Senate BillNo. 749


Introduced by Senator Wolk

(Coauthor: Senator Berryhill)

February 22, 2013


An act to amend Section 2087 of, to amend, repeal, and add Sections 2074.2, 2074.6, 2074.8, and 2075.5 of, and to add Sections 1745.1 and 3517 to, the Fish and Game Code, relating to fish and wildlife resources.

LEGISLATIVE COUNSEL’S DIGEST

SB 749, as introduced, Wolk. Habitat protection: endangered species.

(1) Existing law authorizes the Department of Fish and Wildlife to enter into contracts or other agreements with nonprofit conservation groups, as specified, for the management and operation of department-managed lands, defined to include public shooting grounds, state marine recreational management areas, ecological reserves, and wildlife management areas.

This bill would authorize the department to lease department-managed lands for agricultural activities, as specified. The bill would require the moneys collected from those agricultural leases to be used to support the maintenance and operations of department-managed lands from where the moneys were originally collected.

(2) The California Endangered Species Act (CESA) requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species, and requires the department to recommend, and the commission to adopt, criteria for determining if a species is endangered or threatened. Under CESA, an interested person may petition the commission to add a species to, or remove a species from, either the list of endangered species or the list of threatened species, and existing law requires the commission to consider the petition at a meeting, as prescribed.

This bill, until January 1, 2017, would establish an alternate process for the review of a petition, including public hearings.

(3) CESA also provides, until January 1, 2014, that the accidental take of candidate, threatened, or endangered species resulting from acts that occur on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is not prohibited by the act.

This bill would extend this exception to January 1, 2024, and would define “accidental” for these purposes.

(4) Existing law defines resident game birds and upland game bird species. Existing law permits the taking of certain nongame birds.

This bill would require the policies and regulations of the department and the Fish and Game Commission to encourage the restoration and enhancement of upland nesting cover and associated waterfowl brood habitat on both public and private lands to support the production of resident waterfowl, upland game birds, and other birds. The bill would prohibit or otherwise restrict, unless expressly authorized by law, the establishment of these habitats for the purpose of propagating waterfowl or other protected birds without the concurrence of the department.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 1745.1 is added to the Fish and Game
2Code
, to read:

3

1745.1.  

(a) For purposes of this section, “department-managed
4lands” includes lands, or lands and water, acquired for public
5shooting grounds, state marine (estuarine) recreational management
6areas, ecological reserves, and wildlife management areas.

7(b) (1) Notwithstanding Section 1745, the leasing of
8department-managed lands for agricultural activities, such as the
9cultivation of wildlife-friendly crops and grazing to enhance the
10value of habitat, shall be permitted where those activities are
11compatible with the department’s management plan for the area.

12(2) The moneys collected from agricultural leases entered into
13 pursuant to paragraph (1) shall be used to support the maintenance
14and operations of department-managed lands from where the
15moneys were originally collected.

16

SEC. 2.  

Section 2074.2 of the Fish and Game Code is amended
17to read:

P3    1

2074.2.  

(a) Atbegin insert the meeting scheduled pursuant to Section 2074,
2the commission shall hold a public hearing on the petition and
3shall receive information, written or otherwise, and oral testimony.
4After the conclusion of oral testimony from the commission and
5department staff, the petitioner, or any other persons, the
6commission may close the public hearing and administrative record
7for the commission’s decision pursuant to this section.end insert

begin insert

8(b) After the commission closes the public hearing, the
9administrative record for the commission’s decision is closed and
10it shall not be reopened except as provided in subdivision (c). Once
11the public hearing is closed, no person shall submit further
12information to the commission for consideration on that petition
13and the commission shall not accept any further information for
14consideration on that petition except as provided in subdivision
15(c).

end insert
begin insert

16(c) The administrative record for the commission’s decision
17pursuant to this section shall not be reopened once the commission
18closes the public hearing unless one of the following occurs prior
19to the commission’s decision:

end insert
begin insert

20(1) There is a change in state or federal law or regulation that
21has a direct and significant impact on the commission’s
22determination as to whether the petition provides sufficient
23information to indicate that the petitioned action may be warranted.

end insert
begin insert

24(2) The commission determines that it requires further
25information to evaluate whether the petition provides sufficient
26information to indicate that the petitioned action may be warranted.
27If the commission makes that determination during its deliberation,
28the commission may request, on the record at the scheduled
29meeting or at a continued meeting, further information on any
30issue relevant to making its determination as to whether the petition
31provides sufficient information to indicate that the petitioned action
32may be warranted. Any request by the commission pursuant to this
33paragraph shall specify a date by which the information must be
34submitted to the commission and shall serve to reopen the
35administrative record for the limited purpose of receiving further
36information relating to the issues specified by the commission in
37the request. Commission and department staff, the petitioner, or
38any other person may submit information in response to a request
39pursuant to this paragraph.

end insert
begin insert

P4    1(d) In its discretion, the commission may either close the public
2hearing and continue the meeting on the petition for the purpose
3of deliberation or continue both the public hearing and the meeting
4on the petition to a subsequent date, which shall be no later than
590 days after the meeting scheduled pursuant to Section 2074, and
6subject to applicable notice and agenda requirements. If the
7commission closes the public hearing but continues the meeting
8for the purpose of deliberation, a person shall not submit, and the
9commission shall not receive, further information relating to the
10petition except as provided in subdivision (c).

end insert

11begin insert(e)end insertbegin insertend insertbegin insertAt end insertthebegin delete scheduled meeting,end deletebegin insert meeting scheduled pursuant to
12Section 2074 or at a continued meeting scheduled pursuant to
13subdivision (d),end insert
the commission shall consider the petition, the
14department’s written report,begin delete andend deletebegin insert writtenend insert comments received, and
15begin delete theend deletebegin insert oral testimony provided during the public hearing, and theend insert
16 commission shall make and enter in itsbegin delete publicend delete record one of the
17following findings:

18(1) If the commission finds that the petition does not provide
19sufficient information to indicate that the petitioned action may
20be warranted, the commission shall publish a notice of finding that
21the petition is rejected, including the reasons why the petition is
22not sufficient.

23(2) If the commission finds that the petition provides sufficient
24information to indicate that the petitioned action may be warranted,
25the commission shall publish a notice of finding that the petition
26is accepted for consideration. If the accepted petition recommends
27the addition of a species to either the list of endangered species or
28the list of threatened species, the commission shall include in the
29notice that the petitioned species is a candidate species. The
30commission shall maintain a list of species which are candidate
31species.

begin delete

32(b)

end delete

33begin insert(f)end insert The commission shall publish and distribute the findings
34relating to the petition pursuant to Section 2078.

begin insert

35(g) This section shall remain in effect only until January 1, 2017,
36and as of that date is repealed, unless a later enacted statute, that
37is enacted before January 1, 2017, deletes or extends that date.

end insert
38

SEC. 3.  

Section 2074.2 is added to the Fish and Game Code,
39to read:

P5    1

2074.2.  

(a) At the scheduled meeting, the commission shall
2consider the petition, the department’s written report, and
3comments received, and the commission shall make and enter in
4its public record one of the following findings:

5(1) If the commission finds that the petition does not provide
6sufficient information to indicate that the petitioned action may
7be warranted, the commission shall publish a notice of finding that
8the petition is rejected, including the reasons why the petition is
9not sufficient.

10(2) If the commission finds that the petition provides sufficient
11information to indicate that the petitioned action may be warranted,
12the commission shall publish a notice of finding that the petition
13is accepted for consideration. If the accepted petition recommends
14the addition of a species to either the list of endangered species or
15the list of threatened species, the commission shall include in the
16notice that the petitioned species is a candidate species. The
17commission shall maintain a list of species which are candidate
18species.

19(b) The commission shall publish and distribute the findings
20relating to the petition pursuant to Section 2078.

21(c) This section shall become operative on January 1, 2017.

22

SEC. 4.  

Section 2074.6 of the Fish and Game Code is amended
23to read:

24

2074.6.  

begin insert(a)end insertbegin insertend insert The department shall promptly commence a review
25of the status of the species concerned in the petition. Within 12
26months of the date of publication of a notice of acceptance of a
27petition for considerationbegin delete by the commissionend delete pursuant to paragraph
28(2) of subdivisionbegin delete (a)end deletebegin insert (e)end insert of Section 2074.2, the department shall
29begin delete provide a written report to the commission,end deletebegin insert produce and make
30publicly available on the department’s Internet Web site a written
31peer reviewed report,end insert
based upon the best scientific information
32available to the department, which indicates whether the petitioned
33action is warranted, which includes a preliminary identification of
34the habitat that may be essential to the continued existence of the
35species, and which recommends management activities and other
36recommendations for recovery of the species.begin insert The department shall
37amend the draft status review report as appropriate to incorporate
38scientific information from the independent peer review. The
39revised report shall be posted on the department’s Internet Web
40site for a minimum of 30 days for public review prior to the hearing
P6    1scheduled pursuant to Section 2075. The commission may grant
2an extension of up to six months if the director determines an
3extension is necessary to complete independent peer review of the
4report, and to provide a minimum of 30 days for public review of
5the peer reviewed report prior to the public hearing specified in
6Section 2075. end insert

begin insert

7(b) This section shall remain in effect only until January 1, 2017,
8and as of that date is repealed, unless a later enacted statute, that
9is enacted before January 1, 2017, deletes or extends that date.

end insert
10

SEC. 5.  

Section 2074.6 is added to the Fish and Game Code,
11to read:

12

2074.6.  

(a) The department shall promptly commence a review
13of the status of the species concerned in the petition. Within 12
14months of the date of publication of a notice of acceptance of a
15petition for consideration by the commission pursuant to paragraph
16(2) of subdivision (a) of Section 2074.2, the department shall
17provide a written report to the commission, based upon the best
18scientific information available to the department, which indicates
19whether the petitioned action is warranted, which includes a
20preliminary identification of the habitat that may be essential to
21the continued existence of the species, and which recommends
22management activities and other recommendations for recovery
23of the species.

24(b) This section shall become operative on January 1, 2017.

25

SEC. 6.  

Section 2074.8 of the Fish and Game Code is amended
26to read:

27

2074.8.  

begin deleteNothing in this end deletebegin insert(a)end insertbegin insertend insertbegin insertThis end insertarticlebegin delete imposesend deletebegin insert does not
28imposeend insert
any duty or obligation for, or otherwisebegin delete requiresend deletebegin insert requireend insert,
29the commission or the department to undertake independent studies
30or other assessments of any species when reviewing a petition and
31its attendant documents and comments.begin insert However, the department
32shall seek independent scientific peer review of the department’s
33status report. The director may approve an extension of time for
34completion of the status report if necessary for the purposes of
35obtaining independent peer review pursuant to Section 2074.6. end insert

begin insert

36(b) This section shall remain in effect only until January 1, 2017,
37and as of that date is repealed, unless a later enacted statute, that
38is enacted before January 1, 2017, deletes or extends that date.

end insert
39

SEC. 7.  

Section 2074.8 is added to the Fish and Game Code,
40to read:

P7    1

2074.8.  

(a) This article does not impose any duty or obligation
2for, or otherwise require, the commission or the department to
3undertake independent studies or other assessments of any species
4when reviewing a petition and its attendant documents and
5comments.

6(b) This section shall become operative on January 1, 2017.

7

SEC. 8.  

Section 2075.5 of the Fish and Game Code is amended
8to read:

9

2075.5.  

begin insert(a)end insertbegin insertend insert At the meeting scheduled pursuant to Section
102075, the commission shallbegin delete make one of the following findings:end delete
11begin insert hold a public hearing on the petition and shall receive information,
12written or otherwise, and oral testimony. After the conclusion of
13oral testimony from department staff, the petitioner, or any other
14persons, the commission may close the public hearing and the
15administrative record for the department’s decision pursuant to
16this section.end insert

begin insert

17(b) After the commission closes the public hearing the
18administrative record for the commission’s decision is closed and
19it shall not be reopened except as provided in subdivision (c). Once
20the public hearing is closed a person shall not submit further
21information to the department for consideration on that petition
22and the commission shall not accept any further information for
23consideration on that petition except as provided in subdivision
24(c).

end insert
begin insert

25(c) The administrative record for the commission’s decision
26pursuant to this section shall not be reopened once the department
27closes the public hearing unless one of the following occurs prior
28to the commission’s decision:

end insert
begin insert

29(1) There is a change in state or federal law or regulation that
30has a direct and significant impact on the commission’s
31determination as to whether the petitioned action is warranted.

end insert
begin insert

32(2) The commission determines that it requires further
33information to evaluate whether the petitioned action is warranted.
34If the commission makes that determination during its deliberation,
35the commission may request, on the record at the scheduled
36meeting or at a continued meeting, further information on any
37issue relevant to making its determination as to whether the
38petitioned action is warranted. Any request by the commission
39pursuant to this paragraph shall specify a date by which the
40information must be submitted to the commission and shall serve
P8    1to reopen the administrative record for the limited purpose of
2receiving further information relating to the issues specified by
3the commission in the request. Commission and department staff,
4the petitioner, or any other person may submit information in
5response to a request pursuant to this paragraph.

end insert
begin insert

6(d) The commission, in its discretion, may either close the public
7hearing and continue the meeting on the petition for the purpose
8of deliberation or continue both the public hearing and the meeting
9on the petition to a subsequent date which is no later than 90 days
10after the meeting scheduled pursuant to Section 2075, and subject
11to applicable notice and agenda requirements. If the commission
12closes the public hearing but continues the meeting for the purpose
13of deliberation, a person shall not submit, and the commission
14shall not receive, further information relating to the petition except
15as provided in subdivision (c).

end insert
begin insert

16(e) At the meeting scheduled pursuant to Section 2075, or at a
17continued meeting scheduled pursuant to subdivision (d), the
18commission shall make one of the following findings:

end insert

19(1) The petitioned action is not warranted, in which case the
20finding shall be entered in the public records of the commission
21and the petitioned species shall be removed from the list of
22candidate species maintained pursuant to Section 2074.2.

23(2) The petitioned action is warranted, in which case the
24commission shall publish a notice of that finding and a notice of
25proposed rulemaking pursuant to Section 11346.4 of the
26Government Codebegin insert,end insert to add the species to, or remove the species
27from, the list of endangered species or the list of threatened species.
28Further proceedings of the commission on the petitioned action
29shall be made in accordance with Chapter 3.5 (commencing with
30Section 11340) of Part 1 of Division 3 of Title 2 of the Government
31Code.

begin insert

32(f) This section shall remain in effect only until January 1, 2017,
33and as of that date is repealed, unless a later enacted statute, that
34is enacted before January 1, 2017, deletes or extends that date.

end insert
35

SEC. 9.  

Section 2075.5 is added to the Fish and Game Code,
36to read:

37

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
38the commission shall make one of the following findings:

39(1) The petitioned action is not warranted, in which case the
40finding shall be entered in the public records of the commission
P9    1and the petitioned species shall be removed from the list of
2candidate species maintained pursuant to Section 2074.2.

3(2) The petitioned action is warranted, in which case the
4commission shall publish a notice of that finding and a notice of
5proposed rulemaking pursuant to Section 11346.4 of the
6Government Code to add the species to, or remove the species
7from, the list of endangered species or the list of threatened species.
8Further proceedings of the commission on the petitioned action
9shall be made in accordance with Chapter 3.5 (commencing with
10Section 11340) of Part 1 of Division 3 of Title 2 of the Government
11Code.

12(b) This section shall become operative on January 1, 2017.

13

SEC. 10.  

Section 2087 of the Fish and Game Code is amended
14to read:

15

2087.  

(a) Accidental take of candidate, threatened, or
16endangered species resulting from acts that occur on a farm or a
17ranch in the course of otherwise lawful routine and ongoing
18agricultural activities is not prohibited by this chapter.

begin insert

19(b) For purposes of this section “accidental” means unintended,
20unforeseen, and injurious.

end insert
begin delete

21(b)

end delete

22begin insert(c)end insert This section shall remain in effect only until January 1,begin delete 2014end delete
23begin insert 2024end insert, and as of that date is repealed, unless a later enacted statute,
24that is enacted before January 1,begin delete 2014end deletebegin insert 2024end insert, deletes or extends
25that date.

26

SEC. 11.  

Section 3517 is added to the Fish and Game Code,
27to read:

28

3517.  

(a) The policies and regulations of the department and
29commission shall encourage the restoration and enhancement of
30upland nesting cover and associated waterfowl brood habitat on
31both public and private lands to support the production of resident
32waterfowl, upland game birds, and other birds.

33(b) Unless expressly authorized by law, no governmental entity
34shall prohibit or otherwise restrict the establishment of these
35habitats for the purpose of propagating waterfowl or other birds
36protected pursuant to this code without the concurrence of the
37department.



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