Amended in Assembly June 25, 2013

Amended in Senate April 16, 2013

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, to add Sections 1745.1 and 3517 to, to add Article 2.5 (commencing with Section 1758) to Chapter 7.5 of Division 2 of, the Fish and Game Code, and tobegin delete amend Sections 1725 and 1810 ofend deletebegin insert add Section 1018 toend insert 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 wouldbegin delete provide thatend deletebegin insert authorizeend insert the moneys collected from those agricultural leasesbegin delete mayend deletebegin insert toend insert be used to support the maintenance and operations of department-managed landsbegin delete from which the moneys were originally collectedend delete. The bill would require the department to identifybegin delete which department-managedend deletebegin insert, as specified, and maintainend insert landsbegin delete the department will manageend delete for the purpose of restoringbegin delete andend deletebegin insert orend insert 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 solicitbegin delete commentend deletebegin insert commentsend insert and recommendationsbegin delete regarding the management of these landsend delete from 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 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 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 prohibitingbegin insert, conditioning, penalizing,end insert or otherwise restricting the establishment of upland nesting coverbegin delete andend deletebegin insert orend insert associated waterfowl brood habitat for the purpose of propagating waterfowl, upland game birds, or other protected birds without the concurrence of the department.

begin delete

(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 delete
begin delete

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 delete
begin delete

(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 delete
begin delete

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 delete
begin insert

(5) Existing law establishes various state water policies, including the policy that the use of water for domestic purposes is the highest use of water and the use of water for irrigation is the next highest use of water.

end insert
begin insert

This bill would declare it is the policy of the state that when agricultural lands are being idled in order to provide water for transfer, the growth of nonirrigated cover crops or natural vegetation for waterfowl, upland game bird, and other wildlife habitat, carbon sequestration, and air quality benefits is required to be encouraged on those lands, as specified.

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:

P4    1

SECTION 1.  

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

3

1745.1.  

(a) Notwithstandingbegin delete Section 1745end deletebegin insert any other provision
4of this codeend insert
, thebegin delete leasing ofend deletebegin insert department may lease end insert
5 department-managed lands for agricultural activitiesbegin delete shall beend deletebegin insert,
6including, but not limited to, grazing, where end insert
consistent with the
7purpose for which the lands were acquired and compatible with
8the department’s approved management plan for the area, if
9available.

10(b) Notwithstanding subdivision (c) of Section 1348, the moneys
11collected from agricultural leases entered into pursuant to
12subdivision (a) may be used to support the maintenance and
13operations of department-managedbegin delete lands from which the moneys
14were originally collected.end delete
begin insert lands. The department may deposit those
15moneys in the Wildlife Restoration Fund or the Fish and Game
16Preservation Fund.end insert

17

SEC. 2.  

Article 2.5 (commencing with Section 1758) is added
18to Chapter 7.5 of Division 2 of the Fish and Game Code, to read:

19 

20Article 2.5.  Bird Habitat Conservation
21

 

22

1758.  

(a) begin deleteThe department shall identify which
23department-managed lands, within the meaning of paragraph (1)
24of subdivision (a) of Section 1745, the department will manage end delete
begin insertIn
25the annual work plans for the department’s wildlife management
26areas, the department shall identify those lands, including a
27description of proposed habitat management areas, which it shall
28maintain end insert
for the purpose of restoringbegin delete andend deletebegin insert orend insert enhancing upland
29nesting cover and associated waterfowl brood habitat to support
30the production of resident waterfowl and upland game birds.

31(b) For landsbegin insert and proposed habitat management activitiesend insert
32 identifiedbegin insert and describedend insert in subdivision (a), the department, in the
33manner it deems appropriate, shall annually solicitbegin delete commentend delete
34begin insert comments end insert and recommendations begin deleteregarding the management of
35these landsend delete
from the upland game bird advisory committee
36begin insert described in subdivision (e) of Section 3684end insert.

37

SEC. 3.  

Section 2074.2 of the Fish and Game Code is amended
38to read:

P5    1

2074.2.  

(a) At 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.

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).

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:

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.

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
33this paragraph shall specify a date by which the information must
34be submitted 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.

P6    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).

11(e) At the meeting scheduled pursuant to Section 2074 or at a
12continued meeting scheduled pursuant to subdivision (d), the
13commission shall consider the petition, the department’s written
14report, written comments received, and oral testimony provided
15during the public hearing, and the commission shall make and
16enter in its record one of the following findings:

17(1) If the commission finds that the petition does not provide
18sufficient information to indicate that the petitioned action may
19be warranted, the commission shall publish a notice of finding that
20the petition is rejected, including the reasons why the petition is
21not sufficient.

22(2) If the commission finds that the petition provides sufficient
23information to indicate that the petitioned action may be warranted,
24the commission shall publish a notice of finding that the petition
25is accepted for consideration. If the accepted petition recommends
26the addition of a species to either the list of endangered species or
27the list of threatened species, the commission shall include in the
28notice that the petitioned species is a candidate species. The
29commission shall maintain a list of species which are candidate
30species.

31(f) The commission shall publish and distribute the findings
32relating to the petition pursuant to Section 2078.

33(g) This section shall remain in effect only until January 1, 2017,
34and as of that date is repealed, unless a later enacted statute, that
35is enacted before January 1, 2017, deletes or extends that date.

36

SEC. 4.  

Section 2074.2 is added to the Fish and Game Code,
37to read:

38

2074.2.  

(a) At the scheduled meeting, the commission shall
39consider the petition, the department’s written report, and
P7    1comments received, and the commission shall make and enter in
2its public record one of the following findings:

3(1) If the commission finds that the petition does not provide
4sufficient information to indicate that the petitioned action may
5be warranted, the commission shall publish a notice of finding that
6the petition is rejected, including the reasons why the petition is
7not sufficient.

8(2) If the commission finds that the petition provides sufficient
9information to indicate that the petitioned action may be warranted,
10the commission shall publish a notice of finding that the petition
11is accepted for consideration. If the accepted petition recommends
12the addition of a species to either the list of endangered species or
13the list of threatened species, the commission shall include in the
14notice that the petitioned species is a candidate species. The
15commission shall maintain a list of species which are candidate
16species.

17(b) The commission shall publish and distribute the findings
18relating to the petition pursuant to Section 2078.

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

20

SEC. 5.  

Section 2074.6 of the Fish and Game Code is amended
21to read:

22

2074.6.  

(a) The department shall promptly commence a review
23of the status of the species concerned in the petition. Within 12
24months of the date of publication of a notice of acceptance of a
25petition for consideration pursuant to paragraph (2) of subdivision
26(e) of Section 2074.2, the department shall produce and make
27publicly available on the department’s Internet Web site a written
28peer reviewed report, based upon the best scientific information
29available to the department, which indicates whether the petitioned
30action is warranted, which includes a preliminary identification of
31the habitat that may be essential to the continued existence of the
32species, and which recommends management activities and other
33recommendations for recovery of the species. The department shall
34amend the draft status review report as appropriate to incorporate
35scientific information from the independent peer review. The
36revised report shall be posted on the department’s Internet Web
37site for a minimum of 30 days for public review prior to the hearing
38scheduled pursuant to Section 2075. The commission may grant
39an extension of up to six months if the director determines an
40extension is necessary to complete independent peer review of the
P8    1report, and to provide a minimum of 30 days for public review of
2the peer reviewed report prior to the public hearing specified in
3Section 2075.

4(b) This section shall remain in effect only until January 1, 2017,
5and as of that date is repealed, unless a later enacted statute, that
6is enacted before January 1, 2017, deletes or extends that date.

7

SEC. 6.  

Section 2074.6 is added to the Fish and Game Code,
8to read:

9

2074.6.  

(a) The department shall promptly commence a review
10of the status of the species concerned in the petition. Within 12
11months of the date of publication of a notice of acceptance of a
12petition for consideration by the commission pursuant to paragraph
13(2) of subdivision (a) of Section 2074.2, the department shall
14provide a written report to the commission, based upon the best
15scientific information available to the department, which indicates
16whether the petitioned action is warranted, which includes a
17preliminary identification of the habitat that may be essential to
18the continued existence of the species, and which recommends
19management activities and other recommendations for recovery
20of the species.

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

22

SEC. 7.  

Section 2074.8 of the Fish and Game Code is amended
23to read:

24

2074.8.  

(a) This article does not impose any duty or obligation
25for, or otherwise require, the commission or the department to
26undertake independent studies or other assessments of any species
27when reviewing a petition and its attendant documents and
28comments. However, the department shall seek independent
29scientific peer review of the department’s status report. The director
30may approve an extension of time for completion of the status
31report if necessary for the purposes of obtaining independent peer
32review pursuant to Section 2074.6.

33(b) This section shall remain in effect only until January 1, 2017,
34and as of that date is repealed, unless a later enacted statute, that
35is enacted before January 1, 2017, deletes or extends that date.

36

SEC. 8.  

Section 2074.8 is added to the Fish and Game Code,
37to read:

38

2074.8.  

(a) This article does not impose any duty or obligation
39for, or otherwise require, the commission or the department to
40undertake independent studies or other assessments of any species
P9    1when reviewing a petition and its attendant documents and
2comments.

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

4

SEC. 9.  

Section 2075.5 of the Fish and Game Code is amended
5to read:

6

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
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 department staff, the
10petitioner, or any other persons, the commission may close the
11public hearing and the administrative record for the department’s
12decision 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 a person shall not submit further
17information to the department for consideration on that petition
18 and 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 department
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 petitioned action is warranted.

28(2) The commission determines that it requires further
29information to evaluate whether the petitioned action is warranted.
30If the commission makes that determination during its deliberation,
31the commission may request, on the record at the scheduled
32meeting or at a continued meeting, further information on any
33issue relevant to making its determination as to whether the
34petitioned action is warranted. Any request by the commission
35pursuant to this paragraph shall specify a date by which the
36information must be submitted to the commission and shall serve
37to reopen the administrative record for the limited purpose of
38receiving further information relating to the issues specified by
39the commission in the request. Commission and department staff,
P10   1the petitioner, or any other person may submit information in
2response to a request pursuant to this paragraph.

3(d) The commission, in its discretion, may either close the public
4hearing and continue the meeting on the petition for the purpose
5of deliberation or continue both the public hearing and the meeting
6on the petition to a subsequent date which is no later than 90 days
7after the meeting scheduled pursuant to Section 2075, and subject
8to applicable notice and agenda requirements. If the commission
9closes the public hearing but continues the meeting for the purpose
10of deliberation, a person shall not submit, and the commission
11shall not receive, further information relating to the petition except
12as provided in subdivision (c).

13(e) At the meeting scheduled pursuant to Section 2075, or at a
14continued meeting scheduled pursuant to subdivision (d), the
15commission shall make one of the following findings:

16(1) The petitioned action is not warranted, in which case the
17finding shall be entered in the public records of the commission
18and the petitioned species shall be removed from the list of
19candidate species maintained pursuant to Section 2074.2.

20(2) The petitioned action is warranted, in which case the
21commission shall publish a notice of that finding and a notice of
22proposed rulemaking pursuant to Section 11346.4 of the
23Government Code, to add the species to, or remove the species
24from, the list of endangered species or the list of threatened species.
25Further proceedings of the commission on the petitioned action
26shall be made in accordance with Chapter 3.5 (commencing with
27Section 11340) of Part 1 of Division 3 of Title 2 of the Government
28Code.

29(f) This section shall remain in effect only until January 1, 2017,
30and as of that date is repealed, unless a later enacted statute, that
31is enacted before January 1, 2017, deletes or extends that date.

32

SEC. 10.  

Section 2075.5 is added to the Fish and Game Code,
33to read:

34

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
35the commission shall make one of the following findings:

36(1) The petitioned action is not warranted, in which case the
37finding shall be entered in the public records of the commission
38and the petitioned species shall be removed from the list of
39candidate species maintained pursuant to Section 2074.2.

P11   1(2) The petitioned action is warranted, in which case the
2commission shall publish a notice of that finding and a notice of
3proposed rulemaking pursuant to Section 11346.4 of the
4Government Code to add the species to, or remove the species
5from, the list of endangered species or the list of threatened species.
6Further proceedings of the commission on the petitioned action
7shall be made in accordance with Chapter 3.5 (commencing with
8Section 11340) of Part 1 of Division 3 of Title 2 of the Government
9Code.

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

11

SEC. 11.  

Section 2087 of the Fish and Game Code is amended
12to read:

13

2087.  

(a) Accidental take of candidate, threatened, or
14endangered species resulting from an act that occurs on a farm or
15a ranch in the course of otherwise lawful routine and ongoing
16agricultural activities is not prohibited by this chapter.

17(b) For purposes of thisbegin delete sectionend deletebegin insert section,end insert “accidental” means
18unintended or unforeseen.

19(c) This section shall remain in effect only until January 1, 2020,
20and as of that date is repealed, unless a later enacted statute, that
21is enacted before January 1, 2020, deletes or extends that date.

22

SEC. 12.  

Section 3517 is added to the Fish and Game Code,
23to read:

24

3517.  

(a)begin insertend insertbegin insertIt is the policy of the state that when agricultural
25lands are being idled in order to provide water for transfer, the
26growth of nonirrigated cover crops or natural vegetation for
27waterfowl, upland game bird, and other wildlife habitat, carbon
28sequestration, and air quality benefits shall be encouraged on
29those lands if the cover vegetation does not cause more than a de
30minimis or insignificant change in the amount of water being
31transferred.end insert

32begin insert(b)end insert A state agency shall not prohibitbegin insert, condition, penalize,end insert or
33otherwise restrict the establishment of upland nesting coverbegin delete andend delete
34begin insert orend insert associated waterfowl brood habitat for the purpose of
35propagating waterfowl, upland game birds, or other birds protected
36pursuant to this code without the concurrence of the department.

begin delete

37(b) Unless expressly authorized by law, and notwithstanding
38paragraph (1) of subdivision (d) of Section 1810 of the Water
39Code, a state agency shall not penalize a landowner or impose
40conditions on a water transfer because of evapotranspiration by
P12   1vegetation that grows naturally and without irrigation on land
2fallowed pursuant to a water transfer.

end delete
3begin insert

begin insertSEC. 13.end insert  

end insert

begin insertSection 1018 is added to the end insertbegin insertWater Codeend insertbegin insert, to read:end insert

begin insert
4

begin insert1018.end insert  

It is the policy of the state that when agricultural lands
5are being idled in order to provide water for transfer pursuant to
6this division, the growth of nonirrigated cover crops or natural
7vegetation for waterfowl, upland game bird, and other wildlife
8habitat, carbon sequestration, and air quality benefits shall be
9encouraged on those lands if the cover vegetation does not cause
10more than a de minimis or insignificant change in the amount of
11water being transferred.

end insert
begin delete
12

SEC. 13.  

Section 1725 of the Water Code is amended to read:

13

1725.  

A permittee or licensee may temporarily change the point
14of diversion, place of use, or purpose of use due to a transfer or
15exchange of water or water rights if the transfer would only involve
16the amount of water that would have been consumptively used or
17stored by the permittee or licensee in the absence of the proposed
18temporary change, would not injure any legal user of the water,
19and would not unreasonably affect fish, wildlife, or other instream
20beneficial uses. For purposes of this article, “consumptively used”
21means the amount of water that has been consumed through use
22by evapotranspiration, has percolated underground, or has been
23otherwise removed from use in the downstream water supply as a
24result of direct diversion. “Consumptively used” does not include
25evapotranspiration by vegetation that grows naturally and without
26irrigation on land fallowed pursuant to the transfer or exchange of
27water or water rights.

28

SEC. 14.  

Section 1810 of the Water Code is amended to read:

29

1810.  

Notwithstanding any other law, the state or any regional
30or local public agency shall not deny a bona fide transferor of water
31the use of a water conveyance facility that has unused capacity,
32for the period of time for which that capacity is available, if fair
33compensation is paid for that use, subject to all of the following:

34(a) Any person or public agency that has a long-term water
35service contract with or the right to receive water from the owner
36of the conveyance facility shall have the right to use any unused
37capacity prior to any bona fide transferor.

38(b) The commingling of transferred water does not result in a
39diminution of the beneficial uses or quality of the water in the
40facility, except that the transferor may, at the transferor’s own
P13   1expense, provide for treatment to prevent the diminution, and the
2transferred water is of substantially the same quality as the water
3in the facility.

4(c) Any person or public agency that has a water service contract
5with or the right to receive water from the owner of the conveyance
6facility who has an emergency need may utilize the unused capacity
7that was made available pursuant to this section for the duration
8of the emergency.

9(d) (1) This use of a water conveyance facility is to be made
10without injuring any legal user of water and without unreasonably
11affecting fish, wildlife, or other instream beneficial uses and
12without unreasonably affecting the overall economy or the
13environment of the county from which the water is being
14transferred.

15(2) Notwithstanding paragraph (1), and unless expressly
16authorized by law, a state agency shall not penalize a landowner
17or impose conditions on a water transfer because of
18evapotranspiration by vegetation that grows naturally and without
19irrigation on land fallowed pursuant to a water transfer.

end delete


O

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