BILL ANALYSIS                                                                                                                                                                                                    Ó





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          |                                                                 |
          |         SENATE COMMITTEE ON NATURAL RESOURCES AND WATER         |
          |                   Senator Fran Pavley, Chair                    |
          |                    2011-2012 Regular Session                    |
          |                                                                 |
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          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. 

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          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 
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          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 
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          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. 

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          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 
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          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 
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          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 
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          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.
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          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 
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          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 







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