BILL NUMBER: SB 1349 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 13, 2010
INTRODUCED BY Senator Cogdill
FEBRUARY 19, 2010
An act to add Section 2080.3 to, and to add and repeal
Sections 2080.2 and 2080.5 of, the Fish and Game Code, relating to
endangered species. An act to add and repeal Section
2080.2 of the Fish and Game Code, relating to endang ered
species.
LEGISLATIVE COUNSEL'S DIGEST
SB 1349, as amended, Cogdill. Endangered species: experimental
populations : Chinook salmon .
The Federal Endangered Species Act of 1973 (FESA) directs federal
agencies, in consultation with the Secretary of the Interior or the
Secretary of Commerce, as appropriate, to carry out conservation
programs for endangered species listed under FESA. FESA generally
prohibits activities affecting these threatened and endangered
species unless authorized by a permit from the United States Fish and
Wildlife Service or the National Marine Fisheries Service, as
appropriate. FESA provides for enhancement of survival permits to
allow actions necessary for the establishment and maintenance of
experimental populations designated pursuant to that act.
The California Endangered Species Act (state act)
(CESA) prohibits the taking of an endangered or
threatened species, except as specified. The Department of Fish and
Game may authorize the take of listed species if the take is
incidental to an otherwise lawful activity and the impacts are
minimized and fully mitigated. Existing law provides that if any
person obtains from the Secretary of the Interior or the Secretary of
Commerce an incidental take statement or incidental take permit
pursuant to the federal Endangered Species Act (federal act)
FESA that authorizes the taking of an
endangered species or threatened species listed pursuant to
the federal act FESA and that is an endangered
species, threatened species, or candidate species pursuant to
the state act CESA , no further
authorization or approval is necessary under the state act
CESA for that person to take the endangered
species, threatened species, or candidate species identified in, and
in accordance with, the incidental take statement or incidental take
permit, if that person notifies the Director of Fish and Game, as
specified, and the director determines that the statement or permit
is consistent with the state act CESA .
This bill would establish provisions that parallel those federal
incidental take provisions for a person who obtains a federal
enhancement of survival permit. Those enhancement of survival permit
provisions would be repealed if federal law alters the requirements
for issuing an enhancement of survival permit. The bill would also
provide that the state act does not prohibit the take, or the
incidental take, of any endangered, threatened, or candidate species,
if the Secretary of the Interior or the Secretary of Commerce
designates, as prescribed, an experimental population of an
endangered or threatened species that is listed pursuant to certain
provisions of the federal act and regulations adopted thereto, and
the take, or incidental take, occurs in conformance with those
provisions.
The bill, until January 1, 2020, would authorize the department to
authorize the take of 3 experimental populations, as defined, of
endangered species, threatened species, or candidate species listed
pursuant to the state act in defined management zones.
This bill would provide that a person who obtains a federal
enhancement of survival permit that authorizes the take of spring run
Chinook salmon that has been designated as an experimental
population pursuant to FESA, would require no further authorization
or approval under CESA for that person to take that species as
identified in, and in accordance with, the enhancement of survival
permit, if that person notifies the director of the enhancement of
survival permit. The provisions of the bill would remain in effect
only until the effective date of an amendment to FESA that alters the
requirements for issuing an enhancement of survival permit.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2080.2 is added to the
Fish and Game Code , to read:
2080.2. (a) Notwithstanding any other provision of this chapter,
but subject to subdivision (c), if any person obtains from the
Secretary of the Interior or the Secretary of Commerce an enhancement
of survival permit pursuant to subparagraph (A) of paragraph (1) of
subdivision (a) of Section 1539 of Title 16 of the United States Code
that authorizes the take of spring run Chinook salmon (Oncorhynchus
tshawytscha) that has been designated as an experimental population
pursuant to subdivision (j) of that section, no further authorization
or approval is necessary under this chapter for that person to take
that species as identified in, and in accordance with, the
enhancement of survival permit, if that person notifies the director
in writing that the person has received an enhancement of survival
permit issued pursuant to the federal Endangered Species Act of 1973
(16 U.S.C. Sec. 1531 et seq.). The notice to the director shall
include a copy of the permit.
(b) Upon receipt of the notice specified in subdivision (a), the
director shall direct the publication of that notice in the General
Public Interest section of the California Regulatory Notice Register.
(c) The timing and extent of a take authorization under this
section shall be limited to the terms in the federal enhancement of
survival permit and shall expire upon the expiration of the federal
permit.
(d) This section shall remain in effect only until the effective
date of an amendment to Section 1539 of Title 16 of the United States
Code that alters the requirements for issuing an enhancement of
survival permit, as applicable, and as of that date is repealed,
unless a later enacted statute, that is chaptered before the date
this section is repealed, deletes or extends that date.
SECTION 1. Section 2080.2 is added to the Fish
and Game Code, to read:
2080.2. (a) For purposes of this section, the term "experimental
population" means any population, including any eggs, propagules,
individuals, or offspring arising solely therefrom, authorized for
release under this section that meets the following requirements:
(1) The population is for some duration wholly separate
geographically from nonexperimental populations of the same species.
If there is for some duration geographic overlap of experimental and
nonexperimental populations, experimental status shall be recognized
only outside the areas of overlap, and a specimen of an experimental
population that overlaps geographically with a natural population of
the same species will not be recognized as a member of an
experimental population while in the area of overlap.
(2) The duration of episodes of geographic separation are
reasonably predictable, including geographic separations created by
fixed migration patterns or natural or manmade barriers.
(3) The separation of populations does not occur solely as a
result of random and unpredictable events.
(b) The department may authorize the take of three experimental
populations of endangered species, threatened species, or candidate
species that are listed pursuant to this chapter in defined
management zones.
(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. 2. Section 2080.3 is added to the Fish and
Game Code, to read:
2080.3. Nothing in this chapter prohibits the take, or the
incidental take, of any endangered, threatened, or candidate species
if the Secretary of the Interior or the Secretary of Commerce
designates an experimental population, pursuant to subparagraph (A)
of paragraph (2) of subdivision (j) of Section 1539 of Title 16 of
the United States Code, of an endangered or threatened species that
is listed pursuant to Section 1533 of Title 16 of the United States
Code and adopts a regulation pursuant to Sections 17.81 and 17.82 of
Title 50 of the Code of Federal Regulations that contains
prohibitions and exceptions to the prohibitions for the designated
experimental population, and the take, or incidental take, occurs in
conformance with that regulation.
SEC. 3. Section 2080.5 is added to the Fish and
Game Code, to read:
2080.5. (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 Secretary of the
Interior or the Secretary of Commerce an enhancement of survival
permit pursuant to subparagraph (A) of paragraph (1) of subdivision
(a) of Section 1539 of Title 16 of the United States Code that
authorizes the take of an endangered species, threatened species, or
candidate species that is listed 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
enhancement of survival permit, if that person does both of the
following:
(1) Notifies the director in writing that the person has received
an enhancement of survival permit issued pursuant to the federal
Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.).
(2) Includes in the notice to the director a copy of the
enhancement of survival permit.
(b) Upon receipt of the notice specified in paragraph (1) of
subdivision (a), the director shall direct the publication of that
notice in the General Public Interest section of the California
Regulatory Notice Register.
(c) Within 30 days after the director has received the notice
described in paragraph (1) of subdivision (b) that an enhancement of
survival permit has been issued pursuant to the federal Endangered
Species Act of 1973, the director shall determine whether the
enhancement of survival permit is consistent with the goals of this
chapter. If the director determines within that 30-day period, based
upon substantial evidence, that the enhancement of survival permit is
not consistent with the goals of this chapter, then the taking of
that species may only be authorized pursuant to this chapter.
(d) The department shall immediately publish the determination
pursuant to subdivision (b) 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 1539 of Title 16 of the United States
Code that alters the requirements for issuing an enhancement of
survival permit, as applicable.