BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 749
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          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  








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                 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  :








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          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.








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            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  








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          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  








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          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  








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          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








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          Pheasants Forever
           
            Opposition 
           
          None on file.

           Analysis Prepared by  :    Diane Colborn / W., P. & W. / (916)  
          319-2096