BILL ANALYSIS                                                                                                                                                                                                    

                                                                  SB 1349
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          Date of Hearing:   June 29, 2010

                            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  


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            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   

          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  


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          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  

          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  


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          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  
          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.  


          Department of Fish and Game (sponsor)
          Association of California Water Agencies
          California Chamber of Commerce
          California Farm Bureau Federation
          Western Growers


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          None on file.

           Analysis Prepared by  :    Tina Cannon Leahy / W., P. & W. / (916)