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AB-235 Endangered species: candidate species: petitions: takings. (2019-2020)



Current Version: 06/29/20 - Amended Senate

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AB235:v96#DOCUMENT

Amended  IN  Senate  June 29, 2020
Amended  IN  Senate  September 06, 2019
Amended  IN  Assembly  April 30, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Assembly Bill
No. 235

Introduced by Assembly Members Mayes, Bonta, and Irwin Member Mayes
(Principal coauthor: Senator Bradford)(Coauthors: Assembly Members Gipson, Gray, and Quirk)(Coauthor: Assembly Member Lackey)

January 18, 2019

An act to amend Sections 63010, 63025.1, 63042, 63049.64, and 63071 of the Government Code, and to add Article 15 (commencing with Section 925) to Chapter 4 of Part 1 of Division 1 of the Public Utilities Code, relating to electricity. An act to amend Sections 2074.2, 2074.6, and 2084 of the Fish and Game Code, relating to endangered species, and declaring the urgency thereof, to take effect immediately.


LEGISLATIVE COUNSEL'S DIGEST


AB 235, as amended, Mayes. Electrical corporations: wildfire victim recovery bonds. Endangered species: candidate species: petitions: takings.
 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 a species to, or remove a species from, either list if it finds, upon the receipt of sufficient scientific information, and based solely upon the best available scientific information, that the action is warranted. The act requires a petition for the listing or delisting of a species to include, at a minimum, sufficient scientific information that the petitioned action may be warranted, including information regarding the population trend, range, distribution, abundance, and life history of the species, the factors affecting the ability of the population to survive and reproduce, and the degree and immediacy of the threat. The act requires the commission to accept a petition for consideration if the commission finds that the petition provides sufficient information to indicate that the petitioned action may be warranted. If a petition accepted for consideration proposes to add a species to either list, the act requires the commission to publish a notice that the species is a candidate species. The act establishes procedures and timelines for the review of an accepted petition for a candidate species. Under the act, the commission may authorize the taking of any candidate species, subject to terms and conditions it prescribes and based on the best available scientific information, if the take is consistent with the act.
This bill would require the commission to accept a petition for consideration concurrent with a taking if the commission finds that the petition provides sufficient information to indicate that the petitioned action may be warranted, but the geographic proliferation of the species may lead to significant economic hardship or an impact on critical infrastructure during the above-described review of an accepted petition, and if a preponderance of the evidence presented in the petition shows there is no direct threat to the species that would lead to its decline during that period. The bill would also make conforming changes.
This bill would declare that it is to take effect immediately as an urgency statute.

The California Constitution establishes the Public Utilities Commission and authorizes the commission to exercise ratemaking and rulemaking authority over all public utilities, as defined, subject to control by the Legislature. The Public Utilities Act authorizes the commission to supervise and regulate every public utility, including electrical corporations, and to do all things that are necessary and convenient in the exercise of that power and jurisdiction. Existing law authorizes the commission to fix the rates and charges for every public utility and requires that those rates and charges be just and reasonable. The existing restructuring of the electrical services industry provides for the issuance of rate reduction bonds by the California Infrastructure and Economic Development Bank for the recovery of transition costs, as defined, by electrical corporations. Existing law authorizes an electrical corporation to file an application requesting the commission to issue a financing order to authorize the recovery of costs and expenses related to a catastrophic wildfire through the issuance of bonds by the electrical corporation that are secured by a rate component, as provided.

This bill would, under specific circumstances, authorize the commission, upon application by an electrical corporation, to issue financing orders to support the issuance of wildfire victim recovery bonds by an electrical corporation or other financing entity to finance wildfire recovery costs, as provided. The bill would authorize the California Infrastructure and Economic Development Bank to act as a financing entity for these purposes, for wildfire victim recovery bonds totaling not more than $20,000,000,000 at any one time. The bill would require the commission to enforce the provisions of a financing order against any financing entity, including a public financing entity, to the extent permitted by law, and for those purposes would authorize the commission to exercise all authority granted the commission with respect to a public utility by the California Constitution and the Public Utilities Act.

Under existing law, a violation of the Public Utilities Act or any order, decision, rule, direction, demand, or requirement of the commission is a crime.

Because certain provisions of this bill would be a part of the act and because a violation of an order or decision of the commission implementing its requirements would be a crime, the bill would impose a state-mandated local program by creating a new crime.

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: MAJORITY2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YESNO  

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


SECTION 1.

 Section 2074.2 of the Fish and Game Code is amended to read:

2074.2.
 (a) At the meeting scheduled pursuant to Section 2074, 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 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, no person shall 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 petition provides sufficient information to indicate that the petitioned action may be warranted.
(2) The commission determines that it requires further information to evaluate whether the petition provides sufficient information to indicate that the petitioned action may be 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 petition provides sufficient information to indicate that the petitioned action may be 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. If the commission reopens the record pursuant to this paragraph, it shall provide an opportunity for public comment on the submitted information prior to before the issuance of its decision.
(d) In its discretion, the commission 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 shall be no later than 90 days after the meeting scheduled pursuant to Section 2074, 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 2074 or at a continued meeting scheduled pursuant to subdivision (d), the commission shall consider the petition, the department’s written report, written comments received, and oral testimony provided during the public hearing, and the commission shall make and enter in its record one of the following findings:
(1) If the commission finds that the petition does not provide sufficient information to indicate that the petitioned action may be warranted, the commission shall publish a notice of finding that the petition is rejected, including the reasons why the petition is not sufficient.
(2) If the commission finds that the petition provides sufficient information to indicate that the petitioned action may be warranted, the commission shall publish a notice of finding that the petition is accepted for consideration. If the accepted petition recommends the addition of a species to either the list of endangered species or the list of threatened species, the commission shall include in the notice that the petitioned species is a candidate species. The commission shall maintain a list of species which are candidate species.
(3) If the commission finds that the petition provides sufficient information to indicate that the petitioned action may be warranted, but the geographical proliferation of the species may lead to significant economic hardship or an impact on critical infrastructure during the review period described in Section 2074.6, the commission shall publish a notice of finding that the petition is accepted for consideration concurrent with a taking authorized under subdivision (c) of Section 2084. If the accepted petition recommends the addition of a species to either the list of endangered species or the list of threatened species, the commission shall include in the notice that the petitioned species is a candidate species.
(f) The commission shall publish and distribute the findings relating to the petition pursuant to Section 2078.
(g) The commission shall maintain a list of species that are candidate species.

SEC. 2.

 Section 2074.6 of the Fish and Game Code is amended to read:

2074.6.
 The department shall promptly commence a review of the status of the species concerned in the petition. Within 12 months of the date of publication of a notice of acceptance of a petition for consideration pursuant to paragraph (2) or (3) of subdivision (e) of Section 2074.2, the department shall produce and make publicly available on the department’s Internet Web site internet website a final written peer reviewed report, based upon the best scientific information available to the department, which indicates whether the petitioned action is warranted, which includes a preliminary identification of the habitat that may be essential to the continued existence of the species, and which recommends management activities and other recommendations for recovery of the species. Prior to Before releasing the final written report, the department shall have a draft status review report prepared and independently peer reviewed, and upon receiving the peer reviewers’ input, shall evaluate and respond in writing to the independent peer review and shall amend the draft status review report as appropriate. The revised report shall be posted on the department’s Internet Web site internet website for a minimum of 30 days for public review prior to before the hearing scheduled pursuant to Section 2075. The commission may grant an extension of up to six months if the director determines an extension is necessary to complete independent peer review of the report, and to provide a minimum of 30 days for public review of the peer reviewed report prior to before the public hearing specified in Section 2075.

SEC. 3.

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

2084.
 (a) The commission may authorize, subject to terms and conditions it prescribes, and based on the best available scientific information, (1) the taking of any candidate species, or (2) the taking of any fish by hook and line for sport that is listed as an endangered, threatened, or candidate species, provided that in either case the take is consistent with this chapter.
(b) The department may recommend to the commission that the commission authorize, or not authorize, the taking of an endangered, threatened, or candidate species pursuant to this section.
(c) Notwithstanding any other provision of this chapter, the department may recommend and the commission may authorize, subject to a finding of significant economic hardship or an impact on critical infrastructure pursuant to paragraph (3) of subdivision (e) of Section 2074.2 and if a preponderance of evidence presented in a petition accepted pursuant to Section 2072.3 shows there is no direct threat to the species that would lead to its decline within the review period described in Section 2074.6, the taking of any candidate species for the duration of the review period.

SEC. 4.

  This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are:
In order to make the necessary statutory changes to prevent, as soon as possible, an impact on critical infrastructure projects, it is necessary that this act take effect immediately.