BILL NUMBER: SB 749 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 16, 2013
AMENDED IN SENATE APRIL 1, 2013
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, and to add Article 2.5
(commencing with Section 1758) to Chapter 7.5 of Division 2 of, the
Fish and Game Code, and to amend Sections 1725 and 1810 of the
Water 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. 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 nonprofit waterfowl and upland game bird
conservation groups the upland game bird advisory
committee .
(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 California Environmental
Quality Act act , 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 Environmental Quality
Endangered Species 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.
(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.
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.
(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.
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.
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
nonprofit waterfowl and upland game bird conservation groups
the upland game bird advisory committee .
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
unintended, unforeseen, and injurious unintended or
unforeseen .
(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. (a) 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.
(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.
SEC. 13. Section 1725 of the Water Code
is amended to read:
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 which that 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. "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.
SEC. 14 . Section 1810 of the
Water Code is amended to read:
1810. Notwithstanding any other provision of
law, neither the state, nor
state or any regional or local public agency may
shall not deny a bona fide transferor of water
the use of a water conveyance facility which
that has unused capacity, for the period of time for which that
capacity is available, if fair compensation is paid for that use,
subject to all of 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) (1) 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.
(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.