BILL NUMBER: SB 482 CHAPTERED 09/17/02 CHAPTER 617 FILED WITH SECRETARY OF STATE SEPTEMBER 17, 2002 APPROVED BY GOVERNOR SEPTEMBER 16, 2002 PASSED THE SENATE AUGUST 30, 2002 PASSED THE ASSEMBLY AUGUST 28, 2002 AMENDED IN ASSEMBLY AUGUST 28, 2002 AMENDED IN ASSEMBLY AUGUST 26, 2002 AMENDED IN ASSEMBLY JULY 3, 2002 AMENDED IN ASSEMBLY JUNE 19, 2002 AMENDED IN ASSEMBLY MAY 29, 2002 AMENDED IN ASSEMBLY APRIL 30, 2002 AMENDED IN ASSEMBLY APRIL 15, 2002 AMENDED IN ASSEMBLY MARCH 7, 2002 AMENDED IN SENATE APRIL 30, 2001 AMENDED IN SENATE APRIL 5, 2001 INTRODUCED BY Senator Kuehl FEBRUARY 22, 2001 An act to amend Sections 3511, 4700, 5050, and 5515 of, and to add Section 2081.7 to, the Fish and Game Code, and to amend Sections 1013 and 22762 of the Water Code, relating to the Salton Sea, and making an appropriation therefor. LEGISLATIVE COUNSEL'S DIGEST SB 482, Kuehl. Salton Sea. (1) Existing law provides that the Imperial Irrigation District is not liable for any effects to the Salton Sea or its bordering area resulting from specified conservation measures. This bill would make legislative findings concerning the Salton Sea and a Quantification Settlement Agreement. The bill would require the Resources Agency and the Technology, Trade, and Commerce Agency, in consultation with specified entities and individuals, to review and report to the Governor and the Legislature, on or before June 30, 2003, on certain matters pertaining to the implementation of the Quantification Settlement Agreement. The bill would authorize the Department of Fish and Game, contingent upon the execution of the Quantification Settlement Agreement among other things, to authorize the take of species resulting from specified environmental impacts attributable to the implementation of the agreement. The bill would make related conforming changes. The bill would provide that, during the period that the Quantification Settlement Agreement is in effect and the Imperial Irrigation District is meeting its water delivery obligations under the Quantification Settlement Agreement, if the Imperial Irrigation District utilizes land following conservation measures that ensure compliance with specified criteria set forth in the bill for the environmental impacts of a water transfer to implement the Quantification Settlement Agreement, no person or local agency, as defined, may seek to obtain additional conserved Colorado River water from the district, voluntarily or involuntarily, until the district has adopted a resolution offering to make conserved Colorado River water available. The bill also would require the Secretary of the Resources Agency to establish an advisory committee representing the parties interested in the future of the Salton Sea. (2) Existing law establishes the Fish and Game Preservation Fund, a fund that is continuously appropriated to the department to carry out the Fish and Game Code. By imposing new duties on the department, this bill would make an appropriation. Appropriation: yes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. (a) "Quantification Settlement Agreement" means the agreement, the provisions of which are substantially described in the draft Quantification Settlement Agreement (QSA), dated December 12, 2000, and submitted for public review by the Quantification Settlement Agreement parties, and as it may be amended, and that shall include as a necessary component the implementation of the Agreement for Transfer of Conserved Water by and between the Imperial Irrigation District and the San Diego County Water Authority, dated April 29, 1998 (IID/SDCWA Transfer Agreement), and as it may be amended, and any QSA-related program that delivers water at the intake of the Metropolitan Water District of Southern California's Colorado River Aqueduct. (b) It is the intent of the Legislature to allocate fifty million dollars ($50,000,000) from funds available pursuant to the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002, if it is approved by the voters at the statewide general election to be held November 5, 2002 (Proposition 50), as a minimum state contribution or matching contribution for federal funds or funds obtained from other sources, to assist in the implementation of the preferred alternative or other related restoration activities, including the program referred to in paragraph (3) of subdivision (d) of Section 2081.7 of the Fish and Game Code, at the Salton Sea or the lower Colorado River, or to assist in the development of a natural community conservation plan that is consistent with the initiative and that is implemented to effectuate the QSA. (c) The Legislature finds that it is important to the state to meet its commitment to reduce its use of water from the Colorado River to 4.4 million acre-feet per year. The Legislature further finds that it is important that actions taken to reduce California's Colorado River water use are consistent with its commitment to restore the Salton Sea, which is an important resource for the state. The Legislature further finds that species previously designated as fully protected may be taken during activities intended to meet the state's commitment to reduce its use of Colorado River water as long as those activities are found to comply with existing law, including Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code. (d) California's Colorado River Water Use Plan is a framework developed to allow California to meet its Colorado River needs from within its basic annual apportionment. California will be required to reduce the amount of Colorado River water it uses by up to 800,000 acre-feet per year. (e) California's basic apportionment of Colorado River water is 4.4 million acre-feet per year, but until recently, due to the availability of surplus river water and apportioned but unused water of Nevada and Arizona, California has used up to 5.2 million acre-feet per year over the past ten years. About 700,000 acre-feet of this additional water has been used to fill the Colorado River Aqueduct, which transports water to the southern California urban coast. Nevada and Arizona are now using, or are close to using, their full apportionments, and California can no longer rely on that surplus of water. (f) The Salton Sea will eventually become too saline to support its fishery and fish-eating birds unless a restoration plan is adopted and implemented. The transfer of water from the Imperial Irrigation District to the San Diego County Water Authority and the other Quantification Settlement Agreement (QSA) parties pursuant to the QSA could result in an acceleration of the rate of salinization of the Salton Sea. (g) Restoration of the Salton Sea is in the state and national interest. Congress recognized in the Salton Sea Reclamation Act of 1998, Public Law 105-372, that appropriate federal agencies should offer alternative restoration options to Congress and the public in order to avoid further deterioration of the internationally significant habitat and wildlife values of the Salton Sea and to protect the wide array of economic and social values that exist in the immediate vicinity of the Salton Sea. The failure to issue that report in a timely fashion has unnecessarily constrained the Legislature's ability to consider fully the costs and benefits of various options to restoration that should be undertaken at the Salton Sea. SEC. 2. Section 2081.7 is added to the Fish and Game Code, to read: 2081.7. (a) Notwithstanding Sections 3511, 4700, 5050, and 5515, and contingent upon the fulfillment of the conditions listed in subdivisions (b), (c), and (d), the department may authorize, under Chapter 1.5 (commencing with Section 2050) or Chapter 10 (commencing with Section 2800), the take of species resulting from impacts attributable to the implementation of the Quantification Settlement Agreement, as defined in subdivision (a) of Section 1 of the act that added this section during the 2001-02 Regular Session, on all of the following: (1) The salinity, elevation, shoreline habitat, or water quality of the Salton Sea. (2) The quantity and quality of water flowing in the All-American Canal, the Coachella Canal, the Imperial Valley and Coachella Valley drains, the New and Alamo Rivers, the Coachella Valley Stormwater Channel, and the habitat sustained by those flows. (3) Agricultural lands in the Imperial Valley. (4) The quantity and quality of water flowing in the Colorado River, the habitat sustained by those flows, and the collection of that water for delivery to authorized users. (b) The Quantification Settlement Agreement is executed by the appropriate parties on or before December 31, 2002. (c) After consultation with the Department of Water Resources and an opportunity for public review and comment, the department determines, based on the best available science, that the implementation of the Quantification Settlement Agreement during the first 15 years that the agreement is in effect (1) will not result in a material increase in projected salinity levels at the Salton Sea, and (2) the agreement will not foreclose alternatives for reclamation of the Salton Sea as summarized in Section 101(b)(1)(A) of the Salton Sea Reclamation Act of 1998 (P.L. 105-372). (d) All of the following conditions are met: (1) The requirements of subdivision (b) and (c) of Section 2081 are satisfied as to the species for which take is authorized. (2) The take authorization provides for the development and implementation, in cooperation with federal and state agencies, of an adaptive management process for monitoring the effectiveness of, and adjusting as necessary, the measures to minimize and fully mitigate the impacts of the authorized take. The adjusted measures are subject to Section 2052.1. (3) The take authorization provides for the development and implementation in cooperation with state and federal agencies of an adaptive management process that substantially contributes to the long-term conservation of the species for which take is authorized. Preparation of the adaptive management program and implementation of the program is the responsibility of the department. The department' s obligation to prepare and implement the adaptive management program is conditioned upon the availability of funds pursuant to the Water Security, Clean Drinking Water, Coastal and Beach Protection Act of 2002, if it is approved by the voters at the statewide general election to be held November 5, 2002 (Proposition 50), or other funds that may be appropriated by the Legislature or approved by the voters for that purpose. The failure to appropriate funds does not relieve the applicant of the obligations of paragraphs (1) and (2). However, the applicant shall not be required to fund any program pursuant to this paragraph. (4) The requirements of paragraph (1) may be satisfied if the take is authorized under Chapter 10 (commencing with Section 2800). (e) (1) The Secretary of the Resources Agency shall use all available authority to enter into a memorandum of understanding (MOU) between the Secretary of the Interior, the Salton Sea Authority, and the Governor, as provided in Section 101(b)(1)(B)(i) of the Salton Sea Reclamation Act of 1998 (P.L. 105-372) for the purpose of developing, selecting, and implementing alternatives for projects that realize the objectives of Section 101(b)(1)(A) of the Salton Sea Reclamation Act of 1998 (P.L. 105-372). The memorandum of understanding shall be consistent with the authority granted to the Secretary of the Interior under the Salton Sea Reclamation Act of 1998 (P.L. 105-372). The memorandum of understanding, at a minimum, shall establish all of the following: (A) Criteria for evaluation and selection of alternatives that will allow for consideration of a range of alternatives including, but not limited to, an alternative designed to sustain avian biodiversity at the Salton Sea, but not maintain elevation for the whole sea, an alternative to maintain salinity at or below current conditions and elevation near 230 feet below mean sea level under a variety of inflow conditions, and a most cost-effective technical alternative. (B) Criteria for determining the magnitude and practicability of costs of construction, operation, and maintenance of each alternative evaluated. (C) A process, with established deadlines, for release of a report regarding the potential alternatives, the selection of a preferred alternative, including a proposed funding plan to implement the preferred alternative, to be analyzed pursuant to the National Environmental Policy Act and California Environmental Quality Act, the release of the draft environmental impact statement/environmental impact report (EIS/EIR) analyzing the alternatives, the release of the final EIR/EIS, and the issuance of a final alternatives report to Congress and the Legislature on or before January 1, 2007. (2) The Secretary of the Resources Agency shall establish an advisory committee representing the parties interested in the future of the Salton Sea. The Resources Agency shall consult with the advisory committee throughout all stages of the alternative selection process. (f) Subsequent to the issuance of the take authorization referred to in subdivision (a), the applicant shall be relieved of any condition included in the take authorization to satisfy division (c), upon fulfillment of either of the following conditions: (1) If the department finds that increases in salinity at the Salton Sea will no longer adversely affect piscivorous birds at the Salton Sea, the department may enter into an agreement with the Imperial Irrigation District that phases out the district's water or irrigation runoff to the Salton Sea. (2) The department makes a finding that a Salton Sea reclamation plan has been funded and implemented that eliminates the need for the Imperial Irrigation District to undertake measures that mitigate impacts to piscivorous birds at the Salton Sea. (g) This section shall not be construed to exempt from any other provision of law the Quantification Settlement Agreement and the Agreement for Transfer of Conserved Water by and between the Imperial Irrigation District and the San Diego County Water Authority, dated April 29, 1998. SEC. 3. Section 3511 of the Fish and Game Code is amended to read: 3511. (a) Except as provided in Section 2081.7, fully protected birds or parts thereof may not be taken or possessed at any time and no provision of this code or any other law shall be construed to authorize the issuance of permits or licenses to take any fully protected bird and no such permits or licenses heretofore issued shall have any force or effect for any such purpose; except that the commission may authorize the collecting of such species for necessary scientific research and may authorize the live capture and relocation of such species pursuant to a permit for the protection of livestock. Legally imported fully protected birds or parts thereof may be possessed under a permit issued by the department. (b) The following are fully protected birds: (1) American peregrine falcon (Falco peregrinus anatum). (2) Brown pelican. (3) California black rail (Laterallus jamaicensis coturniculus). (4) California clapper rail (Rallus longirostris obsoletus). (5) California condor (Gymnogyps californianus). (6) California least tern (Sterna albifrons browni). (7) Golden eagle. (8) Greater sandhill crane (Grus canadensis tabida). (9) Light-footed clapper rail (Rallus longirostris levipes). (10) Southern bald eagle (Haliaeetus leucocephalus leucocephalus). (11) Trumpeter swan (Cygnus buccinator). (12) White-tailed kite (Elanus leucurus). (13) Yuma clapper rail (Rallus longirostris yumanensis). SEC. 4. Section 4700 of the Fish and Game Code is amended to read: 4700. (a) Except as provided in Section 2081.7, fully protected mammals or parts thereof may not be taken or possessed at any time and no provision of this code or any other law shall be construed to authorize the issuance of permits or licenses to take any fully protected mammal and no permits or licenses heretofore issued shall have any force or effect for that purpose. However, the commission may authorize the collecting of those species for necessary scientific research. Legally imported fully protected mammals or parts thereof may be possessed under a permit issued by the department. (b) The following are fully protected mammals: (1) Morro Bay kangaroo rat (Dipodomys heermanni morroensis). (2) Bighorn sheep (Ovis canadensis), except Nelson bighorn sheep (subspecies Ovis canadensis nelsoni) as provided by subdivision (b) of Section 4902. (3) Northern elephant seal (Mirounga angustirostris). (4) Guadalupe fur seal (Arctocephalus townsendi). (5) Ring-tailed cat (genus Bassariscus). (6) Pacific right whale (Eubalaena sieboldi). (7) Salt-marsh harvest mouse (Reithrodontomys raviventris). (8) Southern sea otter (Enhydra lutris nereis). (9) Wolverine (Gulo luscus). SEC. 5. Section 5050 of the Fish and Game Code is amended to read: 5050. (a) Except as provided in Section 2081.7, fully protected reptiles and amphibians or parts thereof may not be taken or possessed at any time and no provision of this code or any other law shall be construed to authorize the issuance of permits or licenses to take any fully protected reptile or amphibian and no such permits or licenses heretofore issued shall have any force or effect for any such purpose; except that the commission may authorize the collecting of such species for necessary scientific research. Legally imported fully protected reptiles or amphibians or parts thereof may be possessed under a permit issued by the department. (b) The following are fully protected reptiles and amphibians: (1) Blunt-nosed leopard lizard (Crotaphytus wislizenii silus). (2) San Francisco garter snake (Thamnophis sirtalis tetrataenia). (3) Santa Cruz long-toed salamander (Ambystoma macrodactylum croceum). (4) Limestone salamander (Hydromantes brunus). (5) Black toad (Bufo boreas exsul). SEC. 6. Section 5515 of the Fish and Game Code is amended to read: 5515. (a) Except as provided in Section 2081.7, fully protected fish or parts thereof may not be taken or possessed at any time and no provision of this code or any other law shall be construed to authorize the issuance of permits or licenses to take any fully protected fish and no such permits or licenses heretofore issued shall have any force or effect for any such purpose; except that the commission may authorize the collecting of such species for necessary scientific research. Legally imported fully protected fish or parts thereof may be possessed under a permit issued by the department. (b) The following are fully protected fish: (1) Colorado River squawfish (Ptychocheilus lucius). (2) Thicktail chub (Gila crassicauda). (3) Mohave chub (Gila mohavensis). (4) Lost River sucker (Catostomus luxatus). (5) Modoc sucker (Catostomus microps). (6) Shortnose sucker (Chasmistes brevirostris). (7) Humpback sucker (Xyrauchen texanus). (8) Owens River pupfish (Cyprinoden radiosus). (9) Unarmored threespine stickleback (Gasterosteus aculeatus williamsoni). (10) Rough sculpin (Cottus asperrimus). SEC. 7. Section 1013 of the Water Code is amended to read: 1013. (a) The Imperial Irrigation District, acting under a contract with the United States for diversion and use of Colorado River water or pursuant to the Constitution or to this chapter, or complying with an order of the Secretary of the Interior, a court, or the board, to reduce through conservation measures, the volume of the flow of water directly or indirectly into the Salton Sea, shall not be held liable for any effects to the Salton Sea or its bordering area resulting from the conservation measures. (b) For the purposes of this section, and during the term of the Quantification Settlement Agreement as defined in subdivision (a) of Section 1 of the act amending this section during the 2001-2002 Regular Session, "land fallowing conservation measures" means the generation of water to be made available for transfer or for environmental mitigation purposes by fallowing land or removing land from agricultural production regardless of whether the fallowing or removal from agricultural production is temporary or long term, and regardless of whether it occurs in the course of normal and customary agricultural production, if both of the following apply: (1) The measure is part of a land fallowing conservation plan that includes mitigation provisions adopted by the Board of Directors of the Imperial Irrigation District. (2) Before the Imperial Irrigation District adopts a land fallowing conservation plan, the district shall consult with the Board of Supervisors of the County of Imperial and obtain the board's assessment of whether the proposed land fallowing conservation plan includes adequate measures to avoid or mitigate unreasonable economic or environmental impacts in the County of Imperial. (c) In order to minimize impacts on the environment, during the term of the Quantification Settlement Agreement and for six years thereafter, in any evaluation or assessment of the Imperial Irrigation District's use of water, it shall be conclusively presumed that any water conserved, or used for mitigation purposes, through land fallowing conservation measures has been conserved in the same volume as if conserved by efficiency improvements, such as by reducing canal seepage, canal spills, or surface or subsurface runoff from irrigation fields. (d) If a party to the Quantification Settlement Agreement engages in water efficiency conservation measures or land fallowing conservation measures to carry out a Quantification Settlement Agreement transfer or to mitigate the environmental impacts of a Quantification Settlement Agreement transfer, there may be no forfeiture, diminution, or impairment of the right of that party to use of the water conserved. (e) During the period that the Quantification Settlement Agreement is in effect and the Imperial Irrigation District is meeting its water delivery obligations under the Quantification Settlement Agreement, if the Imperial Irrigation District utilizes land fallowing conservation measures that ensure compliance with the criteria of subdivision (c) of Section 2081.7 of the Fish and Game Code for the environmental impacts of a water transfer to implement the Quantification Settlement Agreement, no person or local agency, as defined in Section 21062 of the Public Resources Code, may seek to obtain additional conserved Colorado River water from the district, voluntarily or involuntarily, until the district has adopted a resolution offering to make conserved Colorado River water available. (f) Subdivisions (c), (d), and (e) shall not become operative unless the parties have executed the Quantification Settlement Agreement on or before December 31, 2002. (g) This section may not be construed to exempt the Imperial Irrigation District from any requirement established under the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code). SEC. 8. Section 22762 is added to the Water Code, to read: 22762. An action to determine the validity of the Quantification Settlement Agreement defined in subdivision (a) of Section 1 of the act that added this section during the 2001-02 Regular Session, or any action regarding a contract entered into that implements, or is referenced in, that Quantification Settlement Agreement, may be brought pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure. SEC. 9. (a) The Resources Agency and the Technology, Trade, and Commerce Agency, in consultation with the Imperial Irrigation District, Imperial County, and any other entities, organizations, and individuals deemed appropriate by the secretaries of those two agencies, shall review and report to the Governor and the Legislature, on or before June 30, 2003, on all of the following: (1) The expected nature and extent of any economic impacts related to the use of land fallowing in the Imperial Valley in connection with the Quantification Settlement Agreement, as defined in subdivision (a) of Section 1. (2) Measures taken by the Imperial Irrigation District in formulating a fallowing program to minimize as far as practicable those economic impacts. (3) Whether and to what extent funds provided to the Imperial Irrigation District for transferred water under the Quantification Settlement Agreement, together with any other funds that have been made available for these purposes would mitigate those economic impacts. (4) The amount of any additional funds required to mitigate the economic impacts. (b) If the report required under this section indicates that additional funds are required, the report shall include recommendations to the Governor and the Legislature on all of the following: (1) Proposed means for providing those additional funds, including, but not limited to, funding by the state. (2) Formulation of a program to administer those funds in the most effective manner. The program shall be developed in consultation with the Departments of Finance, Food and Agriculture, and Water Resources, with the Imperial Irrigation District, and with any other entities deemed appropriate by the secretaries of the two agencies.