BILL ANALYSIS Ó
SB 1148
Page 1
SENATE THIRD READING
SB 1148 (Pavley)
As Amended August 24, 2012
Majority vote
SENATE VOTE :24-14
WATER, PARKS & WILDLIFE 8-2APPROPRIATIONS 10-5
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|Ayes:|Huffman, Blumenfield, |Ayes:|Gatto, Blumenfield, |
| |Campos, Fong, Gatto, | |Bradford, |
| |Roger Hernández, Hueso, | |Charles Calderon, Campos, |
| |Yamada | |Davis, Fuentes, Hall, |
| | | |Hill, Cedillo |
|-----+--------------------------+-----+--------------------------|
|Nays:|Bill Berryhill, Beth |Nays:|Harkey, Donnelly, |
| |Gaines | |Nielsen, Norby, Wagner |
| | | | |
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SUMMARY : Makes numerous changes to implement policy
recommendations arising out of a Strategic Vision process for
the Department of Fish and Game (DFG) and the Fish and Game
Commission (FGC) in order to improve the effectiveness of these
entities in protecting and managing state fish and wildlife
resources. Specifically, this bill :
1)States legislative findings and declarations regarding the
Strategic Vision process that was initiated as a result of the
passage of AB 2376 in 2010 and the need for reforms to improve
and enhance the capacity of DFG and FGC. States legislative
intent to focus more of the work of the FGC on implementing
state hunting and fishing laws, and to enhance DFG's ability
to focus on managing its lands, its enforcement
responsibilities, its conservation programs, and enhancing the
scientific basis of DFG's decisions.
2)Requires the Office of Planning & Research (OPR) to include
trustee agencies such as DFG in developing the state
Environmental Goals and Policy Report.
3)Modifies and updates requirements related to sustainable
management of the state's hatchery program and native
fisheries, including the following:
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a) States legislative findings and declarations regarding
the role of hatcheries and the importance of genetic
diversity in managing California native trout species, and
that DFG seek to provide diverse recreational angling
opportunities.
b) Requires DFG to make publicly available on its Internet
website information on the inventory of California trout
streams maintained by DFG.
c) Requires the FGC to produce a report every other year,
instead of every year as required by existing law,
regarding progress in implementing the state's wild trout
program.
d) Requires DFG every 5 years to update the state Strategic
Plan for Trout Management adopted in 2003, and specifies
objectives the plan shall be intended to ensure, including
providing angling opportunities, conserving wild and native
trout, and ensuring environmental sustainability and
overall ecosystem watershed health.
e) Requires the plan to be guided by specified
considerations including adaptive management of trout
populations to be self-sustaining, increasing angler
satisfaction, ensuring appropriate age distribution of wild
trout, and establishing ecologically and environmentally
sustainable hatchery and stocking practices for native
trout.
f) Requires DFG to prepare trout management plans
consistent with the Strategic Plan for Trout Management,
for all wild trout waters within three years following
designation of a wild trout water by the FGC, and to update
the plans every 5 years.
g) Requires priority to be given for stocking native
hatchery-produced species where stocking is determined
appropriate by DFG. Provides that waters where stocking is
not appropriate include waters where stocking would
adversely affect species listed under state or federal
endangered species acts. Requires hatchery-produced trout
to be stocked to support sustainable angling opportunities
and trout fishing access, including urban fisheries.
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h) Requires DFG to ensure that trout stocked for
recreational purposes are unable to reproduce, with
specified exceptions.
i) Requires DFG to form a strategic trout management team
to oversee trout management statewide pursuant to the
Strategic Plan for Trout Management.
j) Requires DFG's Strategic Plan for Trout Management to be
reviewed by the Strategic Trout Management Team, the
hatchery operations committee, and an ad hoc peer review
committee to ensure sound management, improved genetic
diversity, and best available science.
aa) Deletes outdated obsolete provisions relating to state
hatchery production goals and clarifies that the state
hatchery production goal is 2.75 pounds of released trout
per sport fishing license sold, and that a predominant
number of released fish are of catchable size or larger.
bb) States that at least $2 million dedicated under existing
law to the Heritage and Wild Trout program from the
Hatcheries and Inland Fisheries Fund (HIFF) may be used for
development of trout management plans, and that up to 25%
may be expended for watershed restoration projects,
resource assessment and scientific inquiry. Clarifies that
funds from the HIFF may be used for development of the
state Strategic Plan for Trout Management, and states that
funding for Heritage Trout Waters is a priority for the
HIFF.
cc) Requires DFG on an annual basis to invest in hatchery
facility improvements and rehabilitation to ensure progress
towards achieving hatchery production targets.
dd) Authorize DFG, beginning January 1, 2015, to obtain
hatchery-produced fish from any California-based hatchery
if all of the following criteria are met:
i) The hatchery production goal of 2.75 pounds of
released trout per sport fishing license sold is not met;
ii) DFG, following an inspection, determines the
hatchery is in compliance with standards that are as
stringent as those in effect at state hatcheries in order
to minimize the risk of the spread of disease or invasive
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species; and,
iii) The cost per pound of the fish provided by the
hatchery does not exceed the cost of state hatchery fish
calculated equivalently, including transportation costs.
ee) Appropriates $1 million from the Hatchery and Inland
Fisheries Fund to DFG for capital outlay expenditures
necessary for improvements to state hatcheries to achieve
hatchery fish production goals. Requires DFG to prioritize
capital outlay investments based on expected improvements
in hatchery egg and fish production.
4)Establishes a program for review, approval and oversight of
mitigation and conservation banks as follows:
a) States legislative findings and declarations regarding
the values and importance of conservation and mitigation
banks in providing habitat lands which are managed to
fulfill mitigation requirements, and the need for greater
transparency to ensure mitigation requirements are fully
met and to fund the regulatory costs of DFG related to
mitigation and conservation banks. States legislative
intent that conservation banking, mitigation banking, and
other forms of mitigation for impacts to fish and wildlife
species comply with applicable law and are consistent with
specified principles, including that the mitigation should
be proportional to the quantified impact, whenever feasible
be based on landscape scale conservation planning and the
ecological needs of impacted species, be based on best
available science, include monitoring for effectiveness, be
transparent to the public and participants, and that
mitigation costs for landowners to participate should be
reasonable and flexible.
b) Defines conservation bank, mitigation bank and related
terms.
c) Requires any person seeking to establish a mitigation or
conservation bank to submit a bank prospectus to DFG with a
fee of $10,000 to cover the costs of DFG's review.
Specifies what must be included in a bank prospectus.
Establishes procedures for DFG's review and approval of a
bank prospectus.
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d) Authorizes any person interested in establishing a bank
to submit an optional draft prospectus for review by DFG,
accompanied by a fee of $1,500 to cover DFG's costs, with
total review fees for a prospectus not to exceed $10,000.
e) Once the bank prospectus is approved, allows the
applicant to submit a bank agreement package to DFG.
Requires the agreement package to be consistent with the
prospectus and contain specified information including,
among other things, a management plan, a bank closure plan,
a draft conservation easement or grant deed, a credit
ledger and release schedule, an economic analysis of
funding needed to support the bank in perpetuity, financial
assurance estimates, and a phase 1 environmental
assessment. Requires payment of a $25,000 fee to cover
DFG's review. Establishes procedures for DFG's review and
approval of the package, including authority for assessment
of additional fees if necessary to cover DFG's review of
new information or substantial changes requested by the
applicant.
f) Provides similar procedures and fee requirements for
amendments to approved banks.
g) Prohibits any bank from being operative, vested or
final, and prohibits any bank credits from being issued,
until DFG has provided written approval of a bank and a
conservation easement has been recorded on the site.
h) Requires DFG after a bank is approved to conduct
compliance review and to establish and maintain a database,
available on DFG's website or another website that is
linked to DFG's website, which allows bank sponsors to
update information about mitigation and conservation banks.
i) Requires DFG to provide an annual report to the
Legislature on the mitigation and conservation bank
program.
j) Requires DFG to collect a total payment of $60,000 per
bank to cover all or a portion of DFG's bank implementation
and compliance costs, with payments due following credit
releases.
aa) Requires DFG to annually adjust mitigation and
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conservation bank fees to reflect changes in the Implicit
Price Deflator, and requires DFG to adopt guidelines and
criteria to implement mitigation and conservation bank
requirements. The guidelines shall incorporate information
from a 2011 Memorandum of Understanding the state entered
with federal agencies for purposes of jointly establishing
a coordinated approach to mitigation and conservation
banking in California.
5)Makes the following changes relating to fees charged for fish
and game activities:
a) Requires FGC to adjust license, stamp, permit and tag
fees for inflation based on changes in the Implicit Price
Deflator, pursuant to Section 713 of the Fish and Game
Code, at least every 5 years.
b) Requires, with regard to the fees for lifetime
sportsmen's licenses, sport and commercial fishing
licenses, commercial fish business and vessel licenses,
hunting licenses, ocean sport fishing enhancement stamps,
commercial fishing enhancement stamps, and trapping
licenses that the FGC adjust the license fees to recover,
but not exceed, all reasonable administrative and
implementation costs of DFG and the FGC relating to those
licenses.
c) Provides that except where the Fish and Game Code
expressly prohibits the adjustment of statutorily imposed
fees, the FGC may establish a fee or the amount thereof by
regulation. Requires that fees established by the FGC
shall be in an amount sufficient to recover all reasonable
administrative and implementation costs of the FGC and DFG
relating to the program for which the fee is paid.
Authorizes the FGC to establish a fee structure to phase in
fee adjustments to provide for full cost recovery within 5
years.
d) Clarifies the DFG's authority to establish and adjust
fees for CEQA filings, streambed alteration agreements, and
scientific collector permits. Requires that the fees be
sufficient to recover all reasonable administrative and
implementation costs and authorizes DFG to establish a fee
structure to phase in fee adjustments to provide for full
cost recovery within 5 years.
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6)Shifts responsibility from the FGC to the Ocean Protection
Council (OPC) for future modifications and updates to Marine
Protected Areas (MPAs). Requires the OPC to act on petitions
for modifications every 3 years. Requires DFG prior to OPC's
decision to review the petition and make recommendations to
the OPC. Requires DFG in conducting its analysis to consult
with other agencies with responsibility for ocean activities,
including the FGC, the Regional Water Quality Control Board,
the State Lands Commission, and the Coastal Commission.
Requires establishment of a scientific peer review process and
requires the OPC to establish a process for public
participation in the OPC's decisions. Authorizes the DFG to
establish a unit or division of ecosystem-based management
within DFG to facilitate this review and to further
conservation of marine resources under DFG's jurisdiction.
EXISTING LAW :
1)Establishes DFG in the Natural Resources Agency and provides
that wildlife resources are held in trust by DFG for the
people of the state, and generally charges DFG with
administration and enforcement of the Fish and Game Code,
along with the FGC.
2)Establishes the FGC in the Constitution and authorizes the
Legislature to delegate to the FGC powers relating to the
protection and propagation of fish and game. The Legislature
has delegated by statute to the FGC the power to regulate the
taking or possession of birds, mammals, fish, amphibians and
reptiles in accordance with prescribed laws.
3)The numerous statutory responsibilities of DFG and the FGC
include but are not limited to: regulation of the catch and
take of species; protection of wildlife and their habitats;
conservation of endangered and threatened species; operation
of hatcheries for various fisheries; protection of streambeds
from harmful activities; management of lands set aside for
fish and wildlife habitat and access to lands for recreational
activities such as fishing and hunting. DFG also is a
responsible agency under CEQA on proposed projects that may
have a significant impact on fish and wildlife resources.
4)Provides in the Fish and Game Code for various licenses and
permits, the fees for which are in some cases set in statute
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and in other cases set by DFG or the FGC. Many but not all of
the fees are adjusted for inflation.
5)Establishes a state policy to maintain wild trout fisheries
and discourages artificial planting of hatchery raised
nonnative fish in wild trout waters. Provides for designation
of Heritage Trout Waters containing indigenous native trout
species. Requires that one third of sport fishing license fees
be used for attaining specified production goals for state
hatcheries by certain dates, and designates $2 million of
those funds for the Heritage and Wild Trout program.
6)Directs DFG to establish and update a database of wetlands
mitigation banks. Establishes a state policy to preserve
wetlands habitat and requires DFG to develop and administer a
program for wetlands mitigation banks in the Sacramento/San
Joaquin Valley.
7)Requires the FGC every three years after MPAs are established
to receive and consider petitions for modifications to the
MPAs.
FISCAL EFFECT : According to the Assembly Appropriations
Committee:
1)Unknown workload costs to DFG and the commission to review and
adjust fees as needed (special funds). These costs should be
covered by fee revenue, which DFG and the commission can set
to ensure they do so. However, there may be a lag between the
time DFG and the commission develop and adopt fees and the
time any resulting revenue increase is realized. It is not
clear DFG or the commission has the resources to cover these
activities from other funds until they receive additional fee
revenue.
2)Ongoing costs of an unknown amount, but potentially exceeding
$1 million dollars annually, to DFG to mark hatchery-produced
trout (special fund).
3)Ongoing cost in the tens of thousands of dollars to DFG to
support the strategic trout management team (special fund).
4)Significant costs, likely in the low millions of dollars
annually, to DFG to plan, review, establish and monitor
conservation and mitigation bank programs (special fund).
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These costs should be fully covered by the fees the bill
authorizes DFG to collect from applicants.
5)Ongoing costs, possibly in excess of $1 million dollars, to
the Ocean Protection Council, to regulate commercial fishing
in MPAs (special fund). These costs should largely be offset
by savings to the commission, which will no longer regulate
fishing in MPAs.
Amendments adopted on the Assembly Floor also appropriate $1
million from the HIFF for capital outlay expenditures necessary
to improve and rehabilitate state hatchery facilities.
COMMENTS : This bill implements numerous changes designed to
implement broad policy recommendations arising out of a
Strategic Vision process conducted this past year to improve the
capacity of DFG and the FGC to carry out their public trust
mandates for protection and management of fish and wildlife. AB
2376 (Huffman), Chapter 424, Statutes of 2010, directed the
Secretary of Natural Resources to appoint a state executive
committee, blue ribbon citizen commission (BRCC), and
broad-based stakeholder advisory group to engage in a public
deliberative process and develop recommendations to improve the
effectiveness of DFG and the FGC. The groups met for several
months and released a final report in April 2012. The report
includes broad recommendations on such issues as mission, scope
of responsibilities, scientific capacity, principles to guide
natural resources management, permitting and enforcement.
This bill contains four major themes: it modifies various fee
authorities of DFG and the FGC to allow for recovery of
administrative costs; establishes a process for review, approval
and oversight of mitigation and conservation banks; updates
California's hatcheries and wild trout program; and shifts
responsibility for certain aspects of MPA adaptive management
from the FGC to the OPC. While not all of the details in this
bill are mentioned specifically in the final Strategic Vision
report, the provisions are consistent with the general
recommendations and overall policy goals of the report.
This bill creates a program for review, approval and oversight
of mitigation and conservation banks. These changes facilitate
private sector participation in providing necessary mitigation
opportunities and are supported by many participants in the
mitigation and conservation bank industry. Mitigation and
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conservation banks are entities established by private firms to
offer mitigation to project proponents for projects requiring
permits from DFG. Conservation banks are generally understood
to provide mitigation for species, while mitigation banks are
generally understood to provide mitigation for wetlands losses.
DFG has found that mitigation and conservation banks can provide
more effective habitat conservation than piecemeal per project
mitigation, but available information on the status of banks has
been limited. Although mitigation and conservation banks have
been an ongoing activity for many years, the policy has for the
most part not been codified. In the absence of an established
funding source, DFG has also suspended approval of any new
mitigation banks at this time. This bill provides the fee
revenue to cover DFG's program costs, which promotes the
Strategic Vision goal of ensuring that programs have identified
funding sources. The database requirements also further the
goals of increased transparency and accountability. The option
allowing an applicant to submit a draft prospectus for
pre-review seeks to meet the goals, identified in the Strategic
Vision, of providing assistance to applicants with pre-project
planning and making the application review process more
consistent and transparent to applicants.
This bill makes numerous reforms to update DFG's hatcheries and
wild trout programs. Among other things, it reflects
advancements in the scientific understanding of the impacts of
hatchery practices on native fish populations, and the
importance of genetic diversity in maintaining wild
self-sustaining populations. This bill seeks to balance the
goal of providing quality outdoor recreational opportunities for
fishermen who pay license fees that support fishery programs,
with the goal of sustainable ecosystem-based management. The
Strategic Vision placed a priority on science-based
decision-making and overall ecosystem health. Regular updates
to the existing Strategic Plan for Trout Management are proposed
to provide an overarching systematic framework for the
management of all trout species. This bill also seeks to
incorporate best practices into hatchery production.
Maintaining and promoting genetic diversity in hatchery fish is
recognized as critical to producing robust and resilient fish
and a healthy fishery. Existing policy and numerical goals on
stocking to promote angler opportunities, established through AB
7 (Cogdill), Chapter 689, Statutes of 2005, are retained, and
program goals are clarified to align with current practice and
scientific understanding. DFG is specifically authorized to
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purchase trout from private hatcheries to meet trout stocking
goals, if specified conditions are satisfied. This bill also
appropriates $1 million from the HIFF for improvements to state
hatcheries needed to help meet state hatchery production goals.
The hatchery and wild trout reforms in this bill seek to promote
the goals identified in the Strategic Vision of maintaining
healthy ecosystems, promoting public outdoor recreation
opportunities, practicing adaptive management, ensuring
science-based decisions, and promoting ecosystem based
management informed by credible science. The requirement for
DFG to make information on trout inventories available on DFG's
website also promotes the Strategic Vision's goal of providing
timely access to data collected or used by DFG and the FGC.
These provisions recognize the changing diversity of California
by requiring that areas where hatchery-produced trout are
stocked to provide angling opportunities and fishing access
include urban fisheries.
This bill includes provisions allowing DFG and the FGC to adjust
various licensing fees to achieve cost recovery, with direction
to phase in fee increases as necessary for various programs.
These changes apply to both sport and commercial fishermen and
to hunters. Inadequate funding was identified in the Strategic
Vision process as one of the greatest barriers to implementation
of DFG's mission, and it was acknowledged that meaningful change
must include fiscal reforms. The provisions in this bill giving
DFG and the FGC authority to adjust fees as necessary to recover
program costs is consistent with recent legislative actions
giving more fee setting authority for fishing and hunting to the
FGC which would set the fees through a regulatory process under
the Administrative Procedures Act (APA). Information provided
by DFG and FGC staff early on in the Strategic Vision process
emphasized the need for financial stability, and the difficulty
both entities face with unfunded mandates. In particular, DFG
and the FGC noted that 57% of the fees for licenses and permits
in the Fish and Game Code require legislative action in order to
adjust fees to bridge the gap between revenues and operational
costs. The Legislature has frequently imposed new statutory
mandates on DFG without providing the funding necessary for
implementation. This bill begins the process of correcting that
problem by shifting authority from the Legislature to the FGC
and DFG to make adjustments in fees as necessary to recover but
not exceed reasonable administrative and implementation costs
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relating to the particular license or permit.
Supporters of this bill note the long overdue need for reform of
the state's wildlife management and in particular highlight
support for the provisions transferring responsibility for
ongoing management of California's MPAs, now that the network of
MPAs has been established, to the OPC. Opponents in particular
objected to provisions included in prior versions of this bill
clarifying strict liability for fish and game code violations
and creating a private cause of action allowing for the filing
of a civil action where the state fails to prosecute wildlife
violations. It should be noted that the private cause of action
and strict liability provisions were deleted from this bill in
amendments taken in the Assembly Appropriations Committee. Some
opponents also raised concerns with prior language in this bill
which shifted responsibility for future modifications of MPAs
from the FGC to DFG. Amendments taken in the Assembly
Appropriations Committee also amended the MPA related provisions
to shift these responsibilities instead to the OPC.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096
FN: 0005565