Amended in Assembly September 6, 2013

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 amendbegin delete Sectionend deletebegin insert Sectionsend insert 2087begin insert and 2115.5end insert of, to amend, repeal, and add Sections 2074.2, 2074.6, 2074.8, and 2075.5 of, to add Section 1745.1 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 Section 482 of, and to add Section 1018 to, 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.

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.

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. 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 otherbegin delete means as the department deems appropriateend deletebegin insert public outreachend insert. In complying with these provisions, the bill would authorize the department to hold regional meetings on its hunting programs for several different wildlife areas.

(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 hearingsbegin insert and public commentend insert.

(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 insert

(4) The California Endangered Species Act, until January 1, 2014, provides for the development and implementation of a recovery strategy pilot program for coho salmon.

end insert
begin insert

This bill would extend these provisions to January 1, 2017.

end insert
begin delete

(4)

end delete

begin insert(5)end insert Existing law 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 uses.

This bill would, when agricultural lands are being idled in order to provide water for transfer and an amount of water is determined to be made available by that idling, require landowners to be encouraged to cultivate or retain nonirrigated cover crops or natural vegetation to provide waterfowl, upland game bird, and other wildlife habitat, as specified.

begin delete

(5)

end delete

begin insert(6)end insert Existing law requires the Department of Water Resources to prepare a water transfer guide which is required to include specified information.

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.

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

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

P3    1

SECTION 1.  

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

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
P4    1compatible with the department’s approved management plan for
2the area, if available.

3(b) The moneys collected from agricultural leases entered into
4pursuant to subdivision (a) shall be deposited by the department
5into the Wildlife Restoration Fund and, upon appropriation by the
6Legislature, may be used to support the management, maintenance,
7restoration, and operations of department-managed lands.

8

SEC. 2.  

Article 2.5 (commencing with Section 1758) is added
9to Chapter 7.5 of Division 2 of the Fish and Game Code, to read:

10 

11Article 2.5.  Bird Habitat Conservation
12

 

13

1758.  

The department shall annually provide an opportunity
14for licensed hunters to comment and make recommendations on
15the public hunting programs, including anticipated habitat
16 conditions in the hunting areas on Type A and Type B Wildlife
17Areas, as defined under the commission’s regulations, through
18public meetings or otherbegin delete means as the department deems
19appropriateend delete
begin insert public outreachend insert. In complying with this section, the
20department may hold regional meetings on its hunting programs
21for several different wildlife areas.

22

SEC. 3.  

Section 2074.2 of the Fish and Game Code is amended
23to read:

24

2074.2.  

(a) At the meeting scheduled pursuant to Section 2074,
25the commission shall hold a public hearing on the petition and
26shall receive information, written or otherwise, and oral testimony.
27After the conclusion of oral testimony from the commission and
28department staff, the petitioner, or any other persons, the
29commission may close the public hearing and administrative record
30for the commission’s decision pursuant to this section.

31(b) After the commission closes the public hearing, the
32administrative record for the commission’s decision is closed and
33it shall not be reopened except as provided in subdivision (c). Once
34the public hearing is closed, no person shall submit further
35information to the commission for consideration on that petition
36and the commission shall not accept any further information for
37consideration on that petition except as provided in subdivision
38(c).

39(c) The administrative record for the commission’s decision
40pursuant to this section shall not be reopened once the commission
P5    1closes the public hearing unless one of the following occurs prior
2to the commission’s decision:

3(1) There is a change in state or federal law or regulation that
4has a direct and significant impact on the commission’s
5determination as to whether the petition provides sufficient
6information to indicate that the petitioned action may be warranted.

7(2) The commission determines that it requires further
8information to evaluate whether the petition provides sufficient
9information to indicate that the petitioned action may be warranted.
10If the commission makes that determination during its deliberation,
11the commission may request, on the record at the scheduled
12meeting or at a continued meeting, further information on any
13issue relevant to making its determination as to whether the petition
14provides sufficient information to indicate that the petitioned action
15may be warranted. Any request by the commission pursuant to
16this paragraph shall specify a date by which the information must
17be submitted to the commission and shall serve to reopen the
18administrative record for the limited purpose of receiving further
19information relating to the issues specified by the commission in
20the request. Commission and department staff, the petitioner, or
21any other person may submit information in response to a request
22pursuant to this paragraph.begin insert If the commission reopens the record
23pursuant to this paragraph, it shall provide an opportunity for
24public comment on the submitted information prior to the issuance
25of its decision.end insert

26(d) In its discretion, the commission may either close the public
27hearing and continue the meeting on the petition for the purpose
28of deliberation or continue both the public hearing and the meeting
29on the petition to a subsequent date, which shall be no later than
3090 days after the meeting scheduled pursuant to Section 2074, and
31subject to applicable notice and agenda requirements. If the
32commission closes the public hearing but continues the meeting
33for the purpose of deliberation, a person shall not submit, and the
34commission shall not receive, further information relating to the
35petition except as provided in subdivision (c).

36(e) At the meeting scheduled pursuant to Section 2074 or at a
37continued meeting scheduled pursuant to subdivision (d), the
38commission shall consider the petition, the department’s written
39report, written comments received, and oral testimony provided
P6    1during the public hearing, and the commission shall make and
2enter in its 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(f) The commission shall publish and distribute the findings
18relating to the petition pursuant to Section 2078.

19(g) This section shall remain in effect only until January 1, 2017,
20and as of that date is repealed, unless a later enacted statute, that
21is enacted before January 1, 2017, deletes or extends that date.

22

SEC. 4.  

Section 2074.2 is added to the Fish and Game Code,
23to read:

24

2074.2.  

(a) At the scheduled meeting, the commission shall
25consider the petition, the department’s written report, and
26comments received, and the commission shall make and enter in
27its public record one of the following findings:

28(1) If the commission finds that the petition does not provide
29sufficient information to indicate that the petitioned action may
30be warranted, the commission shall publish a notice of finding that
31the petition is rejected, including the reasons why the petition is
32not sufficient.

33(2) If the commission finds that the petition provides sufficient
34information to indicate that the petitioned action may be warranted,
35the commission shall publish a notice of finding that the petition
36is accepted for consideration. If the accepted petition recommends
37the addition of a species to either the list of endangered species or
38the list of threatened species, the commission shall include in the
39notice that the petitioned species is a candidate species. The
P7    1commission shall maintain a list of species which are candidate
2species.

3(b) The commission shall publish and distribute the findings
4relating to the petition pursuant to Section 2078.

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

6

SEC. 5.  

Section 2074.6 of the Fish and Game Code is amended
7to read:

8

2074.6.  

(a) The department shall promptly commence a review
9of the status of the species concerned in the petition. Within 12
10months of the date of publication of a notice of acceptance of a
11petition for consideration pursuant to paragraph (2) of subdivision
12(e) of Section 2074.2, the department shall produce and make
13publicly available on the department’s Internet Web site abegin insert finalend insert
14 written peer reviewed report, based upon the best scientific
15information available to the department, which indicates whether
16the petitioned action is warranted, which includes a preliminary
17identification of the habitat that may be essential to the continued
18existence of the species, and which recommends management
19activities and other recommendations for recovery of the species.
20begin deleteThe end deletebegin insertPrior to releasing the final written report, the end insertdepartment
21shall begin deleteamend the draft status review report as appropriate to
22incorporate scientific information from the independent peer reviewend delete

23begin insert have a draft status review report prepared and independently peer
24reviewed, and upon receiving the peer reviewers’ input, shall
25evaluate and respond in writing to the independent peer review
26and shall amend the draft status review report as appropriateend insert
. The
27revised report shall be posted on the department’s Internet Web
28site for a minimum of 30 days for public review prior to the hearing
29scheduled pursuant to Section 2075. The commission may grant
30an extension of up to six months if the director determines an
31extension is necessary to complete independent peer review of the
32report, and to provide a minimum of 30 days for public review of
33the peer reviewed report prior to the public hearing specified in
34Section 2075.

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. 6.  

Section 2074.6 is added to the Fish and Game Code,
39to read:

P8    1

2074.6.  

(a) The department shall promptly commence a review
2of the status of the species concerned in the petition. Within 12
3months of the date of publication of a notice of acceptance of a
4petition for consideration by the commission pursuant to paragraph
5(2) of subdivision (a) of Section 2074.2, the department shall
6provide a written report to the commission, based upon the best
7scientific information available to the department, which indicates
8whether the petitioned action is warranted, which includes a
9preliminary identification of the habitat that may be essential to
10the continued existence of the species, and which recommends
11management activities and other recommendations for recovery
12of the species.

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

14

SEC. 7.  

Section 2074.8 of the Fish and Game Code is amended
15to read:

16

2074.8.  

(a) This article does not impose any duty or obligation
17for, or otherwise require, the commission or the department to
18undertake independent studies or other assessments of any species
19when reviewing a petition and its attendant documents and
20comments. However, the department shall seek independent
21scientific peer review of the department’s status report. The director
22may approve an extension of time for completion of the status
23report if necessary for the purposes of obtaining independent peer
24review pursuant to Section 2074.6.

25(b) This section shall remain in effect only until January 1, 2017,
26and as of that date is repealed, unless a later enacted statute, that
27is enacted before January 1, 2017, deletes or extends that date.

28

SEC. 8.  

Section 2074.8 is added to the Fish and Game Code,
29to read:

30

2074.8.  

(a) This article does not impose any duty or obligation
31for, or otherwise require, the commission or the department to
32undertake independent studies or other assessments of any species
33when reviewing a petition and its attendant documents and
34comments.

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

36

SEC. 9.  

Section 2075.5 of the Fish and Game Code is amended
37to read:

38

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
39the commission shall hold a public hearing on the petition and
40shall receive information, written or otherwise, and oral testimony.
P9    1After the conclusion of oral testimony from department staff, the
2petitioner, or any other persons, the commission may close the
3public hearing and the administrative record for the department’s
4decision pursuant to this section.

5(b) After the commission closes the public hearing the
6administrative record for the commission’s decision is closed and
7it shall not be reopened except as provided in subdivision (c). Once
8the public hearing is closed a person shall not submit further
9information to the department for consideration on that petition
10 and the commission shall not accept any further information for
11consideration on that petition except as provided in subdivision
12(c).

13(c) The administrative record for the commission’s decision
14pursuant to this section shall not be reopened once the department
15closes the public hearing unless one of the following occurs prior
16to the commission’s decision:

17(1) There is a change in state or federal law or regulation that
18has a direct and significant impact on the commission’s
19determination as to whether the petitioned action is warranted.

20(2) The commission determines that it requires further
21information to evaluate whether the petitioned action is warranted.
22If the commission makes that determination during its deliberation,
23the commission may request, on the record at the scheduled
24meeting or at a continued meeting, further information on any
25issue relevant to making its determination as to whether the
26petitioned action is warranted. Any request by the commission
27pursuant to this paragraph shall specify a date by which the
28information must be submitted to the commission and shall serve
29to reopen the administrative record for the limited purpose of
30receiving further information relating to the issues specified by
31the commission in the request. Commission and department staff,
32the petitioner, or any other person may submit information in
33response to a request pursuant to this paragraph.

34(d) The commission, in its discretion, may either close the public
35hearing and continue the meeting on the petition for the purpose
36of deliberation or continue both the public hearing and the meeting
37on the petition to a subsequent date which is no later than 90 days
38after the meeting scheduled pursuant to Section 2075, and subject
39to applicable notice and agenda requirements. If the commission
40closes the public hearing but continues the meeting for the purpose
P10   1of deliberation, a person shall not submit, and the commission
2shall not receive, further information relating to the petition except
3as provided in subdivision (c).

4(e) At the meeting scheduled pursuant to Section 2075, or at a
5continued meeting scheduled pursuant to subdivision (d), the
6commission shall make one of the following findings:

7(1) The petitioned action is not warranted, in which case the
8finding shall be entered in the public records of the commission
9and the petitioned species shall be removed from the list of
10candidate species maintained pursuant to Section 2074.2.

11(2) The petitioned action is warranted, in which case the
12commission shall publish a notice of that finding and a notice of
13proposed rulemaking pursuant to Section 11346.4 of the
14Government Code, to add the species to, or remove the species
15from, the list of endangered species or the list of threatened species.
16Further proceedings of the commission on the petitioned action
17shall be made in accordance with Chapter 3.5 (commencing with
18Section 11340) of Part 1 of Division 3 of Title 2 of the Government
19Code.

20(f) This section shall remain in effect only until January 1, 2017,
21and as of that date is repealed, unless a later enacted statute, that
22is enacted before January 1, 2017, deletes or extends that date.

23

SEC. 10.  

Section 2075.5 is added to the Fish and Game Code,
24to read:

25

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
26the commission shall make one of the following findings:

27(1) The petitioned action is not warranted, in which case the
28finding shall be entered in the public records of the commission
29and the petitioned species shall be removed from the list of
30candidate species maintained pursuant to Section 2074.2.

31(2) The petitioned action is warranted, in which case the
32commission shall publish a notice of that finding and a notice of
33proposed rulemaking pursuant to Section 11346.4 of the
34Government Code to add the species to, or remove the species
35from, the list of endangered species or the list of threatened species.
36Further proceedings of the commission on the petitioned action
37shall be made in accordance with Chapter 3.5 (commencing with
38Section 11340) of Part 1 of Division 3 of Title 2 of the Government
39Code.

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

P11   1

SEC. 11.  

Section 2087 of the Fish and Game Code is amended
2to read:

3

2087.  

(a) Accidental take of candidate, threatened, or
4endangered species resulting from an act that occurs on a farm or
5a ranch in the course of otherwise lawful routine and ongoing
6agricultural activities is not prohibited by this chapter.

7(b) For purposes of this section, “accidental” means unintended
8or unforeseen.

9(c) This section shall remain in effect only until January 1, 2020,
10and as of that date is repealed, unless a later enacted statute, that
11is enacted before January 1, 2020, deletes or extends that date.

12begin insert

begin insertSEC. 12.end insert  

end insert

begin insertSection 2115.5 of the end insertbegin insertFish and Game Codeend insertbegin insert is amended
13to read:end insert

14

2115.5.  

This article shall remain in effect only until January
151,begin delete 2014end deletebegin insert 2017end insert, and as of that date is repealed, unless a later enacted
16statute, which is enacted before January 1,begin delete 2014end deletebegin insert 2017end insert, deletes or
17extends that date. However, this section does not apply to a
18recovery strategy that is approved or implemented pursuant to this
19article on or before January 1,begin delete 2014end deletebegin insert 2017end insert, and those recovery
20strategies, and any permits or memoranda of understanding relating
21thereto, shall remain effective as if this article had not been
22repealed.

23

begin deleteSEC. 12.end delete
24begin insertSEC. 13.end insert  

Section 482 of the Water Code is amended to read:

25

482.  

The department shall prepare a water transfer guide which
26shall include, but not be limited to, all of the following:

27(a) A review of existing and appropriate state and federal laws
28that pertain to water transfers, water markets, or water rights.

29(b) A list of persons or public agencies throughout the state
30involved in water management who could be helpful to those
31seeking assistance to transfer water.

32(c) Information and resources which could be used to identify
33potential third-party impacts and mitigation alternatives, including
34economic or legal issues related to the transfer of water, and
35environmental issues, including, but not limited to, those described
36in Section 1018.

37(d) A description of the services available to water users from
38the department.

39

begin deleteSEC. 13.end delete
40begin insertSEC. 14.end insert  

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

P12   1

1018.  

When agricultural lands are being idled in order to
2provide water for transfer pursuant to this division, and an amount
3of water is determined to be made available by that idling,
4landowners shall be encouraged to cultivate or retain nonirrigated
5cover crops or natural vegetation to provide waterfowl, upland
6game bird, and other wildlife habitat, provided that all other water
7transfer requirements are met.



O

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