Amended in Assembly August 12, 2013

Amended in Assembly July 3, 2013

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 addbegin delete Sectionsend deletebegin insert Sectionend insert 1745.1begin delete and 3517end delete 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 tobegin insert amend Section 482 of, and toend insert add Section 1018begin delete toend deletebegin insert to,end 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.

begin insert

The California Constitution establishes the Fish and Game Commission and provides for the delegation to the commission of powers relating to the protection and propagation of fish and game, including the conservation and enhancement of bird habitat.

end insert

This bill would authorize the department to lease department-managed lands for agricultural activities, as specified. The bill would authorize, upon appropriation by the Legislature, the moneys collected from those agricultural leases to be used to support the management, maintenance, restoration, and operations of department-managed lands.begin delete The bill would require the department to identify, as specified, and maintain lands for the purpose of restoring or 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 comments and recommendations from the upland game bird advisory committee.end deletebegin insert The bill would require the department to annually provide an opportunity for licensed hunters to comment and make recommendations on the public hunting programs, including anticipated habitat conditions in the hunting areas on Type A and Type B Wildlife Areas, as defined under the commission’s regulations, through public meetings or other means as the department deems appropriate. In complying with these provisions, the bill would authorize the department to hold regional meetings on its hunting programs for several different wildlife areas.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 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.

begin delete

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

end delete
begin delete

This bill would prohibit a state agency from prohibiting, conditioning, penalizing, or otherwise restricting the establishment of upland nesting cover or associated waterfowl brood habitat for the purpose of propagating waterfowl, upland game birds, or other protected birds without the concurrence of the department.

end delete
begin delete

(5)

end delete

begin insert(4)end insert Existing lawbegin delete 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 waterend deletebegin insert regulates water transfers and, among other things, allows 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 usesend insert.

This billbegin delete would declare it is the policy of the state that,end deletebegin insert would,end insert when agricultural lands are being idled in order to provide water forbegin delete transfer, the growth ofend deletebegin insert transfer and an amount of water is determined to be made available by that idling, require landowners to be encouraged to cultivate or retainend insert nonirrigated cover crops or natural vegetationbegin delete forend deletebegin insert to provideend insert waterfowl, upland game bird, and other wildlife habitat,begin delete carbon sequestration, and air quality benefits is required to be encouraged on those lands,end delete as specified.

begin insert

(5) Existing law requires the Department of Water Resources to prepare a water transfer guide which is required to include specified information.

end insert
begin insert

This bill would revise the contents of the water transfer guide to include fish and wildlife issues related to the transfer of water in preparing or revising the water transfer guide.

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) Notwithstanding any other provision of this code,
4the department may lease department-managed lands for
5agricultural activities, including, but not limited to, grazing, where
6consistent with the purpose for which the lands were acquired and
7compatible with the department’s approved management plan for
8the area, if available.

9(b) The moneys collected from agricultural leases entered into
10pursuant to subdivision (a) shall be deposited by the department
11into the Wildlife Restoration Fund and, upon appropriation by the
12Legislature, may be used to support the management, maintenance,
13restoration, and operations of department-managed lands.

14

SEC. 2.  

Article 2.5 (commencing with Section 1758) is added
15to Chapter 7.5 of Division 2 of the Fish and Game Code, to read:

16 

17Article 2.5.  Bird Habitat Conservation
18

 

begin delete
19

1758.  

(a) In the annual work plans for the department’s wildlife
20management areas, the department shall identify those lands,
21including a description of proposed habitat management areas,
22which it shall maintain for the purpose of restoring or enhancing
23upland nesting cover and associated waterfowl brood habitat to
24support the production of resident waterfowl and upland game
25birds.

26(b) For lands and proposed habitat management activities
27identified and described in subdivision (a), the department, in the
28manner it deems appropriate, shall annually solicit comments and
29recommendations from the upland game bird advisory committee
30 described in subdivision (e) of Section 3684.

end delete
31begin insert

begin insert1758.end insert  

end insert
begin insert

The department shall annually provide an opportunity
32for licensed hunters to comment and make recommendations on
33the public hunting programs, including anticipated habitat
34conditions in the hunting areas on Type A and Type B Wildlife
35Areas, as defined under the commission’s regulations, through
36public meetings or other means as the department deems
37appropriate. In complying with this section, the department may
P5    1hold regional meetings on its hunting programs for several
2different wildlife areas.

end insert
3

SEC. 3.  

Section 2074.2 of the Fish and Game Code is amended
4to read:

5

2074.2.  

(a) At the meeting scheduled pursuant to Section 2074,
6the commission shall hold a public hearing on the petition and
7shall receive information, written or otherwise, and oral testimony.
8After the conclusion of oral testimony from the commission and
9department staff, the petitioner, or any other persons, the
10commission may close the public hearing and administrative record
11for the commission’s decision pursuant to this section.

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

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

24(1) There is a change in state or federal law or regulation that
25has a direct and significant impact on the commission’s
26determination as to whether the petition provides sufficient
27information to indicate that the petitioned action may be warranted.

28(2) The commission determines that it requires further
29information to evaluate whether the petition provides sufficient
30information to indicate that the petitioned action may be warranted.
31If the commission makes that determination during its deliberation,
32the commission may request, on the record at the scheduled
33meeting or at a continued meeting, further information on any
34issue relevant to making its determination as to whether the petition
35provides sufficient information to indicate that the petitioned action
36may be warranted. Any request by the commission pursuant to
37this paragraph shall specify a date by which the information must
38be submitted to the commission and shall serve to reopen the
39administrative record for the limited purpose of receiving further
40information relating to the issues specified by the commission in
P6    1the request. Commission and department staff, the petitioner, or
2any other person may submit information in response to a request
3pursuant to this paragraph.

4(d) In its discretion, the commission may either close the public
5hearing and continue the meeting on the petition for the purpose
6of deliberation or continue both the public hearing and the meeting
7on the petition to a subsequent date, which shall be no later than
890 days after the meeting scheduled pursuant to Section 2074, and
9subject to applicable notice and agenda requirements. If the
10commission closes the public hearing but continues the meeting
11for the purpose of deliberation, a person shall not submit, and the
12commission shall not receive, further information relating to the
13petition except as provided in subdivision (c).

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

20(1) If the commission finds that the petition does not provide
21sufficient information to indicate that the petitioned action may
22be warranted, the commission shall publish a notice of finding that
23the petition is rejected, including the reasons why the petition is
24not sufficient.

25(2) If the commission finds that the petition provides sufficient
26information to indicate that the petitioned action may be warranted,
27the commission shall publish a notice of finding that the petition
28is accepted for consideration. If the accepted petition recommends
29the addition of a species to either the list of endangered species or
30the list of threatened species, the commission shall include in the
31notice that the petitioned species is a candidate species. The
32commission shall maintain a list of species which are candidate
33species.

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

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

39

SEC. 4.  

Section 2074.2 is added to the Fish and Game Code,
40to read:

P7    1

2074.2.  

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

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

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

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

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

22

SEC. 5.  

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

24

2074.6.  

(a) The department shall promptly commence a review
25of the status of the species concerned in the petition. Within 12
26months of the date of publication of a notice of acceptance of a
27petition for consideration pursuant to paragraph (2) of subdivision
28(e) of Section 2074.2, the department shall produce and make
29publicly available on the department’s Internet Web site a written
30peer reviewed report, based upon the best scientific information
31available to the department, which indicates whether the petitioned
32action is warranted, which includes a preliminary identification of
33the habitat that may be essential to the continued existence of the
34species, and which recommends management activities and other
35recommendations for recovery of the species. The department shall
36amend the draft status review report as appropriate to incorporate
37scientific information from the independent peer review. The
38revised report shall be posted on the department’s Internet Web
39site for a minimum of 30 days for public review prior to the hearing
40scheduled pursuant to Section 2075. The commission may grant
P8    1an extension of up to six months if the director determines an
2extension is necessary to complete independent peer review of the
3report, and to provide a minimum of 30 days for public review of
4the peer reviewed report prior to the public hearing specified in
5Section 2075.

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

9

SEC. 6.  

Section 2074.6 is added to the Fish and Game Code,
10to read:

11

2074.6.  

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

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

24

SEC. 7.  

Section 2074.8 of the Fish and Game Code is amended
25to read:

26

2074.8.  

(a) This article does not impose any duty or obligation
27for, or otherwise require, the commission or the department to
28undertake independent studies or other assessments of any species
29when reviewing a petition and its attendant documents and
30comments. However, the department shall seek independent
31scientific peer review of the department’s status report. The director
32may approve an extension of time for completion of the status
33report if necessary for the purposes of obtaining independent peer
34review pursuant to Section 2074.6.

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

38

SEC. 8.  

Section 2074.8 is added to the Fish and Game Code,
39to read:

P9    1

2074.8.  

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

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

7

SEC. 9.  

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

9

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
10the commission shall hold a public hearing on the petition and
11shall receive information, written or otherwise, and oral testimony.
12After the conclusion of oral testimony from department staff, the
13petitioner, or any other persons, the commission may close the
14public hearing and the administrative record for the department’s
15decision pursuant to this section.

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

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

28(1) There is a change in state or federal law or regulation that
29has a direct and significant impact on the commission’s
30determination as to whether the petitioned action is warranted.

31(2) The commission determines that it requires further
32information to evaluate whether the petitioned action is warranted.
33If the commission makes that determination during its deliberation,
34the commission may request, on the record at the scheduled
35meeting or at a continued meeting, further information on any
36issue relevant to making its determination as to whether the
37petitioned action is warranted. Any request by the commission
38pursuant to this paragraph shall specify a date by which the
39information must be submitted to the commission and shall serve
40to reopen the administrative record for the limited purpose of
P10   1receiving further information relating to the issues specified by
2the commission in the request. Commission and department staff,
3the petitioner, or any other person may submit information in
4response to a request pursuant to this paragraph.

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

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

18(1) The petitioned action is not warranted, in which case the
19finding shall be entered in the public records of the commission
20and the petitioned species shall be removed from the list of
21candidate species maintained pursuant to Section 2074.2.

22(2) The petitioned action is warranted, in which case the
23commission shall publish a notice of that finding and a notice of
24proposed rulemaking pursuant to Section 11346.4 of the
25Government Code, to add the species to, or remove the species
26from, the list of endangered species or the list of threatened species.
27Further proceedings of the commission on the petitioned action
28shall be made in accordance with Chapter 3.5 (commencing with
29Section 11340) of Part 1 of Division 3 of Title 2 of the Government
30Code.

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

34

SEC. 10.  

Section 2075.5 is added to the Fish and Game Code,
35to read:

36

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
37the commission shall make one of the following findings:

38(1) The petitioned action is not warranted, in which case the
39finding shall be entered in the public records of the commission
P11   1and the petitioned species shall be removed from the list of
2candidate species maintained pursuant to Section 2074.2.

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

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

13

SEC. 11.  

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

15

2087.  

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

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

21(c) This section shall remain in effect only until January 1, 2020,
22and as of that date is repealed, unless a later enacted statute, that
23is enacted before January 1, 2020, deletes or extends that date.

begin delete
24

SEC. 12.  

Section 3517 is added to the Fish and Game Code,
25to read:

26

3517.  

(a) It is the policy of the state that, when agricultural
27lands are being idled in order to provide water for transfer, the
28growth of nonirrigated cover crops or natural vegetation for
29waterfowl, upland game bird, and other wildlife habitat, carbon
30sequestration, and air quality benefits shall be encouraged on those
31lands if the cover vegetation does not cause more than a de minimis
32or insignificant change in the amount of water being transferred.

33(b) A state agency shall not prohibit, condition, penalize, or
34otherwise restrict the establishment of upland nesting cover or
35associated waterfowl brood habitat for the purpose of propagating
36waterfowl, upland game birds, or other birds protected pursuant
37to this code without the concurrence of the department.

end delete
38begin insert

begin insertSEC. 12.end insert  

end insert

begin insertSection 482 of the end insertbegin insertWater Codeend insertbegin insert is amended to read:end insert

39

482.  

The department shall prepare a water transfer guide which
40shall include, but not be limited to, all of the following:

P12   1(a)  A review of existing and appropriate state and federal laws
2that pertain to water transfers, water markets, or water rights.

3(b)  A list of persons or public agencies throughout the state
4involved in water management who could be helpful to those
5seeking assistance to transfer water.

6(c)  Information and resources which could be used to identify
7potential third-party impacts and mitigation alternatives, including
8economicbegin delete, environmental, andend deletebegin insert orend insert legal issues related to the transfer
9of waterbegin insert, and environmental issues, including, but not limited to,
10those described in Section 1018end insert
.

11(d)  A description of the services available to water users from
12the department.

13

SEC. 13.  

Section 1018 is added to the Water Code, to read:

14

1018.  

begin deleteIt is the policy of the state that, when end deletebegin insertWhen end insertagricultural
15lands are being idled in order to provide water for transfer pursuant
16to this division,begin delete the growth ofend deletebegin insert and an amount of water is
17determined to be made available by that idling, landowners shall
18be encouraged to cultivate or retainend insert
nonirrigated cover crops or
19natural vegetationbegin delete forend deletebegin insert to provideend insert waterfowl, upland game bird, and
20other wildlife habitat,begin delete carbon sequestration, and air quality benefits
21shall be encouraged on those lands if the cover vegetation does
22not cause more than a de minimis or insignificant change in the
23amount of water being transferred.end delete
begin insert provided that all other water
24transfer requirements are met.end insert



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