California Legislature—2015–16 Regular Session

Assembly Bill No. 2555

Introduced by Committee on Water, Parks, and Wildlife (Assembly Members Levine (Chair), Dodd, Cristina Garcia, Gomez, Lopez, Mathis, Medina, and Williams)

February 19, 2016

An act to amend Sections 2115.5 and 2301 of, and to amend and repeal Sections 2074.2, 2074.6, 2074.8, and 2075.5 of, the Fish and Game Code, relating to fish and wildlife.

LEGISLATIVE COUNSEL’S DIGEST

AB 2555, as introduced, Committee on Water, Parks, and Wildlife. Fish and wildlife.

(1) The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species, and requires the department to recommend, and the commission to adopt, criteria for determining if a species is endangered or threatened. Under the act, an interested person may petition the commission to add a species to, or remove a species from, either the list of endangered species or the list of threatened species, and existing law requires the commission to consider the petition at a meeting, as prescribed. Existing law, until January 1, 2017, establishes additional procedures for the review of a petition, including public hearings and public comment.

This bill would extend those procedures indefinitely.

(2) Existing law requires the Department of Fish and Wildlife to develop and implement a recovery strategy pilot program for coho salmon. Existing law repeals the authority for the pilot program on January 1, 2017, but requires any recovery strategy that has been approved or implemented prior to that date to remain in effect.

The bill would extend these provisions until January 1, 2020.

(3) Existing law generally prohibits a person from possessing, importing, shipping, or transporting in the state, or from placing, planting, or causing to be placed or planted in any water within the state, dreissenid mussels, and authorizes the Director of Fish and Game or his or her designee to engage in various enforcement activities. Existing law provides that a person who violates or resists, delays, obstructs, or interferes with the implementation of these provisions is subject to a penalty, in an amount not to exceed $1,000, that is imposed administratively by the department. Existing law exempts certain entities from enforcement activities, or from civil or criminal liability, under prescribed circumstances. These provisions are repealed on January 1, 2017.

This bill would extend these provisions to January 1, 2020.

Under existing law, a violation of these provisions is a crime. By extending the operation of these provisions, this bill would impose a state-mandated local program.

(4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 2074.2 of the Fish and Game Code, as
amended by Section 3 of Chapter 387 of the Statutes of 2013, is
amended to read:

2074.2.  

(a) At the meeting scheduled pursuant to Section 2074,
the commission shall hold a public hearing on the petition and
shall receive information, written or otherwise, and oral testimony.
After the conclusion of oral testimony from the commission and
department staff, the petitioner, or any other persons, the
commission may close the public hearing and administrative record
for the commission’s decision pursuant to this section.

(b) After the commission closes the public hearing, the
administrative record for the commission’s decision is closed and
it shall not be reopened except as provided in subdivision (c). Once
the public hearing is closed, no person shall submit further
information to the commission for consideration on that petition
and the commission shall not accept any further information for
consideration on that petition except as provided in subdivision
(c).

(c) The administrative record for the commission’s decision
pursuant to this section shall not be reopened once the commission
closes the public hearing unless one of the following occurs prior
to the commission’s decision:

(1) There is a change in state or federal law or regulation that
has a direct and significant impact on the commission’s
determination as to whether the petition provides sufficient
information to indicate that the petitioned action may be warranted.

(2) The commission determines that it requires further
information to evaluate whether the petition provides sufficient
information to indicate that the petitioned action may be warranted.
If the commission makes that determination during its deliberation,
the commission may request, on the record at the scheduled
meeting or at a continued meeting, further information on any
issue relevant to making its determination as to whether the petition
provides sufficient information to indicate that the petitioned action
may be warranted. Any request by the commission pursuant to
this paragraph shall specify a date by which the information must
be submitted to the commission and shall serve to reopen the
administrative record for the limited purpose of receiving further
information relating to the issues specified by the commission in
the request. Commission and department staff, the petitioner, or
any other person may submit information in response to a request
pursuant to this paragraph. If the commission reopens the record
pursuant to this paragraph, it shall provide an opportunity for public
comment on the submitted information prior to the issuance of its
decision.

(d) In its discretion, the commission may either close the public
hearing and continue the meeting on the petition for the purpose
of deliberation or continue both the public hearing and the meeting
on the petition to a subsequent date, which shall be no later than
90 days after the meeting scheduled pursuant to Section 2074, and
subject to applicable notice and agenda requirements. If the
commission closes the public hearing but continues the meeting
for the purpose of deliberation, a person shall not submit, and the
commission shall not receive, further information relating to the
petition except as provided in subdivision (c).

(e) At the meeting scheduled pursuant to Section 2074 or at a
continued meeting scheduled pursuant to subdivision (d), the
commission shall consider the petition, the department’s written
report, written comments received, and oral testimony provided
during the public hearing, and the commission shall make and
enter in its record one of the following findings:

(1) If the commission finds that the petition does not provide
sufficient information to indicate that the petitioned action may
be warranted, the commission shall publish a notice of finding that
the petition is rejected, including the reasons why the petition is
not sufficient.

(2) If the commission finds that the petition provides sufficient
information to indicate that the petitioned action may be warranted,
the commission shall publish a notice of finding that the petition
is accepted for consideration. If the accepted petition recommends
the addition of a species to either the list of endangered species or
the list of threatened species, the commission shall include in the
notice that the petitioned species is a candidate species. The
commission shall maintain a list of species which are candidate
species.

(f) The commission shall publish and distribute the findings
relating to the petition pursuant to Section 2078.

begin delete

(g) This section shall remain in effect only until January 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2017, deletes or extends that date.

end delete

SEC. 2.  

Section 2074.2 of the Fish and Game Code, as added
by Section 4 of Chapter 387 of the Statutes of 2013, is repealed.

begin delete

2074.2.  

(a) At the scheduled meeting, the commission shall
consider the petition, the department’s written report, and
comments received, and the commission shall make and enter in
its public record one of the following findings:

(1) If the commission finds that the petition does not provide
sufficient information to indicate that the petitioned action may
be warranted, the commission shall publish a notice of finding that
the petition is rejected, including the reasons why the petition is
not sufficient.

(2) If the commission finds that the petition provides sufficient
information to indicate that the petitioned action may be warranted,
the commission shall publish a notice of finding that the petition
is accepted for consideration. If the accepted petition recommends
the addition of a species to either the list of endangered species or
the list of threatened species, the commission shall include in the
notice that the petitioned species is a candidate species. The
commission shall maintain a list of species which are candidate
species.

(b) The commission shall publish and distribute the findings
relating to the petition pursuant to Section 2078.

(c) This section shall become operative on January 1, 2017.

end delete

SEC. 3.  

Section 2074.6 of the Fish and Game Code, as amended
by Section 5 of Chapter 387 of the Statutes of 2013, is amended
to read:

2074.6.  

begin delete (a) end delete begin delete   end delete The department shall promptly commence a review
of the status of the species concerned in the petition. Within 12
months of the date of publication of a notice of acceptance of a
petition for consideration pursuant to paragraph (2) of subdivision
(e) of Section 2074.2, the department shall produce and make
publicly available on the department’s Internet Web site a final
written peer reviewed report, based upon the best scientific
information available to the department, which indicates whether
the petitioned action is warranted, which includes a preliminary
identification of the habitat that may be essential to the continued
existence of the species, and which recommends management
activities and other recommendations for recovery of the species.
Prior to releasing the final written report, the department shall have
a draft status review report prepared and independently peer
reviewed, and upon receiving the peer reviewers’ input, shall
evaluate and respond in writing to the independent peer review
and shall amend the draft status review report as appropriate. The
revised report shall be posted on the department’s Internet Web
site for a minimum of 30 days for public review prior to the hearing
scheduled pursuant to Section 2075. The commission may grant
an extension of up to six months if the director determines an
extension is necessary to complete independent peer review of the
report, and to provide a minimum of 30 days for public review of
the peer reviewed report prior to the public hearing specified in
Section 2075.

begin delete

(b) This section shall remain in effect only until January 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2017, deletes or extends that date.

end delete

SEC. 4.  

Section 2074.6 of the Fish and Game Code, as added
by Section 6 of Chapter 387 of the Statutes of 2013, is repealed.

begin delete

2074.6.  

(a) The department shall promptly commence a review
of the status of the species concerned in the petition. Within 12
months of the date of publication of a notice of acceptance of a
petition for consideration by the commission pursuant to paragraph
(2) of subdivision (a) of Section 2074.2, the department shall
provide a written report to the commission, based upon the best
scientific information available to the department, which indicates
whether the petitioned action is warranted, which includes a
preliminary identification of the habitat that may be essential to
the continued existence of the species, and which recommends
management activities and other recommendations for recovery
of the species.

(b) This section shall become operative on January 1, 2017.

end delete

SEC. 5.  

Section 2074.8 of the Fish and Game Code, as amended
by Section 7 of Chapter 387 of the Statutes of 2013, is amended
to read:

2074.8.  

begin delete (a) end delete begin delete   end delete This article does not impose any duty or obligation
for, or otherwise require, the commission or the department to
undertake independent studies or other assessments of any species
when reviewing a petition and its attendant documents and
comments. However, the department shall seek independent
scientific peer review of the department’s status report. The director
may approve an extension of time for completion of the status
report if necessary for the purposes of obtaining independent peer
review pursuant to Section 2074.6.

begin delete

(b) This section shall remain in effect only until January 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2017, deletes or extends that date.

end delete

SEC. 6.  

Section 2074.8 of the Fish and Game Code, as added
by Section 8 of Chapter 387 of the Statutes of 2013, is repealed.

begin delete

2074.8.  

(a) This article does not impose any duty or obligation
for, or otherwise require, the commission or the department to
undertake independent studies or other assessments of any species
when reviewing a petition and its attendant documents and
comments.

(b) This section shall become operative on January 1, 2017.

end delete

SEC. 7.  

Section 2075.5 of the Fish and Game Code, as amended
by Section 9 of Chapter 387 of the Statutes of 2013, is amended
to read:

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
the commission shall hold a public hearing on the petition and
shall receive information, written or otherwise, and oral testimony.
After the conclusion of oral testimony from department staff, the
petitioner, or any other persons, the commission may close the
public hearing and the administrative record for the department’s
decision pursuant to this section.

(b) After the commission closes the public hearing the
administrative record for the commission’s decision is closed and
it shall not be reopened except as provided in subdivision (c). Once
the public hearing is closed a person shall not submit further
information to the department for consideration on that petition
and the commission shall not accept any further information for
consideration on that petition except as provided in subdivision
(c).

(c) The administrative record for the commission’s decision
pursuant to this section shall not be reopened once the department
closes the public hearing unless one of the following occurs prior
to the commission’s decision:

(1) There is a change in state or federal law or regulation that
has a direct and significant impact on the commission’s
determination as to whether the petitioned action is warranted.

(2) The commission determines that it requires further
information to evaluate whether the petitioned action is warranted.
If the commission makes that determination during its deliberation,
the commission may request, on the record at the scheduled
meeting or at a continued meeting, further information on any
issue relevant to making its determination as to whether the
petitioned action is warranted. Any request by the commission
pursuant to this paragraph shall specify a date by which the
information must be submitted to the commission and shall serve
to reopen the administrative record for the limited purpose of
receiving further information relating to the issues specified by
the commission in the request. Commission and department staff,
the petitioner, or any other person may submit information in
response to a request pursuant to this paragraph.

(d) The commission, in its discretion, may either close the public
hearing and continue the meeting on the petition for the purpose
of deliberation or continue both the public hearing and the meeting
on the petition to a subsequent date which is no later than 90 days
after the meeting scheduled pursuant to Section 2075, and subject
to applicable notice and agenda requirements. If the commission
closes the public hearing but continues the meeting for the purpose
of deliberation, a person shall not submit, and the commission
shall not receive, further information relating to the petition except
as provided in subdivision (c).

(e) At the meeting scheduled pursuant to Section 2075, or at a
continued meeting scheduled pursuant to subdivision (d), the
commission shall make one of the following findings:

(1) The petitioned action is not warranted, in which case the
finding shall be entered in the public records of the commission
and the petitioned species shall be removed from the list of
candidate species maintained pursuant to Section 2074.2.

(2) The petitioned action is warranted, in which case the
commission shall publish a notice of that finding and a notice of
proposed rulemaking pursuant to Section 11346.4 of the
Government Code, to add the species to, or remove the species
from, the list of endangered species or the list of threatened species.
Further proceedings of the commission on the petitioned action
shall be made in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.

begin delete

(f) This section shall remain in effect only until January 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2017, deletes or extends that date.

end delete

SEC. 8.  

Section 2075.5 of the Fish and Game Code, as added
by Section 10 of Chapter 387 of the Statutes of 2013, is repealed.

begin delete

2075.5.  

(a) At the meeting scheduled pursuant to Section 2075,
the commission shall make one of the following findings:

(1) The petitioned action is not warranted, in which case the
finding shall be entered in the public records of the commission
and the petitioned species shall be removed from the list of
candidate species maintained pursuant to Section 2074.2.

(2) The petitioned action is warranted, in which case the
commission shall publish a notice of that finding and a notice of
proposed rulemaking pursuant to Section 11346.4 of the
Government Code to add the species to, or remove the species
from, the list of endangered species or the list of threatened species.
Further proceedings of the commission on the petitioned action
shall be made in accordance with Chapter 3.5 (commencing with
Section 11340) of Part 1 of Division 3 of Title 2 of the Government
Code.

(b) This section shall become operative on January 1, 2017.

end delete

SEC. 9.  

Section 2115.5 of the Fish and Game Code is amended
to read:

2115.5.  

This article shall remain in effect only until January
1, begin delete 2017, end delete begin insert 2020, end insert and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, begin delete 2017, end delete begin insert 2020, end insert deletes or
extends that date. However, this section does not apply to a
recovery strategy that is approved or implemented pursuant to this
article on or before January 1, begin delete 2017, end delete begin insert 2020, end insert and those recovery
strategies, and any permits or memoranda of understanding relating
thereto, shall remain effective as if this article had not been
repealed.

SEC. 10.  

Section 2301 of the Fish and Game Code is amended
to read:

2301.  

(a) (1) Except as authorized by the department, a person
shall not possess, import, ship, or transport in the state, or place,
plant, or cause to be placed or planted in any water within the state,
dreissenid mussels.

(2) The director or his or her designee may do all of the
following:

(A) Conduct inspections of conveyances, which include vehicles,
boats and other watercraft, containers, and trailers, that may carry
or contain adult or larval dreissenid mussels. Included as part of
this authority to conduct inspections is the authority to temporarily
stop conveyances that may carry or contain adult or larval
dreissenid mussels on any roadway or waterway in order to conduct
inspections.

(B) Order that areas in a conveyance that contain water be
drained, dried, or decontaminated pursuant to procedures approved
by the department.

(C) Impound or quarantine conveyances in locations designated
by the department for up to five days or the period of time
necessary to ensure that dreissenid mussels can no longer live on
or in the conveyance.

(D) (i) Conduct inspections of waters of the state and facilities
located within waters of the state that may contain dreissenid
mussels. If dreissenid mussels are detected or may be present, the
director or his or her designee may order the affected waters or
facilities closed to conveyances or otherwise restrict access to the
affected waters or facilities, and shall order that conveyances
removed from, or introduced to, the affected waters or facilities
be inspected, quarantined, or disinfected in a manner and for a
duration necessary to detect and prevent the spread of dreissenid
mussels within the state.

(ii) For the purpose of implementing clause (i), the director or
his or her designee shall order the closure or quarantine of, or
restrict access to, these waters, areas, or facilities in a manner and
duration necessary to detect and prevent the spread of dreissenid
mussels within the state. No closure, quarantine, or restriction shall
be authorized by the director or his or her designee without the
concurrence of the Secretary of the Natural Resources Agency. If
a closure lasts longer than seven days, the department shall update
the operator of the affected facility every 10 days on efforts to
address the dreissenid infestation. The department shall provide
these updates in writing and also post these updates on the
department’s Internet Web site in an easily accessible manner.

(iii) The department shall develop procedures to ensure proper
notification of affected local and federal agencies, and, as
appropriate, the Department of Water Resources, the Department
of Parks and Recreation, and the State Lands Commission in the
event of a decision to close, quarantine, or restrict a facility
pursuant to this paragraph. These procedures shall include the
reasons for the closure, quarantine, or restriction, and methods for
providing updated information to those affected. These procedures
shall also include protocols for the posting of the notifications on
the department’s Internet Web site required by clause (ii).

(iv) When deciding the scope, duration, level, and type of
restrictions, and specific location of a closure or quarantine, the
director shall consult with the agency, entity, owner, or operator
with jurisdiction, control, or management responsibility over the
marina, boat launch facility, or other facility, in order to focus the
closure or quarantine to specific areas and facilities so as to avoid
or minimize disruption of economic or recreational activity in the
vicinity.

(b) (1) Upon a determination by the director that it would further
the purposes of this section, other state agencies, including, but
not limited to, the Department of Parks and Recreation, the
Department of Water Resources, the Department of Food and
Agriculture, and the State Lands Commission, may exercise the
authority granted to the department in subdivision (a).

(2) A determination made pursuant to paragraph (1) shall be in
writing and shall remain in effect until withdrawn, in writing, by
the director.

(c) (1) Except as provided in paragraph (2), Division 13
(commencing with Section 21000) of the Public Resources Code
does not apply to the implementation of this section.

(2) An action undertaken pursuant to subparagraph (B) of
paragraph (2) of subdivision (a) involving the use of chemicals
other than salt or hot water to decontaminate a conveyance or a
facility is subject to Division 13 (commencing with Section 21000)
of the Public Resources Code.

(d) (1) A public or private agency that operates a water supply
system shall cooperate with the department to implement measures
to avoid infestation by dreissenid mussels and to control or
eradicate any infestation that may occur in a water supply system.
If dreissenid mussels are detected, the operator of the water supply
system, in cooperation with the department, shall prepare and
implement a plan to control or eradicate dreissenid mussels within
the system. The approved plan shall contain the following
minimum elements:

(A) Methods for delineation of infestation, including both adult
mussels and veligers.

(B) Methods for control or eradication of adult mussels and
decontamination of water containing larval mussels.

(C) A systematic monitoring program to determine any changes
in conditions.

(D) The requirement that the operator of the water supply system
permit inspections by the department as well as cooperate with the
department to update or revise control or eradication measures in
the approved plan to address scientific advances in the methods
of controlling or eradicating mussels and veligers.

(2) If the operator of water delivery and storage facilities for
public water supply purposes has prepared, initiated, and is in
compliance with all the elements of an approved plan to control
or eradicate dreissenid mussels in accordance with paragraph (1),
the requirements of subdivision (a) do not apply to the operation
of those water delivery and storage facilities, and the operator is
not subject to any civil or criminal liability for the introduction of
dreissenid mussel species as a result of those operations. The
department may require the operator of a facility to update its plan,
and if the plan is not updated or revised as described in
subparagraph (D) of paragraph (1), subdivision (a) shall apply to
the operation of the water delivery and storage facilities covered
by the plan until the operator updates or revises the plan and
initiates and complies with all of the elements of the updated or
revised plan.

(e) Any entity that discovers dreissenid mussels within this state
shall immediately report the discovery to the department.

(f) (1) In addition to any other penalty provided by law, any
person who violates this section, violates any verbal or written
order or regulation adopted pursuant to this section, or who resists,
delays, obstructs, or interferes with the implementation of this
section, is subject to a penalty, in an amount not to exceed one
thousand dollars ($1,000), that is imposed administratively by the
department.

(2) A penalty shall not be imposed pursuant to paragraph (1)
unless the department has adopted regulations specifying the
amount of the penalty and the procedure for imposing and
appealing the penalty.

(g) The department may adopt regulations to carry out this
section.

(h) Pursuant to Section 818.4 of the Government Code, the
department and any other state agency exercising authority under
this section shall not be liable with regard to any determination or
authorization made pursuant to this section.

(i) This section shall remain in effect only until January 1, begin delete 2017, end delete
begin insert 2020, end insert and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2017, end delete begin insert 2020, end insert deletes or extends
that date.

SEC. 11.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.