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