BILL ANALYSIS Ó ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2011-2012 Regular Session | | | ----------------------------------------------------------------- BILL NO: AB 2402 HEARING DATE: June 26, 2012 AUTHOR: Huffman URGENCY: No VERSION: June 20, 2012 CONSULTANT: Bill Craven DUAL REFERRAL: No FISCAL: Yes SUBJECT: Department of Fish and Game: Fish and Game Commission: entitlements: fees: violations. BACKGROUND AND EXISTING LAW The Department of Fish and Game (department) is the trustee agency for all fish and wildlife in California. It has extensive responsibility for enforcement of laws relating to hunting and fishing, protecting streambeds, responding to oil spills, and many other duties. After multiple reports, audits, and stakeholder suggestions for reform, AB 2376 (Huffman) was adopted in 2010 that established a formal strategic vision process for the department. That legislation resulted in several layers of stakeholder participation and recommendations, not all of which made it into the final report. In general, however, this stakeholder process was much more organized and coordinated, and it resulted in recommendations to (1) improve the scientific basis of department decision-making; (2) to expand its work with conservation efforts while shifting more of the hunting and fishing work to the Fish and Game Commission (commission) although that recommendation was not explicitly adopted in the final report; (3) to improve the funding of the department either through general fund support or through making sure that fees cover the costs of their respective programs; (4) to improve the department's coordination with stakeholders and other state agencies; (5) and many others. PROPOSED LAW AB 2402 is a major effort by the author to include many department reforms from the strategic vision process and other sources that have been considered by many experts over the years. 1 The bill has many provisions, which appear in the bill in this order: 1. Adds department wardens to the law enforcement personnel who may not be selected for voir dire in criminal matters. 2. Adds a definition of adaptive management to the Fish and Game Code. It would mean management that improves biological resources over time by using new information gathered through monitoring, evaluation and other credible sources. The definition is intended to be a tool for improving future actions. 3. Adds a definition of "credible science" that would mean the best available scientific information that is not overly prescriptive due to the dynamic nature of science and includes the evaluation principles of relevance, inclusiveness, objectivity, transparency, timeliness, and other criteria including peer review of information as appropriate. 4. Changes the name of the department to the Department of Fish and Wildlife Conservation. 5. Adds a definition of "ecosystem based management" that would define the term as an environmental management approach relying on credible science, as defined earlier, that recognizes the full array of interactions within an ecosystem, including humans, rather than considering single issues, species, or ecosystem services in isolation. 6. As part of the proposed name change, the department is required to exhaust all supplies, uniforms, etc., until those items are exhausted or unserviceable. 7. Adds provisions to the existing Automated License Data System (ALDS) to include the citations issued by department wardens. To the extent feasible, the department would also electronically file citations with the court, receive electronic reporting from courts on case dispositions, and electronically track court imposed fines and penalties to ensure compliance. 8. Adopts policies that ecosystem based management and credible science be used by the department and the commission. 9. Adds intent language that the department and the commission should work in partnership with other agencies and other stakeholder, should improve interagency coordination on projects 2 that require multiple permits, and improve data-sharing across agencies. 10. Establishes a new independent science panel to provide advice and recommendations to the department. The panel would have no more than 10 experts in biological and other sciences and would provide an independent and objective view of the issues underlying policy decisions that the department might make. The panel would provide the best available scientific information to the department and the commission, and promote peer review and scientific integrity. The panel could provide expertise on listings under the state endangered species act. It would also develop a scientific integrity policy for the department that would include ethical standards for scientists, standards for independent peer review and other best practices. For marine issues, the department may use the Ocean Science Trust for these purposes. 11. The scientific take permits issued mainly to researchers would include the incidental take of listed and fully protected species. 12. The department and the commission would be charged with developing a strategic plan and a report to the Legislature on reforms initiated from the strategic vision process and other reforms recommended by the department. 13. The department wardens would be able to use the ALDS system while in the field to assist in learning of pending or historic citations by alleged violators. 14. The department would be encouraged to enter into contracts or other arrangements with nonprofits for purposes relating to the conservation programs of the department. 15. The bill authorizes incidental take of listed and fully protected species as part of streambed alteration agreements between the department and project applicants when necessary to complete the project or improve protection of those species. 16. To clarify that the department must have specific authority in the law (which it does not now have) to authorize the take of any species, not just those that are protected by endangered species laws or other laws, a new section would be added stating that the department may authorize in writing the take of species other than listed or fully protected species. This provision is limited to permits for which a state agency is the lead agency 3 and would not apply to private permit applicants. 17. Several provisions in the bill would shift the implementation of the state endangered species act from the commission to the department. These include the responsibility for maintaining the lists of threatened and endangered species, the guidelines that pertain to petitioning for a listing, the public process that accompanies a listing decision, and all other provisions of the endangered species statute would be transferred. 18. Additionally, the department would be required to obtain independent scientific peer review of new species listing proposals. Sections 20-42 contain the provisions in items 17-18. 19. In circumstances in which mitigation for projects (often desert renewable energy projects) occurs on federal lands and the federal agencies are not able to provide for the permanence of that mitigation, a new provision called "additive mitigation" would be added. This would require an additional mitigation increment of 20% of the acreage necessary to maintain the state's mitigation requirements. This provision is limited to lands designated as Critical Environmental Concern areas by the federal Bureau of Land Management. 20. A fee adjustment for professional guides is included. Like other such fee adjustments, the objective is to fully recover, but not to exceed, the costs of the department and the commission relating to those licenses. 21. Similar language in item 20 would apply to lifetime hunting licenses. 22. Similar language in item 20 would apply to kelp harvesting permits. 23. Similar language in item 20 would apply to abalone permits. 24. Similar language in item 20 would apply to marine aquaria collector permits. 25. The department would be encouraged, but not required, to establish an environmental crimes task force to consider ways to improve coordination with other law enforcement agencies to deter poaching and other violations of the Fish and Game Code. 4 26. Endowment funds paid to the department for its conservation programs, conservation easements, and other habitat programs and the interest on those funds would be continuously appropriated to the department for the purpose of its long-term management of those lands. The department would also be given authority to invest those funds in an account outside the Pooled Money Investment Account but still within the State Treasury system. 27. The department wardens would be added to the provision in existing law that allows other peace officers and firefighters who are injured or disabled to receive one year of salary instead of disability payments. 28. A penal code amendment would allow the department wardens to overhear or record specified communications. ARGUMENTS IN SUPPORT According to the author, this bill enacts recommendations resulting from a broad-based strategic visioning process for reforms of the department and the commission in order to enhance the effectiveness of these agencies in protecting and managing fish and wildlife and their habitats for the benefit and use of the people of the state. The author points out that these two agencies, both about 140 years old, have taken on increasingly important roles in management and conservation of wildlife and their habitats. Initially, the department and the commission were primarily responsible for administering hunting and fishing programs. These functions remain important today, but other functions, such as non-game wildlife protection, and maintaining the health of entire ecosystems have all become central and important responsibilities for both agencies. As for specific proposals in AB 2402, the author has provided the following information: 1. A proposed change in name of the department was a specific recommendation of the Blue Ribbon Citizens Commission (BRCC). The BRCC recommended a name change as necessary to more accurately reflect the scope of the department and the commission's jurisdiction in the 21st century. 2. The new definitions of ecosystem based management, credible science, adaptive management and scientific integrity as 5 principles that should guide the work of the department and the commission were all specific recommendations of the strategic vision, supported by the stakeholder group. 3. The intent language that the department and the commission should foster and participate in partnerships and collaborations with other agencies and stakeholders, including joint permit review efforts for projects involving multiple permits was a specific recommendation of the strategic vision, supported by the stakeholder group. 4. The provision establishing an independent scientific advisory panel to assist the department on issues such as peer review was included in earlier drafts of the strategic vision, and promotes the goal in the final report of credible science and utilizing independent peer review. 5. The provision to require the department to maintain a statewide electronic system for managing citations issued by Fish and Game wardens (wardens) that will allow better communication between the department and the courts and facilitate prosecution of violations. 6. Permitting the department to accept donations of funds and to enter into agreements with nonprofit organizations to assist the department with fundraising and other services very similar to the existing relationship between the Department of Parks and Recreation and the California State Parks Foundation. 7. Requiring the department by January 1, 2015 to modify its Automated License Data System to include information on fish and game violations and to provide wardens with electronic access to ALDS information in the field was included in earlier drafts of the strategic vision report and will help to facilitate field enforcement by wardens. 8. A provision clarifies the department's authority to issue incidental take permits for non-listed species. While the department has authority under the law to issue incidental take permits for endangered or threatened species, it does not have clear authority to issue an incidental take permit for a non-listed species. 9. Several provisions shift responsibility for review of petitions and proposed listing decisions under the California Endangered Species Act (CESA) from the commission to the department. The department would hold public hearings to 6 consider proposed listings and provisions clarify when the record of the proceedings may be closed and the time frames within which the department must issue its decision. This bill requires independent peer review of all species' status reports and allows for an extension of up to 6 months, if necessary, to complete the peer review process and provide for public disclosure. This change was recommended by members of the BRCC and contained in a joint letter of recommendations submitted as part of the strategic vision process. The letter was signed by former state resource secretaries who served in both Republican and Democratic administrations. There is currently a mismatch between CESA requirements and the commission's capacity. CESA requires that listing and candidacy decisions be made strictly on the basis of science. The commission is a policy body whose non-paid members and limited staff lack the capacity to make decisions based on a thorough review of the science. There is no requirement that members have a scientific background and currently no member has such experience. As a result of this disconnect between requirements and capabilities, the commission's CESA decisions have frequently been overturned by the courts for failure to proceed in the manner required by law. Placing CESA responsibilities with the department would align CESA requirements with the department's capacity. The department, unlike the commission, has substantial scientific staff and biological expertise that could be effectively deployed in making listing decisions, just as is the case with the US Fish and Wildlife Service under the federal Endangered Species Act. Further, the commission's CESA duties divert it from its historic function as the state's policy body for fish and wildlife programs, and interfere with its oversight of the state's recreational hunting, and commercial and recreational fishing programs. The commission's preoccupation with matters like CESA, that have little to do with hunting and fishing, has caused the state's recreational hunters and anglers to conclude that the commission no longer has the time or interest to give hunting and fishing decisions the attention they require. The CESA transfer would enable the commission to once again focus on matters most closely related to their abilities and historic functions, therefore reconnecting hunters and anglers to the body that regulates the recreational take of wildlife. CESA's public notice and hearing requirements would open the department's functions to public view and participation, creating a new culture of transparency in decision-making that 7 is currently lacking at the department. This bill requires public hearings, and also requires that all department species' status reports for CESA listing petitions be submitted to independent peer review. 10. Various provisions would authorize the department and the commission to adjust certain licensing fees as necessary to recover reasonable administrative and implementation costs. The Barrier to Implementation report which accompanied the strategic vision identifies inadequate funding as one of the greatest barriers to implementation of the department's mission. Over 50% of the fees for the department's licenses and permits are set in statute, requiring legislation to raise them, when necessary, to bridge the gap between revenues and operating costs. The Legislature has frequently imposed new mandates on the department without also providing funding. The strategic vision report notes that any meaningful change must include fiscal reform. While the authority for fee adjustments in this bill would allow for cost recovery, it does not address all of the long term funding needs of the department. 11. A provision gives the department additional flexibility to invest endowment funds held in the State Special Deposit Fund, Fish and Game Mitigation and Protection Endowment Principal Account, and provides that moneys in the account are continuously appropriated to the department to fund long-term management of habitat lands. This will enable endowment funds held by the state for conservation lands to be invested in ways that increase the rate of return for long term management, similar to the flexibility that nonprofit third parties, which hold endowment funds, now may exercise. 12. A provision requires the department and the commission to develop a strategic plan to implement proposals arising from the strategic vision process, legislation enacted relating to the strategic vision process, and other proposals for reform. This language provides for follow-up and oversight on implementation of the strategic vision. 13. Several provisions provide wardens with the same standing as other peace officers with regard to laws concerning disability coverage when injured on the job, and exemption from participation in jury voir dire criminal cases. These provisions promote the strategic vision goals of equity for wardens, and recruitment and retention. They do not address pay equity or union issues. 8 14. The provision that the department establish an environmental crimes prosecutorial taskforce to assist in the prosecution and adjudication of wildlife crimes was a specific recommendation of the strategic vision and supported by the department's law enforcement branch. 15. The additive mitigation provision requires additional mitigation for projects impacting lands that were previously protected for mitigation. This provision would require a project impairing lands that were previously protected as mitigation for a prior project on federal lands, mitigate both for the loss of mitigation from the first project, the mitigation of that second project, and an additional 20%. This provision is limited to certain federally owned lands. The Nature Conservancy, Audubon California, and Ocean Conservancy support the bill based on the fact that it closely tracks the themes of the strategic vision process. ARGUMENTS IN OPPOSITION The California Farm Bureau and another coalition consisting of agricultural and commercial fishing interests opposes the bill. These groups are concerned about moving CESA listing decisions to the department from the commission, and want clarification on several of the other provisions in the bill that affect what they think is new regulatory authority for non-listed species. These groups also oppose the name change. COMMENTS 1. The author has indicated a desire to delete section 56 of the bill. 2. Although the recent amendments have converted AB 2402 into a lengthy bill, the amendments can be grouped into categories: A. One group of amendments adds science-based definitions and a science panel. B. One group of amendments improves enforcement and helps the wardens in their duties. C. One group of amendments deals with matters internal to the department such as its name, a new strategic plan, its relationships with nonprofits, the use of interest from endowment funds, and its early consultation with other agencies. D. One group of amendments shifts CESA administration from the 9 commission to the department. This group of amendments is seen by its supporters as a way to make these listing decisions more science-based and less subject to the politics that may be present on the commission. E. One group of amendments deals with some fee adjustments and the desire to have feepayers pay for the cost of their respective programs. F. There are also some amendments that don't fit into these categories such as the additive mitigation proposal on federal lands and others. SUGGESTED AMENDMENTS AMENDMENT 1 Delete Section 56. SUPPORT PawPac Audubon California Endangered Habitats League Ocean Conservancy The Nature Conservancy OPPOSITION Agricultural Council of California California Association of Recreational Fishing California Bean Shippers Association California Cattlemen's Association California Farm Bureau Federation California Grain and Feed Association California Lobster and Trap Fishermen California Pear Growers Association California Sea Urchin Commission California Seed Association California Wheat Growers Association Pacific Egg and Poultry Association Point Conception Ground Fishermen's Association Western Growers 10