost, that is subject only to Section 2080.1, 2080.3, or 2080.4, the department shall assess either of the following amounts:
(A) Seven thousand five hundred dollars ($7,500).
(B) Six thousand dollars ($6,000), if the project uses a department-approved conservation or mitigation bank to fulfill mitigation obligations pursuant to this article.
(2) For a project where the estimated project cost is less than one hundred thousand dollars ($100,000), the department shall assess either of the following amounts:
(A) Seven thousand five hundred dollars ($7,500).
(B) Six thousand dollars ($6,000), if the project uses a department-approved conservation or mitigation bank to fulfill mitigation obligations pursuant to this article.
(3) For a project where the estimated project cost is one hundred thousand dollars ($100,000) or more but less than five hundred thousand dollars ($500,000), the department shall assess either of the following amounts:
(A) Fifteen thousand dollars ($15,000).
(B) Twelve thousand dollars ($12,000), if the project uses a department-approved conservation or mitigation bank to fulfill mitigation obligations pursuant to this article.
(4) For a project where the estimated project cost is five hundred thousand dollars ($500,000) or more, the department shall assess either of the following amounts:
(A) Thirty thousand dollars ($30,000).
(B) Twenty-four thousand dollars ($24,000), if the project uses a department-approved conservation or mitigation bank to fulfill mitigation obligations pursuant to this article.
(5) The department shall collect a fee of seven thousand five hundred dollars ($7,500) for processing permit amendments that the department has determined are minor as defined in regulation or fifteen thousand dollars ($15,000) for processing permit amendments that the department has determined are major as defined in regulation.
(d) (1) If the permit or amendment application fee paid pursuant to subdivision (c) is determined by the department to be insufficient to complete permitting work due to the complexity of a project or the potential effects of a project, the department shall collect an additional fee of up to ten thousand dollars ($10,000) from the permittee to pay for its estimated costs. Upon its determination, the department shall notify the permittee of the reasons why an additional fee is necessary and the estimated amount of the additional fee.
(2) The additional fee collected pursuant to paragraph (1) shall not exceed an amount that, when added to the fee paid pursuant to subdivision (c), equals thirty-five thousand dollars ($35,000). The department shall collect the additional fee before a final decision on the permit application by the department.
(e) (1) For an a permit application submitted to the department pursuant to this article on or after the effective date of this section, the department shall collect the permit application fee at the time the permit application is submitted. The department shall not deem the permit application complete until it has collected the permit application fee. A permit application submitted or deemed complete prior to before the effective date of this section shall not be subject to fees established pursuant to this section.
(2) If a permit or amendment application is withdrawn within 30 days after paying the permit or amendment application fee, the department shall refund any unused portion of the fee to the permittee.
(3) If a permit or amendment application is withdrawn after 30 days of paying the permit or amendment application fee, the department shall not refund any portion of the fee to the permittee.
(f) (1) The department shall adjust the fees in this section pursuant to Section 713.
(2) The Legislature finds that all revenues generated under this section and used for the purposes for which they were imposed are not subject to Article XIII B of the California Constitution.
(3) The department, at least every five years, shall analyze permit application fees pursuant to Section 713 to ensure the appropriate fee amounts are charged.
(g) Fees paid to the department pursuant to this section shall be deposited in the Endangered Species Permitting Account, which is hereby established in the Fish and Game Preservation Fund. Notwithstanding Section 2098, funds in the account shall be available to the department, upon appropriation by the Legislature, for the purposes of administering and implementing this chapter, except that fee moneys collected pursuant to this section shall only be used for the purposes of this article.

SEC. 5.SEC. 14.

 Section 2081.5 of the Fish and Game Code is repealed.

SEC. 6.SEC. 15.

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

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

SEC. 7.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. 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. 16.

 Section 2086 of the Fish and Game Code is repealed.
2086.

(a)The department, in cooperation with the Department of Food and Agriculture, 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 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.

(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. 17.

 Section 2087 of the Fish and Game Code is amended and renumbered to read:

2087.2069.
 (a) Accidental take of candidate, threatened, or endangered species resulting from an act that occurs on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is not prohibited by this chapter.
(b) For purposes of this section, “accidental” means unintended or unforeseen.
(c) This section shall remain in effect only until January 1, 2020, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2020, deletes or extends that date.

SEC. 8.SEC. 18.

 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 requires 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. conditions, provided that the department finds that practices consistent with the conservation easement can reasonably be expected to provide a net conservation benefit to the species listed in the application.
(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. 2089.8.

SEC. 9.SEC. 19.

 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.