BILL ANALYSIS                                                                                                                                                                                                    

          |                                                                 |
          |                   Senator Fran Pavley, Chair                    |
          |                    2009-2010 Regular Session                    |
          |                                                                 |

          BILL NO: SB 1303                   HEARING DATE: April 13, 2010   

          AUTHOR: Wolk                       URGENCY: No  
          VERSION: As Introduced             CONSULTANT: Bill Craven   
          DUAL REFERRAL: No                  FISCAL: Yes  
          SUBJECT: Protected species: accidental take: agricultural  
          In 1997, the Legislature passed and the Governor signed SB 231  
          (Costa), a measure that established a new provision in the  
          California Endangered Species Act removing the prohibition  
          against the take of listed species caused by the accidental take  
          of species on farms and ranches that occurs in the course of  
          "routine and ongoing" agricultural activities. The bill had a 5  
          year sunset provision. This provision is now codified at Section  
          2087 of the code. 

          In 2002, SB 550 (Costa) extended the sunset to 2009 and made one  
          technical change to the law as it is now codified. 

          In 2008, SB 1436 (Ducheny) extended the sunset to 2011. 

          Separately, in section 2086 of the Fish and Game Code, SB 231  
          also established a new voluntary habitat management program for  
          farmers and ranchers that depends in large part on the  
          development of best management practices that are developed  
          locally and approved by the department. That section, among  
          other things, requires farmers and ranchers to avoid and  
          minimize take of listed species, to develop programs based on  
          the best available scientific information, and contains other  
          criteria as well. The voluntary habitat management program has a  
          separate provision for the incidental take of protected species  
          occurring from routine and ongoing agricultural activities.  
          However, it is only the free-standing accidental take provision  
          (the one not tied to the voluntary habitat management program)  
          that is codified in Section 2087, that has a sunset provision,  


          and would be affected by this bill

          SB 231 required DFG to develop regulations to implement its  
          provisions. Those regulations defined "routine and ongoing  
          agricultural activities" as a long list of enumerated  
          agricultural activities as well as those activities that are  
          performed "incidental to or in conjunction with" those farming  
          operations, including the preparation for market, delivery to  
          storage or to market, delivery to carriers for transportation,  
          and all activities compatible with the Williamson Act. 

          Excluded from the definition are conversions of agricultural  
          lands to nonagricultural use, timber harvesting activities, or  
          activities that intentionally reduce habitat to facilitate  
          conversion to non-agricultural uses. Also, the conversion of  
          rangeland to more intensive agricultural uses such as permanent  
          crops is not considered a routing and ongoing agricultural  

          When adopted, SB 231 was supported by those who contended that  
          unintended harm to listed species that occurs during normal  
          agricultural activities should not be subject to penalties of  
          the state endangered species act. Opponents argued that SB 231  
          created a loophole in the state endangered species act that  
          would enable some to take unfair advantage of an important law  
          of general applicability. The opposition also argued that there  
          was insufficient evidence of unfair enforcement of the state  
          endangered species act on agricultural lands. 

          PROPOSED LAW
          This bill would delete the sunset and thus make permanent the  
          accidental take provisions in section 2087 of the state  
          endangered species act. The accidental take provisions of  
          Section 2086 would remain in effect.  

          According to a coalition that includes several agricultural  
          organizations, the California Chamber of Commerce, and the  
          California State Association of Counties, SB 1303 will permit  
          farmers and ranchers to produce food and fiber "without fear of  
          penalties under the California Endangered Species Act if they  
          accidentally take a species listed as candidate, threatened, or  
          endangered." The coalition views the bill as providing an option  
          for landowners not to use "scorched earth" farming practices and  
          instead allows for habitat to develop as a part of agricultural  
          practices. The coalition contends that CESA discourages farmers  
          from creating habitat, since such habitat could potentially  


          attract listed species, and thus triggering application of the  
          state's endangered species regulations. 

          Audubon California is opposed to the version in print but will  
          remove its opposition if and when a successful discussion with  
          stakeholders is concluded that involves a phase out of the  
          accidental take provision accompanied by a phase in of a  
          negotiated alternative. It would support a one year extension of  
          the sunset for the purposes of those discussions. 

          1. As seen from the description of existing law and the  
          background of Section 2087 and its curious relationship with  
          Section 2086, the Committee may decide a more permanent and  
          coherent solution should be crafted that involves more than  
          simply removing the sunset on Section 2087. While that sunset  
          has been extended twice before, the effect is to retain two  
          accidental take provisions-one that requires a voluntary habitat  
          management program pursuant to Section 2086 and one pursuant to  
          Section 2087 that does not. 

          2. The Legislature has recently affirmed its commitment to  
          voluntary actions on private lands that will help establish  
          habitat for threatened and endangered species. Last year, SB 448  
          (Pavley) established a "safe harbor" program in the California  
          Endangered Species Act that parallels a similar federal  
          provision. In short form, SB 448 allows landowners, voluntarily,  
          to establish a baseline of the protected species that resides on  
          their property and to proceed to manage their lands, provided  
          that at the expiration of the agreement, the census of protected  
          species is no lower than the baseline. 

          3. In conversations with the author and the sponsors, a basic  
          agreement has been reached that a solution should be created  
          that is more substantive than simply deleting the sunset.  
          Existing law is not only confusing, but a literal reading of  
          Sec. 2087 provides for an unlimited number of "accidental take"  
          incidents, does not require a management plan of any sort, and  
          does not provide any outreach or educational activities that  
          would benefit farmers and ranchers in complying with the state  
          endangered species act. Additionally, Sec 2087 was passed at  
          least in part as a reaction to an unusual instance of  
          enforcement activity taken against a rancher at the federal  
          level, under federal law.  Staff is not aware of any similar  
          actions taken at the state level. Given the fiscal circumstances  
          of Department of Fish and Game wardens, one can surmise that it  


          is not likely that enforcement efforts against farmers and  
          ranchers are a major priority of the department. Staff is not  
          aware of any landowner utilizing the provisions of Sec. 2087. 

          4. Assuming the bill moves forward with the suggested amendment,  
          it is the intent to fully cooperate with the author and the  
          sponsors and other stakeholders to determine the best way to  
          resolve the future of Sec. 2087. While those conversations are  
          underway, the author has agreed to an amendment that extends  
          Section 2087 for one year. The Committee of course retains the  
          right to ask for the bill to be returned to the Committee to  
          consider the next iteration of language in the bill. 


               AMENDMENT 1  
               Page 2, lines 1-3. Delete, and add a new sunset of 1/1/12. 

          Agricultural Council of California
          Alliance of Western Milk Producers
          California Cattlemen's Association
          California Chamber of Commerce
          California Citrus Mutual
          California Cotton Ginners Association
          California Farm Bureau Federation
          California Grape and Tree Fruit League
          California Outdoor Heritage Alliance
          California State Association of Counties
          California Tomato Growers Association
          Kings River Conservation District
          Kings River Water Association 
          Nisei Farmers League
          Regional Council of Rural Counties
          Resources Landowner's Coalition
          Western Agricultural Processors Association
          Western Growers

          Audubon California - unless amended