BILL ANALYSIS Ó
SB 749
Page 1
Date of Hearing: July 2, 2013
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
SB 749 (Wolk) - As Amended: June 25, 2013
SENATE VOTE : 39-0
SUBJECT : Habitat Protection: Endangered Species
SUMMARY : Makes several procedural changes to the California
Endangered Species Act (CESA); extends the sunset date on the
authority for accidental take of listed species in the course of
otherwise lawful and routine agricultural activities; and enacts
other provisions related to agricultural leasing of state lands
and protection of habitat for upland game birds and nesting
waterfowl. Specifically, this bill :
1)Authorizes the Department of Fish and Wildlife (DFW) to lease
department-managed lands for agricultural activities,
including but not limited to grazing, where consistent with
the purpose for which the lands were acquired and compatible
with the DFW's management plan for the area. Authorizes
moneys collected from agricultural leases of DFW managed lands
to be used to support the maintenance and operations of the
DFW managed lands and to be deposited in the Wildlife
Restoration Fund of the Fish and Game Preservation Fund.
2)Requires the DFW to identify, in the annual work plans for its
wildlife management areas, those lands which it shall maintain
for restoring or enhancing upland nesting cover and waterfowl
brood habitat to support production of resident waterfowl and
upland game birds. Requires the DFW to annually solicit
comment and recommendations on the management of those lands
from the upland game bird advisory committee.
3)Makes several changes to the processes and procedures required
under CESA as follows:
a) Clarifies when a public hearing is closed for
purposes of finalizing the administrative record in CESA
proceedings, and clarifies the circumstances under which
the administrative record can be reopened, which include
material changes in the law and a determination by the
Fish and Game Commission (FGC) that additional
SB 749
Page 2
information is needed to reach a decision on the
petition.
b) Requires the species status report prepared by the
DFW for purposes of determining whether a petitioned
action is warranted to be independently peer reviewed and
made available on the DFW's Internet Web site. Requires
the DFW to amend the draft status report as appropriate
to incorporate scientific information from the
independent peer review, and to make the revised status
report available for a minimum of 30 days for public
review prior to the hearing on the listing decision.
Authorizes the FGC to grant an extension of up to six
months if necessary to complete independent peer review
and provide the required time for public notice and
review.
c) Provides that these changes to the CESA processes
shall sunset on January 1, 2017, unless a later enacted
statute deletes or extends that date.
d) Extends the sunset from 2014 to 2020 on the
provision of existing law allowing accidental take of a
candidate, threatened or endangered species resulting
from an act that occurs on a farm or ranch in the course
of otherwise lawful routine and ongoing agricultural
activities. Defines accidental to mean unintended or
unforeseen.
1)Prohibits any state agency from prohibiting, conditioning,
penalizing or otherwise restricting the establishment of
upland nest cover or associated waterfowl brood habitat for
propagating waterfowl, upland game birds, or other protected
birds without the concurrence of the DFW.
2)Establishes a state policy that when agricultural lands are
idled in order to provide water for transfer, the growth of
non-irrigated cover crops or natural vegetation for waterfowl,
upland game bird and other wildlife habitat, carbon
sequestration and air quality benefits shall be encouraged on
such lands if such cover vegetation does not cause more than a
de minimis or insignificant change in the amount of water
being transferred.
EXISTING LAW :
SB 749
Page 3
1)Authorizes the DFW to acquire and manage lands for wildlife
management areas, public shooting grounds, or ecological
reserves.
2)Authorizes the Wildlife Conservation Board (WCB) to authorize
the DFW to lease real property held under the jurisdiction of
the WCB or the DFW and requires the proceeds from such
transactions to be deposited in the Wildlife Restoration Fund.
Authorizes monies in the Wildlife Restoration Fund to be used
for land acquisitions and construction costs.
3)Establishes processes and procedures for the review and
analysis of petitions for the listing of threatened and
endangered species under the CESA. Exempts, until January 1,
2014, accidental take of candidate, threatened or endangered
species resulting from an act occurring in the course of
otherwise lawful routine and ongoing agricultural activities
from the prohibition on take of listed species.
4)Allows a permittee or licensee to temporarily change the point
of diversion, place of use, or purpose of use due to a water
transfer 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. Defines "consumptively used" to
mean the amount of water that 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.
5)Allows a water transferor to use a water conveyance facility
if the use 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.
FISCAL EFFECT : According to the Senate Appropriations
Committee analysis:
1)Cost pressure of up to $1.7 million for lost revenues to the
Wildlife Restoration Fund.
SB 749
Page 4
2) Ongoing costs approximately in the low hundreds of
thousands of dollars from the Fish and Game Preservation
Fund (special fund) for increased DFW responsibilities when
reviewing whether a candidate species should be listed under
the California Endangered Species Act.
3) Ongoing costs approximately in the tens of thousands of
dollars and cost pressures in the hundreds of thousands of
dollars to the Upland Game Bird Account (special fund) in
the Fish and Game Preservation Fund.
COMMENTS : The author indicates that the purpose of this bill
is to ensure good stewardship of private property and
DFW-managed lands by: 1) extending accidental take protection
under CESA for routine and ongoing agricultural activities; 2)
requiring independent scientific review of endangered species
status reports; 3) clarifying DFW's authority to lease
DFW-managed lands for agricultural activities and to use the
revenues from the leases to support maintenance and operation of
the lands; and 4) establishing a state policy to encourage
non-irrigated cover crops or natural vegetation on agricultural
lands that are fallowed as a result of water transfers, in order
to provide some habitat benefits for waterfowl and upland game
bird nesting and brooding activities.
Agricultural Leases on DFW-managed lands, where compatible, can
provide multiple benefits : The DFW has supplemented the costs
of maintenance and operations of DFW-managed lands by granting
leases for agricultural activities on some state managed
wildlife lands. A state audit conducted last year raised
questions regarding the accountability of the leasing process
and the reporting of revenues. The issue was addressed in the
budget process and language was included in the budget bill and
resources budget trailer bill clarifying the DFW's expenditure
authority and bringing these revenues on budget by requiring
that the revenues from the agricultural leases be deposited in
the Wildlife Restoration Fund. This bill clarifies that the DFW
is authorized to lease DFW-managed lands for agricultural
activities, including but not limited to grazing, where
consistent with the purpose for which the lands were acquired
and compatible with the DFW's approved management plan for the
area. It also clarifies that the moneys collected from the
leases may be used to support the maintenance and operations of
SB 749
Page 5
DFW-managed lands, and authorizes the DFW to deposit the funds
in either the Wildlife Restoration Fund or the Fish and Game
Preservation Fund. A technical amendment, described below, is
needed to ensure consistency with budget actions. The ability
of the DFW to grant agricultural leases has been an important
component of the overall management plan for a number of
wildlife refuges managed by DFW. One example is the Yolo Basin
Wildlife Refuge, where lands leased for the growing of rice
provide habitat for waterfowl and other wildlife species, and
managed grazing in other parts of the refuge help to maintain
vernal pool habitat. The revenues generated from the leases
also assist the DFW in covering maintenance and operations costs
for the refuge.
Should CESA be amended to extend the sunset on the accidental
take exemption, and to require independent scientific peer
review of species status reports prepared in response to listing
petitions? This bill makes several amendments to facilitate and
improve the implementation process under CESA. Specifically,
this bill: 1) extends the sunset date on the accidental take
exemption for agricultural activities from 2014 to 2020 and
defines "accidental" as unintended and unforeseen; 2) clarifies
when the administrative record under the CESA listing process is
open and closed; 3) clarifies that independent scientific peer
review is required of all species status reports, and that the
peer review report must be publicly disclosed; and 4) allows the
FGC to grant an extension of time of up to 6 months if necessary
to complete the peer review process and provide public
disclosure. The FGC and DFW indicate that the procedural
changes will help add clarity to the petition review and hearing
process and the ability to grant an extension of time will help
to facilitate completion of peer review.
Can state policy accomplish the dual objectives of allowing and
accurately accounting for water transfers while also encouraging
land practices that conserve critical waterfowl and upland game
bird nesting and brooding habitat? Should the carbon
sequestration and air quality benefits of cover vegetation be
considered? The author indicates that growers interested in
providing water transfers, but also interested in engaging in
wildlife friendly land practices, have expressed concerns that
state rules regarding water transfers may be interpreted in ways
that prohibit or discourage the growing of non-irrigated cover
crops or natural vegetation on agricultural lands idled to
facilitate water transfers. Waterfowl and upland game birds
SB 749
Page 6
have come to rely to a considerable extent on vegetated
agricultural lands for nesting and rearing habitat, as much of
their other habitat has been lost to development. There is
concern that this problem could increase as more lands are
fallowed in the future to facilitate water transfers. On the
other hand, state water agencies have expressed concerns that in
some cases non-irrigated vegetation may consume ground water in
areas where the water table is high, or if the land is near a
canal, may consume water through seepage, thereby reducing the
amount of water that is actually available for transfer. This
bill seeks to accommodate both concerns by establishing a state
policy that when agricultural lands are idled to provide water
for transfer, the growth of non-irrigated cover crops or natural
vegetation for waterfowl, upland game birds and other wildlife
habitat shall be encouraged, provided such cover vegetation does
not cause more than a de minimis or insignificant change in the
amount of water being transferred.
The policy proposed by this bill also recognizes the carbon
sequestration and air quality benefits of allowing the planting
of cover vegetation as opposed to requiring that the dry ground
be left exposed to the air and sun without such coverage. This
policy language replaces prior more prescriptive language in the
bill that would have prohibited a farmer from being penalized or
any conditions being imposed on a water transfer because of
evapotranspiration from naturally growing vegetation.
SUGGESTED TECHNICAL AMENDMENTs : To conform this bill with
language included in the budget trailer bill, subdivision (b) of
Section 1745.1 should be amended to read as follows:
1745.1 (b) Notwithstanding subdivision (c) of Section 1348, T he
moneys collected from agricultural leases entered into pursuant
to subdivision (a) shall be deposited by the department in the
Wildlife Restoration Fund and, upon appropriation, may be used
to support the management, maintenance, restoration, and
operations of department-managed lands. The department may
deposit such moneys into the Wildlife Restoration Fund or the
Fish and Game Preservation Fund .
SUPPORT ARGUMENTS : Supporters, which include agricultural
entities and waterfowl hunting groups, note that California's
farmers and ranchers provide habitat for wildlife throughout the
state, but that unfortunately California's laws can sometimes
make farming and ranching a challenge. In particular, many
SB 749
Page 7
farmers are fearful that if they allow habitat to develop on
their property they may attract protected species and be liable
for accidentally harming a species through routine agricultural
activities. Continuation of the accidental take provision
provides an incentive for farmers not to use a scorched earth
policy and engage in wildlife friendly farming practices,
without fear of liability. Similarly, existing rules regarding
water transfers can discourage landowners from providing upland
nesting cover on lands fallowed as a result of water transfers.
Recognizing water transfers are an increasing strategy to meet
California's water needs, this bill will help ensure some
wildlife habitat benefit can remain on a transferor's land.
Allowing non-irrigated cover vegetation will also assist in
meeting state goals for carbon sequestration to reduce global
warming and improve air quality by reducing air borne dust
particulates. The Central Valley Joint Venture, a
public/private partnership dedicated to implementing the North
American Waterfowl Management Plan in the Central Valley has
also identified the need to establish additional waterfowl
habitat, including upland nesting cover, to bolster bird
populations. Supporters also note that the other proposed
changes to CESA in this bill will improve the listing process by
ensuring scientific data is better incorporated into the listing
process.
Note : While no opposition letters have been received to this
bill, it has been suggested that the policy language concerning
cover crops could be further clarified to expressly state that
the cover crops not cause more than a de minimis or
insignificant change in the amount of water that would have been
consumed on the idled lands absent the water transfer, and that
subsection (b) of Section 3517, which would require the
concurrence of the DFW before another state agency could
prohibit, condition, penalize, or otherwise restrict the
establishment of upland game bird nesting cover or associated
waterfowl brood habitat, be deleted.
REGISTERED SUPPORT / OPPOSITION :
Support
California Association of Winegrape Growers
California Cattlemen's Association
California Farm Bureau Federation
California Waterfowl Association
SB 749
Page 8
Pheasants Forever
Opposition
None on file.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096