BILL ANALYSIS SB 1349 Page 1 Date of Hearing: June 29, 2010 ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE Jared William Huffman, Chair SB 1349 (Cogdill) - As Amended: June 24, 2010 SENATE VOTE : 36-0 SUBJECT : Endangered species: experimental San Joaquin River salmon population SUMMARY : Amends the California Endangered Species Act (CESA) to authorize take of an experimental population of Chinook salmon to be introduced as part of the San Joaquin River restoration. Specifically, this bill : 1)Makes legislative findings that amending CESA to authorize the taking of an experimental population of San Joaquin River spring run Chinook salmon is meant to aid in the implementation of the historic San Joaquin River settlement approved by Congress and does not create any precedent as to future application. 2)Allows the Department of Fish and Game (DFG) to authorize the taking of members of the experimental population of San Joaquin River spring run Chinook salmon in two ways: a. If DFG finds an "enhancement of survival permit" issued by the National Marine Fisheries Service (NMFS) under the Federal Endangered Species Act (FESA) for the experimental population will further the conservation of the species; or, b. If DFG finds that regulations promulgated by NMFS in the Federal Register which specify management restrictions, protective measures, prohibitions, and exceptions to prohibitions for the designated experimental population further conservation of the species, include adequate avoidance and minimization measures, and avoid jeopardizing the continued existence or recovery of the experimental population. EXISTING LAW 1)Prohibits the taking (i.e. hunting, pursuing, capturing or SB 1349 Page 2 killing) of a species listed in accordance with CESA as an endangered, threatened, or candidate species. 2)Provides that if any person obtains an incidental take statement or incidental take permit pursuant to FESA that authorizes the taking of an endangered species or threatened species listed pursuant to both FESA and CESA, no further authorization or approval is necessary under CESA for that person to take state-listed species identified in, and in accordance with, the incidental take statement or incidental take permit, if that person provides notification and a copy of the incidental take statement or incidental take permit to the DFG Director and the Director determines that the statement or permit is consistent with the requirements of CESA. 3)Defines conservation, under CESA, as using all methods and procedures which are necessary to bring a listed species to the point at which CESA protections are no longer necessary. 4)Establishes that the Secretary of Commerce has FESA jurisdiction over marine organisms and anadromous (i.e. ocean-going) fish like salmon and steelhead. The Secretary of Interior has FESA jurisdiction over all other species. 5)Allows a Federal agency, under FESA, to authorize the release (and related transportation) of any population (including eggs, propagules, or individuals) of an endangered species or a threatened species outside the current range of such species if the Secretaries of Interior or Commerce, as appropriate, determine that such release will further conservation of the species. Such a release, including any offspring arising solely from that release, constitutes an "experimental population" of that species. 6)Requires the Secretaries of Interior or Commerce, as appropriate, to treat each member of the experimental population as a threatened species. This allows the Secretaries to authorize take of members of an experimental population by regulation instead of by individual permit. FISCAL EFFECT : Unknown COMMENTS : In the 1800s, California's San Joaquin River supported large SB 1349 Page 3 salmon populations, including the southernmost Chinook salmon population in North America. Since then, water diversions for agricultural development in the San Joaquin Valley, including Friant Dam and other projects, resulted in the drying up on the San Joaquin River between Friant and the mouth of the Merced River. As the San Joaquin River Restoration Program (SJRRP) web site advises, the SJRRP is a direct result of a settlement reached by the U.S. Departments of the Interior and Commerce, the Natural Resources Defense Council, and the Friant Water Users Authority in September 2006 resolving an 18-year lawsuit to provide sufficient fish habitat in the San Joaquin River below Friant Dam near Fresno. The settlement received Federal court approval in October 2006 and approval by Congress in March 2009. The SJRRP has two primary goals: To restore and maintain fish populations in "good condition" in the main stem of the San Joaquin River below Friant Dam to the confluence of the Merced River, including naturally reproducing and self-sustaining populations of salmon and other fish; and, to reduce or avoid adverse water supply impacts to all of the Friant Division long-term contractors that may result from the interim flows and restoration flows provided for in the settlement. DFG states that it is sponsoring this bill because it "will be helpful in the near future as DFG and partners proceed to implement the [SJRRP], which has a requirement that salmon are to be re-introduced into the upper-reaches of the San Joaquin River no later than December 31, 2012." DFG states that this bill gives DFG flexibility "by allowing entities or individuals that receive take protection from a federal 'experimental population' special rule" an alternative mechanism for also complying with CESA. Otherwise, DFG feels it "will likely face stiff resistance from private landowners or other state and local agencies that do not want additional restrictions put on their respective activities, or the use of their land." A supporter of this bill notes that, currently DFG "does not have the authority for designating an experimental population or for the incidental take of an experimental population." This bill provides two different ways for DFG to authorize take of experimental populations. The first type of authorization is activity-specific but may be for a single activity, a series of activities, or a number of activities over a specific period of time. However, the purpose of the authorization is to allow SB 1349 Page 4 action, usually scientific or resource management activities, in furtherance of establishing the experimental population. Examples could include scientific collecting of the species for introduction or monitoring. This bill allows that a person who obtains a federal enhancement of survival permit that authorizes take of members of the experimental population of San Joaquin River spring run Chinook salmon is not required to obtain any further take authorization from DFG pursuant to CESA if the DFG Director, after receiving notice and a copy of the permit, determines that the enhancement of survival permit will further the conservation of the species. The timing and extent of the take authorization is limited to terms of the federal enhancement of survival permit and expires upon the expiration of the federal permit or upon the effective date of an amendment to FESA that alters the requirements for issuing an enhancement of survival permit. The second type of authorization is less activity-specific. For each reintroduction of a species, a regulation is issued pursuant to FESA Section 10(j) (known as a "10(j) rule") by either the Secretary of the Interior or the Secretary of Commerce, as appropriate, which determines whether the population is essential to the survival of the species and specifically describes how it will be treated by agency staff and what private citizens can or cannot do in regard to the species. This bill allows DFG to authorize take for the activities covered by the 10(j) rule if it determines the 10(j) rule for the experimental population of San Joaquin River spring run Chinook salmon furthers the conservation of the species, contains all reasonably feasible measures to avoid and mitigate the impacts of any taking of the species which is allowed by the regulation, and does not jeopardized the restoration of the species in the San Joaquin River. REGISTERED SUPPORT / OPPOSITION : Support Department of Fish and Game (sponsor) Association of California Water Agencies California Chamber of Commerce California Farm Bureau Federation Western Growers SB 1349 Page 5 Opposition None on file. Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916) 319-2096