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SB-649 California Endangered Species Act: incidental take permits. (2023-2024)



Current Version: 02/16/23 - Introduced

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SB649:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 649

Introduced by Senator Hurtado

February 16, 2023

An act to amend Section 2081 of the Fish and Game Code, relating to fish and wildlife.


LEGISLATIVE COUNSEL'S DIGEST


SB 649, as introduced, Hurtado. California Endangered Species Act: incidental take permits.
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. Existing law prohibits the department from issuing an incidental take permit if issuance of the permit would jeopardize the continued existence of the species. Existing law requires the department to make this determination based on the best scientific and other information that is reasonably available, and to 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.
This bill would require the department to make that decision based on a real-time monitoring system, rather than a calendar-based schedule, and to additionally consider the proximity of the species relative to the operation of a facility subject to the permit conditions and the known location of the population relative to the facility subject to the permit. The bill would also set forth legislative declarations and findings.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 (a) The Legislature hereby declares all of the following:
(1) The export of water from the Sacramento-San Joaquin Delta is a critical source of water for the bay area, the central valley, and southern California.
(2) California’s already variable climate is becoming increasingly volatile, with drier dry periods and wetter—but less frequent—wet periods.
(3) California’s infrastructure and regulatory system need to be modernized to adapt to our new climate reality to balance the needs of the people versus the needs of the environment. This will require strategic infrastructure investment in the way we capture, convey, and store water.
(4) Managing water is at the forefront of climate change adaptation in California. With climate change, California is experiencing more frequent and extreme droughts and flooding.
(5) To position California to successfully adapt our water supply system (the State Water Project and Central Valley Project) to cope with climate extremes and increasing hydrologic volatility effecting our major infrastructure and regulatory system which needs to be adaptive for California to continue to provide a reliable water supply while also being protective of the environment.
(6) To be adaptive, real-time monitoring is needed to determine if the protective measures currently in place to protect the species of concern are warranted or may be modified if real-time monitoring of the species of concern determines the protective measure is not warranted due to the absence of the species of concern.
(7) The decline of Delta smelt is largely due to changes in the Delta’s water quality and quantity, as well as habitat degradation.
(8) California’s water conveyance system, which consists of pumps, canals, and aqueducts, has been blamed for exacerbating the Delta smelt’s decline by altering water flows and transporting nonnative species into the Delta.
(9) The declining population of Delta smelt has caused problems for water conveyance in California, as regulatory measures to protect the species have reduced the amount of water available for human use, particularly for agriculture and urban areas.
(b) The Legislature hereby finds all of the following:
(1) Studies have shown that the Delta smelt population has decreased significantly since the 1970s, and the species is now considered to be at risk of extinction.
(2) Changes to water flows, water quality, and habitat conditions caused by the water conveyance system have been identified as major factors contributing to the decline of Delta smelt.
(3) Efforts to restore Delta smelt populations and protect the species from extinction have been ongoing, but their effectiveness has been limited by the ongoing impacts of the water conveyance system and other stressors.
(4) More than 32 trillion gallons of water fell in California over a three-week period through a series of atmospheric river storms. On average, 11 inches of rain fell across the entire state.
(5) California’s major reservoirs are below normal levels. Before the storms, 81 percent of the state was in severe drought.
(6) Ground water plays an important part in the state’s water grid accounting from 40 percent to 60 percent of the state’s water supply.
(7) California’s mountain regions have two, and in some places three, times the average snowpack that will eventually melt and fill our waterways.
(8) Calendar-based schedules may not accurately reflect the actual presence or absence of protected species since they do not provide real-time data on compliance with permit conditions.
(9) Calendar-based schedules are not flexible enough to adapt to changing environmental conditions. Real-time monitoring can provide more detailed information about the hydrological conditions that will allow for better management of water resources.

SEC. 2.

 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 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 A permit shall not 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, based on a real-time monitoring system, rather than a calendar-based schedule, and shall include consideration of the species’ capability to survive and reproduce, the proximity of the species relative to the operation of a facility subject to the permit conditions, 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) the known location of the population relative to the facility subject to the permit; and (4) 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 department may seek certification pursuant to Section 21080.5 of the Public Resources Code to implement subdivision (b).
(e) Commencing January 1, 2019, the department shall post each new permit issued pursuant to subdivision (b) on its Internet Web site internet website within 15 days of the effective date of the permit.