BILL ANALYSIS                                                                                                                                                                                                    





           ----------------------------------------------------------------- 
          |                                                                 |
          |         SENATE COMMITTEE ON NATURAL RESOURCES AND WATER         |
          |                   Senator Fran Pavley, Chair                    |
          |                    2013-2014 Regular Session                    |
          |                                                                 |
           ----------------------------------------------------------------- 

          BILL NO: SB 749                    HEARING DATE: April 9, 2013  
          AUTHOR: Wolk                       URGENCY: No  
          VERSION:   April 1, 2013           CONSULTANT: Bill Craven  
          DUAL REFERRAL: No                  FISCAL: Yes  
          SUBJECT: Habitat protection: endangered species.  
          
          BACKGROUND AND EXISTING LAW
          1. Existing law, section 1348 of the Fish and Game Code,  
          requires that lease revenues generated by the Department of Fish  
          and Wildlife (DFW) from lands that it manages are deposited in  
          the wildlife restoration fund managed by the Wildlife  
          Conservation Board (WCB). These and related sections in the Fish  
          and Game Code authorize the WCB only to acquire, not manage,  
          lands for the department. 

          2. Existing law establishes numerous procedural provisions in  
          the California Endangered Species Act that pertain to the  
          scientific review, the contents of the administrative record,  
          ground rules for public participation, and the conduct of public  
          hearings that may be involved in a decision by the California  
          Fish and Game Commission (FGC) and DFW. 

          3. Existing law, section 2087 of the Fish and Game Code,  
          establishes that the "accidental take" of a candidate,  
          threatened, or endangered species that occurs in the course of  
          routine and ongoing agricultural activities is not prohibited.  
          This provision is scheduled to sunset on January 1, 2014. 

          4. Existing law establishes a number of advisory committees for  
          the department or the commission, and both entities have also  
          established several such committees informally. A general  
          hunting-oriented advisory group is the awkwardly named Al  
          Taucher's Preserving Hunting and Sport Fishing Opportunities  
          Advisory Committee with 30-some members from 30-some  
          wildlife-related interest groups. More specialized advisory  
          committees for salmon, Dungeness crab, aquaculture, abalone,  
          spiny lobster, among others, are also in code. Staff is informed  
                                                                      1







          that the Al Taucher Committee may be, or has been, abolished. It  
          was named for a former FGC commissioner. AB 497 (Chesbro) is  
          pending in the Assembly and would require formation of a  
          wildlife resources committee.

          5. Hunting groups have been concerned that the Department of  
          Water Resources reduces payments to landowners who enter into  
          voluntary water transfers in instances in which annual weeds or  
          other vegetation appears on lands that are fallowed after a  
          water transfer. Hunters consider these weeds to be essential  
          bird and duck nesting habitat. 


          PROPOSED LAW
          1. The first provision in SB 749 would state that leasing of  
          department-managed lands shall be consistent with the purpose  
          for which the lands were acquired and, if a management plan has  
          been approved, then the leasing must also be compatible with  
          that plan. This provision would also allow, but not require,  
          lease revenues to be used for operations and maintenance at the  
          lands from which the lease revenues were generated. 

          2. Several changes would be made to the procedures for listing  
          threatened and endangered species. The commission would have new  
          authority to close the public hearing and the administrative  
          record except under specified circumstances. These circumstances  
          include a change in federal or state law or when the commission  
          determines that it requires further information. A new provision  
          would require the commission to make a finding either that the  
          petition to list a new species is inadequate and state the  
          reasons therefore, or that the petition is accepted for  
          consideration and the reasons for that decision. In such a case,  
          this bill would require that a peer-reviewed scientific report  
          be completed with 12 months and made available on the DFW  
          website for at least 30 days prior to a hearing to consider a  
          listing decision. All of these provisions would sunset on  
          January 1, 2017. If these proposed new provisions are not  
          renewed, then SB 749 states that the provisions in effect prior  
          to these amendments would be restored. 

          3. The proposed new section 1758 in the Fish and Game Code would  
          require the department to annually solicit recommendations for  
          the management of lands that the department identifies as those  
          lands it will manage to improve upland nesting cover and  
          waterfowl and upland bird brood habitat. State agencies would be  
          prohibited from actions that would restrict the establishment of  
          these habitat areas. A minor amendment is recommended below that  
                                                                      2







          would use an existing advisory committee.  

          4. The sunset for the accidental take provision would be  
          extended to 2020. Additionally, a definition of accidental take  
          would be added which states that it means "unintended,  
          unforeseen, and injurious." Accidental take would be limited to  
          an act and not a series of acts which is consistent with the  
          original purpose of the provision. The technical amendment  
          recommended below would conform the definition of take to other  
          provisions of the state endangered species act. 

          5. A new provision is proposed that would encourage DFW and FGC  
          to encourage the restoration and enhancement of upland nesting  
          cover and associated waterfowl brood habitat to support the  
          production of resident waterfowl, upland game birds, and other  
          birds. This section would prohibit a state agency from  
          restricting the establishment of these habitats without the  
          concurrence of DFW. A proposed amendment would maintain the  
          intent of this section but instead of focusing on restrictions  
          on creating habitat, the section would prohibit state agencies  
          from penalizing landowners or conditioning or reducing water  
          transfer payments based on habitat which is created naturally  
          and which does not depend on the water that is a part of the  
          transfer. 

          ARGUMENTS IN SUPPORT
          The California Farm Bureau Federation is in support of the  
          sunset extension of the accidental take provisions in SB 749 as  
          well as the administrative record changes for listings of  
          species pursuant to the California Endangered Species Act. On  
          the first point, the CFBF contends that the accidental take  
          provision is an assurance that the pure accidental take of  
          listed species will not be used to impose liability on farmers  
          and ranchers. On the second point, the CFBF states that the  
          clarification of when the administrative record is open will  
          improve the procedures used by DFW and to have the DFW status  
          report subject to peer review will ensure that scientific data  
          is better incorporated into the listing process. 

          The California Cattlemen's Association supports both the  
          accidental take provision in the bill as well as the provision  
          that returns lease revenues to the DFW lands that generated  
          those lease revenues. 

          The California Waterfowl Association supports those provisions  
          in the bill that would benefit increased duck and upland game  
          bird habitat and the provision pertaining to the return of lease  
                                                                      3







          revenues to the parcels that generated those revenues. 

          ARGUMENTS IN OPPOSITION
          None received


               SUGGESTED AMENDMENTS 
                                             
                      AMENDMENT 1 
               In the proposed new section 1758 that deals with bird  
               habitat conservation that is on page 2 of the amended  
               version of the bill, staff recommends the following: 

               (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 the upland game bird  
               advisory committee. 

               AMENDMENT 2 
               As a technical amendment, delete "injurious" on page 9,  
               line 20. 

               AMENDMENT 3
               Page 9, line 34
               This is a proposed three-part amendment to effectuate the  
               same change in both the Fish and Game Code and the Water  
               Code. 

          (b) Unless expressly authorized by law, and notwithstanding  
          subdivision (d) of Section 1810 of the Water Code, no state  
          entity shall 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.

          Amend Water Code 1810(d): 
          (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, no state entity shall penalize a landowner or  
          impose conditions on a water transfer because of  
          evapotranspiration by vegetation that grows naturally and  
                                                                      4







          without irrigation on land fallowed pursuant to a water  
          transfer.

          Amend Water Code 1725

          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 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.
               
          SUPPORT
          California Outdoor Heritage Alliance
          California Farm Bureau Federation
          California Cattlemens Association
          California Waterfowl Association

          OPPOSITION
          None received

















                                                                      5