Amended in Senate April 16, 2013

Amended in Senate April 1, 2013

Senate Bill No. 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, to add Sections 1745.1 and 3517 to, begin delete and end delete to add Article 2.5 (commencing with Section 1758) to Chapter 7.5 of Division 2 of, the Fish and Game Code, begin insert and to amend Sections 1725 and 1810 of the Water Code, end insert 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. 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.

This bill would authorize the department to lease department-managed lands for agricultural activities, as specified. The bill would provide that the moneys collected from those agricultural leases may be used to support the maintenance and operations of department-managed lands from which the moneys were originally collected. 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 begin delete nonprofit waterfowl and upland game bird conservation groups end delete begin insert the upland game bird advisory committee end insert .

(2) The California Endangered Species Act 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 the begin delete California Environmental Quality Act end delete begin insert act end 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) The California begin delete Environmental Quality end delete begin insert Endangered Species end insert Act 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 make a technical change to these provisions and extend this exception to January 1, 2020. The bill 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 prohibit a state agency from prohibiting or otherwise restricting the establishment of upland nesting cover and associated waterfowl brood habitat for the purpose of propagating waterfowl, upland game birds, or other protected birds without the concurrence of the department.

begin insert

(5) Existing law prohibits, notwithstanding any other law, the state or any regional or local public agency from denying a bona fide transferor of water the use of a water conveyance facility that has unused capacity, for the period of time for which that capacity is available, if fair compensation is paid for that use, and, subject to specified conditions, the use of a water conveyance facility is to be made without injuring any legal user of water and without unreasonably affecting fish, wildlife, or other instream beneficial uses and without unreasonably affecting the overall economy or the environment of the county from which the water is being transferred.

end insert begin insert

This bill would, unless expressly authorized by law and notwithstanding specified provisions of statutory law, prohibit a state agency from penalizing a landowner or imposing conditions on a water transfer because of evapotranspiration by vegetation that grows naturally and without irrigation on land fallowed pursuant to a water transfer.

end insert begin insert

(6) Existing law authorizes a permittee or licensee to temporarily change the point of diversion, place of use, or purpose of use due to a transfer or exchange of water or water rights if the transfer would only involve the amount of water that would have been consumptively used or stored by the permittee or licensee in the absence of the proposed temporary change, would not injure any legal user of the water, and would not unreasonably affect fish, wildlife, or other instream beneficial uses.

end insert begin insert

This bill would, for these purposes, exclude from the definition of “consumptively used” evapotranspiration by vegetation that grows naturally and without irrigation on land fallowed pursuant to the transfer or exchange of water or water rights.

end insert

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

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

SECTION 1.  

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

1745.1.  

(a) Notwithstanding Section 1745, the leasing of
department-managed lands for agricultural activities shall be
consistent with the purpose for which the lands were acquired and
compatible with the department’s approved management plan for
the area, if available.

(b) Notwithstanding subdivision (c) of Section 1348, the moneys
collected from agricultural leases entered into pursuant to
subdivision (a) may be used to support the maintenance and
operations of department-managed lands from which the moneys
were originally collected.

SEC. 2.  

Article 2.5 (commencing with Section 1758) is added
to Chapter 7.5 of Division 2 of the Fish and Game Code, to read:

 

Article 2.5.  Bird Habitat Conservation

 

1758.  

(a) The department shall identify which
department-managed lands, within the meaning of paragraph (1)
of subdivision (a) of Section 1745, 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.

(b) For lands identified in subdivision (a), the department, in
the manner it deems appropriate, shall annually solicit comment
and recommendations regarding the management of these lands
from begin delete nonprofit waterfowl and upland game bird conservation
groups end delete begin insert the upland game bird advisory committee end insert .

SEC. 3.  

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

2074.2.  

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

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

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

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

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

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

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

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

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

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

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

SEC. 4.  

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

2074.2.  

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

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

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

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

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

SEC. 5.  

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

2074.6.  

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

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

SEC. 6.  

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

2074.6.  

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

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

SEC. 7.  

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

2074.8.  

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

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

SEC. 8.  

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

2074.8.  

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

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

SEC. 9.  

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

2075.5.  

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

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

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

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

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

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

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

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

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

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

SEC. 10.  

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

2075.5.  

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

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

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

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

SEC. 11.  

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

2087.  

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

(b) For purposes of this section “accidental” means begin delete unintended,
unforeseen, and injurious end delete begin insert unintended or unforeseen end insert .

(c) This section shall remain in effect only until January 1, 2020,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2020, deletes or extends that date.

SEC. 12.  

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

3517.  

begin insert (a) end insert begin insert   end insert A state agency shall not prohibit or otherwise restrict
the

establishment of upland nesting cover and associated waterfowl
brood habitat for the purpose of propagating waterfowl, upland
game birds, or other birds protected pursuant to this code without
the concurrence of the department.

begin insert

(b) Unless expressly authorized by law, and notwithstanding
paragraph (1) of subdivision (d) of Section 1810 of the Water
Code, a state agency shall not penalize a landowner or impose
conditions on a water transfer because of evapotranspiration by
vegetation that grows naturally and without irrigation on land
fallowed pursuant to a water transfer.

end insert

begin insert

begin insert SEC. 13. end insert   

end insert

begin insert Section 1725 of the end insert begin insert Water Code end insert begin insert is amended to read: end insert

1725.  

A permittee or licensee may temporarily change the point
of diversion, place of use, or purpose of use due to a transfer or
exchange of water or water rights if the transfer would only involve
the amount of water that would have been consumptively used or
stored by the permittee or licensee in the absence of the proposed
temporary change, would not injure any legal user of the water,
and would not unreasonably affect fish, wildlife, or other instream
beneficial uses. For purposes of this article, “consumptively used”
means the amount of water begin delete which end delete begin insert that end insert has been consumed through
use by evapotranspiration, has percolated underground, or has been
otherwise removed from use in the downstream water supply as a
result of direct diversion. begin insert “Consumptively used” does not include
evapotranspiration by vegetation that grows naturally and without
irrigation on land fallowed pursuant to the transfer or exchange
of water or water rights. end insert

begin insert

begin insert SEC. 14 end insert begin insert . end insert   

end insert

begin insert Section 1810 of the end insert begin insert Water Code end insert begin insert is amended to read: end insert

1810.  

Notwithstanding any other begin delete provision of end delete law, begin delete neither end delete the
begin delete state, nor end delete begin insert state or end insert any regional or local public agency begin delete may end delete begin insert shall
not end insert deny a bona fide transferor of water the use of a water
conveyance facility begin delete which end delete begin insert that end insert has unused capacity, for the period
of time for which that capacity is available, if fair compensation
is paid for that use, subject to begin insert end insert begin insert all of end insert the following:

(a) Any person or public agency that has a long-term water
service contract with or the right to receive water from the owner
of the conveyance facility shall have the right to use any unused
capacity prior to any bona fide transferor.

(b) The commingling of transferred water does not result in a
diminution of the beneficial uses or quality of the water in the
facility, except that the transferor may, at the transferor’s own
expense, provide for treatment to prevent the diminution, and the
transferred water is of substantially the same quality as the water
in the facility.

(c) Any person or public agency that has a water service contract
with or the right to receive water from the owner of the conveyance
facility who has an emergency need may utilize the unused capacity
that was made available pursuant to this section for the duration
of the emergency.

(d)  begin insert (1) end insert begin insert   end insert This use of a water conveyance facility is to be made
without injuring any legal user of water and without unreasonably
affecting fish, wildlife, or other instream beneficial uses and
without unreasonably affecting the overall economy or the
environment of the county from which the water is being
transferred.

begin insert

(2) Notwithstanding paragraph (1), and unless expressly
authorized by law, a state agency shall not penalize a landowner
or impose conditions on a water transfer because of
evapotranspiration by vegetation that grows naturally and without
irrigation on land fallowed pursuant to a water transfer.

end insert