Amended in Senate April 1, 2013

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,begin delete andend delete to add Sections 1745.1 and 3517 to,begin insert and to add Article 2.5 (commencing with Section 1758) to Chapter 7.5 of Division 2 of,end insert the Fish and Game Code, relating to fish and wildlife resources.

LEGISLATIVE COUNSEL’S DIGEST

SB 749, as amended, 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.begin insert Existing law states that it is the policy of the state to maintain sufficient populations of all species of wildlife and native plants and the habitat necessary to insure their continued existence at the optimum levels possible to insure, among other things, the policy to perpetuate native plants and all species of wildlife for their intrinsic and ecological values, as well as for their direct benefits to humanity.end insert

This bill would authorize the department to lease department-managed lands for agricultural activities, as specified. The bill wouldbegin delete requireend deletebegin insert provide thatend insert the moneys collected from those agricultural leasesbegin delete toend deletebegin insert mayend insert be used to support the maintenance and operations of department-managed lands frombegin delete whereend deletebegin insert whichend insert the moneys were originally collected.begin insert The bill would require the department to identify which department-managed lands the department will manage for the purpose of restoring and enhancing upland nesting cover and associated waterfowl brood habitat to support the production of resident waterfowl and upland game birds. The bill would also require the department, in the manner it deems appropriate, to annually solicit comment and recommendations regarding the management of these lands from nonprofit waterfowl and upland game bird conservation groups.end insert

(2) The California Endangered Species Actbegin delete (CESA)end delete 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. Underbegin delete CESAend deletebegin insert the California Environmental Quality Actend insert, 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) begin deleteCESA end deletebegin insertThe California Environmental Quality Act end insertalso 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 wouldbegin insert make a technical change to these provisions andend insert extend this exception to January 1,begin delete 2024, andend deletebegin insert 2020. The billend insert 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.

Thisbegin delete 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. Theend delete bill would prohibitbegin delete or otherwise restrict, unless expressly authorized by law,end deletebegin insert a state agency from prohibiting or otherwise restrictingend insert the establishment ofbegin delete these habitatsend deletebegin insert upland nesting cover and associated waterfowl brood habitatend insert for the purpose of propagating waterfowlbegin insert, upland game birds,end insert 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:

P3    1

SECTION 1.  

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

begin delete
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) 

end delete
8begin insert

begin insert1745.1.end insert  

end insert

begin insert(a)end insertbegin insertend insert Notwithstanding Section 1745, the leasing of
9department-managed lands for agricultural activitiesbegin delete, such as the
10cultivation of wildlife-friendly crops and grazing to enhance the
11value of habitat, shall be permitted where those activities are
12compatible with the department’s management plan for the area.end delete

13begin insert shall be consistent with the purpose for which the lands were
14acquired and compatible with the department’s approved
15management plan for the area, if available.end insert

begin delete

16(2) The

end delete

17begin insert(b)end insertbegin insertend insertbegin insertNotwithstanding subdivision (c) of Section 1348, theend insert moneys
18collected from agricultural leases entered into pursuant tobegin delete paragraph
19(1) shallend delete
begin insert subdivision (a) mayend insert be used to support the maintenance
20and operations of department-managed lands frombegin delete whereend deletebegin insert whichend insert
21 the moneys were originally collected.

22begin insert

begin insertSEC. end insertbegin insert2end insertbegin insert.end insert  

end insert

begin insertArticle 2.5 (commencing with Section 1758) is added
23to Chapter 7.5 of Division 2 of the end insert
begin insertFish and Game Codeend insertbegin insert, to read:end insert

begin insert

24 

25Article begin insert2.5.end insert  Bird Habitat Conservation
26

 

27

begin insert1758.end insert  

(a) The department shall identify which
28department-managed lands, within the meaning of paragraph (1)
29of subdivision (a) of Section 1745, the department will manage for
30the purpose of restoring and enhancing upland nesting cover and
31associated waterfowl brood habitat to support the production of
32resident waterfowl and upland game birds.

33(b) For lands identified in subdivision (a), the department, in
34the manner it deems appropriate, shall annually solicit comment
35and recommendations regarding the management of these lands
P4    1from nonprofit waterfowl and upland game bird conservation
2groups.

end insert
3

begin deleteSEC. 2.end delete
4begin insertSEC. 3.end insert  

Section 2074.2 of the Fish and Game Code is amended
5to read:

6

2074.2.  

(a) At the meeting scheduled pursuant to Section 2074,
7the commission shall hold a public hearing on the petition and
8shall receive information, written or otherwise, and oral testimony.
9After the conclusion of oral testimony from the commission and
10department staff, the petitioner, or any other persons, the
11commission may close the public hearing and administrative record
12for the commission’s decision pursuant to this section.

13(b) After the commission closes the public hearing, the
14administrative record for the commission’s decision is closed and
15it shall not be reopened except as provided in subdivision (c). Once
16the public hearing is closed, no person shall submit further
17information to the commission for consideration on that petition
18and the commission shall not accept any further information for
19consideration on that petition except as provided in subdivision
20(c).

21(c) The administrative record for the commission’s decision
22pursuant to this section shall not be reopened once the commission
23closes the public hearing unless one of the following occurs prior
24to the commission’s decision:

25(1) There is a change in state or federal law or regulation that
26has a direct and significant impact on the commission’s
27determination as to whether the petition provides sufficient
28information to indicate that the petitioned action may be warranted.

29(2) The commission determines that it requires further
30information to evaluate whether the petition provides sufficient
31information to indicate that the petitioned action may be warranted.
32If the commission makes that determination during its deliberation,
33the commission may request, on the record at the scheduled
34meeting or at a continued meeting, further information on any
35issue relevant to making its determination as to whether the petition
36provides sufficient information to indicate that the petitioned action
37may be warranted. Any request by the commission pursuant to
38this paragraph shall specify a date by which the information must
39be submitted to the commission and shall serve to reopen the
40administrative record for the limited purpose of receiving further
P5    1information relating to the issues specified by the commission in
2the request. Commission and department staff, the petitioner, or
3any other person may submit information in response to a request
4pursuant to this paragraph.

5(d) In its discretion, the commission may either close the public
6hearing and continue the meeting on the petition for the purpose
7of deliberation or continue both the public hearing and the meeting
8on the petition to a subsequent date, which shall be no later than
990 days after the meeting scheduled pursuant to Section 2074, and
10subject to applicable notice and agenda requirements. If the
11commission closes the public hearing but continues the meeting
12for the purpose of deliberation, a person shall not submit, and the
13commission shall not receive, further information relating to the
14petition except as provided in subdivision (c).

15(e) At the meeting scheduled pursuant to Section 2074 or at a
16continued meeting scheduled pursuant to subdivision (d), the
17commission shall consider the petition, the department’s written
18report, written comments received, and oral testimony provided
19during the public hearing, and the commission shall make and
20enter in its record one of the following findings:

21(1) If the commission finds that the petition does not provide
22sufficient information to indicate that the petitioned action may
23be warranted, the commission shall publish a notice of finding that
24the petition is rejected, including the reasons why the petition is
25not sufficient.

26(2) If the commission finds that the petition provides sufficient
27information to indicate that the petitioned action may be warranted,
28the commission shall publish a notice of finding that the petition
29is accepted for consideration. If the accepted petition recommends
30the addition of a species to either the list of endangered species or
31the list of threatened species, the commission shall include in the
32notice that the petitioned species is a candidate species. The
33commission shall maintain a list of species which are candidate
34species.

35(f) The commission shall publish and distribute the findings
36relating to the petition pursuant to Section 2078.

37(g) This section shall remain in effect only until January 1, 2017,
38and as of that date is repealed, unless a later enacted statute, that
39is enacted before January 1, 2017, deletes or extends that date.

P6    1

begin deleteSEC. 3.end delete
2begin insertSEC. 4.end insert  

Section 2074.2 is added to the Fish and Game Code,
3to read:

4

2074.2.  

(a) At the scheduled meeting, the commission shall
5consider the petition, the department’s written report, and
6comments received, and the commission shall make and enter in
7its public record one of the following findings:

8(1) If the commission finds that the petition does not provide
9sufficient information to indicate that the petitioned action may
10be warranted, the commission shall publish a notice of finding that
11the petition is rejected, including the reasons why the petition is
12not sufficient.

13(2) If the commission finds that the petition provides sufficient
14information to indicate that the petitioned action may be warranted,
15the commission shall publish a notice of finding that the petition
16is accepted for consideration. If the accepted petition recommends
17the addition of a species to either the list of endangered species or
18the list of threatened species, the commission shall include in the
19notice that the petitioned species is a candidate species. The
20commission shall maintain a list of species which are candidate
21species.

22(b) The commission shall publish and distribute the findings
23relating to the petition pursuant to Section 2078.

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

25

begin deleteSEC. 4.end delete
26begin insertSEC. 5.end insert  

Section 2074.6 of the Fish and Game Code is amended
27to read:

28

2074.6.  

(a) The department shall promptly commence a review
29of the status of the species concerned in the petition. Within 12
30months of the date of publication of a notice of acceptance of a
31petition for consideration pursuant to paragraph (2) of subdivision
32(e) of Section 2074.2, the department shall produce and make
33publicly available on the department’s Internet Web site a written
34peer reviewed report, based upon the best scientific information
35available to the department, which indicates whether the petitioned
36action is warranted, which includes a preliminary identification of
37the habitat that may be essential to the continued existence of the
38species, and which recommends management activities and other
39recommendations for recovery of the species. The department shall
40amend the draft status review report as appropriate to incorporate
P7    1scientific information from the independent peer review. The
2revised report shall be posted on the department’s Internet Web
3site for a minimum of 30 days for public review prior to the hearing
4scheduled pursuant to Section 2075. The commission may grant
5an extension of up to six months if the director determines an
6extension is necessary to complete independent peer review of the
7report, and to provide a minimum of 30 days for public review of
8the peer reviewed report prior to the public hearing specified in
9Section 2075.

10(b) This section shall remain in effect only until January 1, 2017,
11and as of that date is repealed, unless a later enacted statute, that
12is enacted before January 1, 2017, deletes or extends that date.

13

begin deleteSEC. 5.end delete
14begin insertSEC. 6.end insert  

Section 2074.6 is added to the Fish and Game Code,
15to read:

16

2074.6.  

(a) The department shall promptly commence a review
17of the status of the species concerned in the petition. Within 12
18months of the date of publication of a notice of acceptance of a
19petition for consideration by the commission pursuant to paragraph
20(2) of subdivision (a) of Section 2074.2, the department shall
21provide a written report to the commission, based upon the best
22scientific information available to the department, which indicates
23whether the petitioned action is warranted, which includes a
24preliminary identification of the habitat that may be essential to
25the continued existence of the species, and which recommends
26management activities and other recommendations for recovery
27of the species.

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

29

begin deleteSEC. 6.end delete
30begin insertSEC. 7.end insert  

Section 2074.8 of the Fish and Game Code is amended
31to read:

32

2074.8.  

(a) This article does not impose any duty or obligation
33for, or otherwise require, the commission or the department to
34undertake independent studies or other assessments of any species
35when reviewing a petition and its attendant documents and
36comments. However, the department shall seek independent
37scientific peer review of the department’s status report. The director
38may approve an extension of time for completion of the status
39report if necessary for the purposes of obtaining independent peer
40review pursuant to Section 2074.6.

P8    1(b) This section shall remain in effect only until January 1, 2017,
2and as of that date is repealed, unless a later enacted statute, that
3is enacted before January 1, 2017, deletes or extends that date.

4

begin deleteSEC. 7.end delete
5begin insertSEC. 8.end insert  

Section 2074.8 is added to the Fish and Game Code,
6to read:

7

2074.8.  

(a) This article does not impose any duty or obligation
8for, or otherwise require, the commission or the department to
9undertake independent studies or other assessments of any species
10when reviewing a petition and its attendant documents and
11comments.

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

13

begin deleteSEC. 8.end delete
14begin insertSEC. 9.end insert  

Section 2075.5 of the Fish and Game Code is amended
15to read:

16

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
17the commission shall hold a public hearing on the petition and
18shall receive information, written or otherwise, and oral testimony.
19After the conclusion of oral testimony from department staff, the
20petitioner, or any other persons, the commission may close the
21public hearing and the administrative record for the department’s
22decision pursuant to this section.

23(b) After the commission closes the public hearing the
24administrative record for the commission’s decision is closed and
25it shall not be reopened except as provided in subdivision (c). Once
26the public hearing is closed a person shall not submit further
27information to the department for consideration on that petition
28and the commission shall not accept any further information for
29consideration on that petition except as provided in subdivision
30(c).

31(c) The administrative record for the commission’s decision
32pursuant to this section shall not be reopened once the department
33closes the public hearing unless one of the following occurs prior
34to the commission’s decision:

35(1) There is a change in state or federal law or regulation that
36has a direct and significant impact on the commission’s
37determination as to whether the petitioned action is warranted.

38(2) The commission determines that it requires further
39information to evaluate whether the petitioned action is warranted.
40If the commission makes that determination during its deliberation,
P9    1the commission may request, on the record at the scheduled
2meeting or at a continued meeting, further information on any
3issue relevant to making its determination as to whether the
4petitioned action is warranted. Any request by the commission
5pursuant to this paragraph shall specify a date by which the
6information must be submitted to the commission and shall serve
7to reopen the administrative record for the limited purpose of
8receiving further information relating to the issues specified by
9the commission in the request. Commission and department staff,
10the petitioner, or any other person may submit information in
11response to a request pursuant to this paragraph.

12(d) The commission, in its discretion, may either close the public
13hearing and continue the meeting on the petition for the purpose
14of deliberation or continue both the public hearing and the meeting
15on the petition to a subsequent date which is no later than 90 days
16after the meeting scheduled pursuant to Section 2075, and subject
17to applicable notice and agenda requirements. If the commission
18closes the public hearing but continues the meeting for the purpose
19of deliberation, a person shall not submit, and the commission
20shall not receive, further information relating to the petition except
21as provided in subdivision (c).

22(e) At the meeting scheduled pursuant to Section 2075, or at a
23continued meeting scheduled pursuant to subdivision (d), the
24commission shall make one of the following findings:

25(1) The petitioned action is not warranted, in which case the
26finding shall be entered in the public records of the commission
27and the petitioned species shall be removed from the list of
28candidate species maintained pursuant to Section 2074.2.

29(2) The petitioned action is warranted, in which case the
30commission shall publish a notice of that finding and a notice of
31proposed rulemaking pursuant to Section 11346.4 of the
32Government Code, to add the species to, or remove the species
33from, the list of endangered species or the list of threatened species.
34Further proceedings of the commission on the petitioned action
35shall be made in accordance with Chapter 3.5 (commencing with
36Section 11340) of Part 1 of Division 3 of Title 2 of the Government
37Code.

38(f) This section shall remain in effect only until January 1, 2017,
39and as of that date is repealed, unless a later enacted statute, that
40is enacted before January 1, 2017, deletes or extends that date.

P10   1

begin deleteSEC. 9.end delete
2begin insertSEC. 10.end insert  

Section 2075.5 is added to the Fish and Game Code,
3to read:

4

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
5the commission shall make one of the following findings:

6(1) The petitioned action is not warranted, in which case the
7finding shall be entered in the public records of the commission
8and the petitioned species shall be removed from the list of
9candidate species maintained pursuant to Section 2074.2.

10(2) The petitioned action is warranted, in which case the
11commission shall publish a notice of that finding and a notice of
12proposed rulemaking pursuant to Section 11346.4 of the
13Government Code to add the species to, or remove the species
14from, the list of endangered species or the list of threatened species.
15Further proceedings of the commission on the petitioned action
16shall be made in accordance with Chapter 3.5 (commencing with
17Section 11340) of Part 1 of Division 3 of Title 2 of the Government
18Code.

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

20

begin deleteSEC. 10.end delete
21begin insertSEC. 11.end insert  

Section 2087 of the Fish and Game Code is amended
22to read:

23

2087.  

(a) Accidental take of candidate, threatened, or
24endangered species resulting frombegin delete acts that occurend deletebegin insert an act that occursend insert
25 on a farm or a ranch in the course of otherwise lawful routine and
26ongoing agricultural activities is not prohibited by this chapter.

27(b) For purposes of this section “accidental” means unintended,
28unforeseen, and injurious.

29(c) This section shall remain in effect only until January 1, begin delete 2024end delete
30begin insert 2020end insert, and as of that date is repealed, unless a later enacted statute,
31that is enacted before January 1,begin delete 2024end deletebegin insert 2020end insert, deletes or extends
32that date.

33

begin deleteSEC. 11.end delete
34begin insertSEC. 12.end insert  

Section 3517 is added to the Fish and Game Code,
35to read:

begin delete
36

3517.  

(a) The policies and regulations of the department and
37commission shall encourage the restoration and enhancement of
38upland nesting cover and associated waterfowl brood habitat on
39both public and private lands to support the production of resident
40waterfowl, upland game birds, and other birds.

P11   1(b) Unless expressly authorized by law, no governmental entity

end delete
2begin insert

begin insert3517.end insert  

end insert

begin insertA state agency end insertshallbegin insert notend insert prohibit or otherwise restrict the
3establishment ofbegin delete these habitatsend deletebegin insert upland nesting cover and associated
4waterfowl brood habitatend insert
for the purpose of propagating waterfowlbegin insert,
5upland game birds,end insert
or other birds protected pursuant to this code
6without the concurrence of the department.



O

    98