BILL ANALYSIS                                                                                                                                                                                                    



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          SENATE THIRD READING
          SB 749 (Wolk)
          As Amended  September 6, 2013
          Majority vote

           SENATE VOTE  :39-0  
           
           WATER, PARKS & WILDLIFE        15-0                  
          APPROPRIATIONS      17-0        
           
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          |Ayes:|Rendon, Bigelow, Allen,   |Ayes:|Gatto, Harkey, Bigelow,   |
          |     |Bocanegra, Dahle, Fong,   |     |Bocanegra, Bradford, Ian  |
          |     |Frazier, Beth Gaines,     |     |Calderon, Campos,         |
          |     |Gatto, Gomez, Gonzalez,   |     |Donnelly, Eggman, Gomez,  |
          |     |Gray, Patterson, Yamada,  |     |Hall, Holden, Linder,     |
          |     |Williams                  |     |Pan, Quirk, Wagner, Weber |
          |     |                          |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           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.  Requires moneys  
            collected from agricultural leases of DFW managed lands to be  
            deposited into the Wildlife Restoration Fund and authorizes  
            those moneys, upon appropriation by the Legislature, to be  
            used to support the management, maintenance, restoration and  
            operations of DFW managed lands.

          2)Requires DFW to annually provide an opportunity for licensed  
            hunters to comment and make recommendations on public hunting  
            programs, and authorizes DFW to hold regional meetings on  
            hunting programs for different wildlife areas.









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          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 information is  
               needed to reach a decision on the petition.  Requires the  
               FGC if it reopens the record to provide an opportunity for  
               public comment on the submitted information prior to the  
               issuance of its decision.

             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.

             e)   Clarifies the DFW's responsibilities for independent  
               peer review of species status reports.

          4)Requires, 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, that  
            landowners shall be encouraged to cultivate or retain  








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            non-irrigated cover crops or natural vegetation to provide  
            waterfowl, upland game bird, and other wildlife habitat,  
            provided that all water transfer requirements are met.   
            Additionally requires the Department of Water Resources (DWR)  
            to include information and resources regarding this issue in  
            its water transfer guide.

          5)Extends the sunset date on the Department of Fish and  
            Wildlife's (DFW's) coho salmon recovery strategy pilot program  
            from 2014 to 2017.

           EXISTING LAW  :

          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 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.









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           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee:

          1)Cost pressure of up to $1.7 million for lost revenues to the  
            Wildlife Restoration Fund.

          2)Minor, absorbable costs to review petitions to add or remove a  
            species from the lists of threatened or endangered species and  
            make recommendations regarding the establishment of bird  
            habitat.

           COMMENTS  :  This bill enacts several changes related to both  
          wildlife-friendly farming practices and CESA.  The author  
          indicates 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) encouraging non-irrigated  
          cover crops or natural vegetation on agricultural lands that are  
          fallowed as a result of water transfers, in order to provide  
          habitat benefits for waterfowl and upland game bird nesting and  
          brooding activities.

          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, upon appropriation, may be used to support the  
          maintenance and operations of DFW-managed lands, and requires  
          DFW to deposit the funds in the Wildlife Restoration Fund.  The  








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          ability of 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.

          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.  This bill also extends the sunset  
          period for three years on DFW's authority for continued  
          implementation of its existing coho salmon recovery strategy  
          pilot program, which would otherwise sunset the end of this  
          year.  

          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 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  








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          consume water through seepage, thereby reducing the amount of  
          water that is actually available for transfer.  This bill seeks  
          to accommodate both concerns by providing that when agricultural  
          lands are idled to provide water for transfer, and an amount of  
          water is determined to be made available by that idling, the  
          growth of non-irrigated cover crops or natural vegetation for  
          waterfowl, upland game birds and other wildlife habitat shall be  
          encouraged, provided all other water transfer requirements are  
          met.  

          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  
          California's laws can sometimes make farming and ranching a  
          challenge.  In particular, many 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 to 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.   
          While recognizing water transfers are an increasing strategy to  
          meet California's water needs, this bill seeks to help ensure  
          some wildlife habitat benefit can remain on a transferor's land.  
           Allowing non-irrigated cover vegetation may 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.                     


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


                                                                FN: 0002502








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