BILL NUMBER: AB 2420	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 24, 2010
	AMENDED IN ASSEMBLY  MARCH 16, 2010

INTRODUCED BY   Assembly Member Huffman

                        FEBRUARY 19, 2010

   An act to amend Section 2080.1 of the Fish and Game Code, relating
to protected species.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2420, as amended, Huffman. Protected species: incidental take:
consistency determinations. 
   The Federal Endangered Species Act of 1971 (FESA) directs federal
agencies, in consultation with the Secretary of the Interior or the
Secretary of Commerce, as appropriate, to carry out conservation
programs for endangered species listed under FESA. FESA generally
prohibits activities affecting these threatened and endangered
species unless authorized by a permit from the United States Fish and
Wildlife Service or the National Marine Fisheries Service
(permitting agencies), as appropriate. FESA requires a federal agency
authorizing, funding, or carrying out an action (agency action) to
consult with a permitting agency on any actions that might affect
listed species. A biological opinion is the permitting agency's
written report describing the agency action and how it will affect
the species or its critical habitat. If the permitting agency
determines that take will occur incidental to the agency action, an
incidental take statement is developed that contains reasonable and
prudent measures necessary to minimize that impact and terms and
conditions to implement those measures. The incidental take statement
accompanies the biological opinion. Under FESA, incidental take
permits are required when nonfederal activities will result in take
of FESA listed species. FESA prohibits the issuance of an incidental
take permit unless the applicant submits a conservation plan. 
   Under the California Endangered Species Act (CESA), if any person
obtains from the Secretary of the Interior or the Secretary of
Commerce an incidental take statement or incidental take permit
pursuant to the federal Endangered Species Act of 1973 that
authorizes the taking of an endangered species or threatened species
listed pursuant to the federal act that is an endangered species,
threatened species, or candidate species pursuant to CESA, no further
authorization or approval is necessary under CESA for that person to
take that species, if that person notifies the Director of Fish and
Game, as specified, and the director determines that the statement or
permit is consistent with CESA.
   This bill would  revise those provisions to require that
both a biological opinion and an incidental take statement or a
conservation plan and an incidental take permit be obtained. The bill
would require additional information to be included in the notice to
the director, and would give the director 7 days to determine if the
notice is complete. The bill would require the director, if the
director determines that the notice is not complete, to immediately
provide a written response to the person submitting the notice that
sets forth the deficiencies in the notice   require the
inclusion in the notice of a specified additional information,
including copy of the biological opinion along with an incidental
take statement or a copy of the conservation plan with an incidental
take permit  . The bill would authorize the department to adopt
regulations to implement those revised incidental take and
consistency determination provisions.
   Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

  SECTION 1.  Section 2080.1 of the Fish and Game Code is amended to
read:
   2080.1.  (a) Notwithstanding any other provision of this chapter,
or Chapter 10 (commencing with Section 1900) or Chapter 11
(commencing with Section 1925) of Division 2, but subject to
subdivision (c), if any person obtains from the Secretary of the
Interior or the Secretary of Commerce a biological opinion and an
incidental take statement pursuant to Section 1536 of Title 16 of the
United States Code or a conservation plan and an incidental take
permit pursuant to Section 1539 of Title 16 of the United States Code
that authorizes the taking of an endangered species or a threatened
species that is listed pursuant to Section 1533 of Title 16 of the
United States Code and that is an endangered species, threatened
species, or a candidate species pursuant to this chapter, no further
authorization or approval is necessary under this chapter for that
person to take that endangered species, threatened species, or
candidate species identified in, and in accordance with, the
biological opinion and the incidental take statement, or the
conservation plan and the incidental take permit, if that person
receives a determination of consistency in accordance with
subdivision (c) after doing both of the following:
   (1) Notifying the director in writing that the person has received
a biological opinion and an incidental take statement or a
conservation plan and an incidental take permit issued pursuant to
the federal Endangered Species Act of 1973 (16 U.S.C.A. Sec. 1531 et
seq.).
   (2) Including in the notice to the director:
   (A) References to the required measures in the biological opinion
and the incidental take statement or the conservation plan and the
incidental take permit that meet the minimization, full mitigation,
funding, and compliance monitoring requirements of subdivision (b) of
Section 2081.
   (B) A copy of the biological opinion and the incidental take
statement or the conservation plan and the incidental take permit.
   (b) Upon receipt of the notice specified in paragraphs (1) and (2)
of subdivision (a), the director shall  have seven days to
determine if the notice is complete. If the director determines that
the notice is complete, the director shall  immediately have
published in the General Public Interest section of the California
Regulatory Notice Register the receipt of that notice.  If
the director determines that the notice is not complete, the director
shall immediately provide a written response to the person
submitting the notice that sets forth the deficiencies in the notice.

   (c) Within 30 days after the director has received a complete
notice, as described in subdivision (a), the director shall determine
whether the biological opinion and the incidental take statement or
the conservation plan and the incidental take permit are consistent
with this chapter. If the director determines within that 30-day
period, based upon substantial evidence, that the biological opinion
and the incidental take statement or the conservation plan and the
incidental take permit are not consistent with this chapter, then the
taking of that species may only be authorized pursuant to this
chapter.
   (d) The director shall immediately publish the determination
pursuant to subdivision (c) in the General Public Interest section of
the California Regulatory Notice Register. A determination pursuant
to subdivision (c) is effective upon publication in accordance with
this subdivision.
   (e) Unless deleted or extended by a later enacted statute that is
chaptered before the date this section is repealed, this section
shall remain in effect only until, and is repealed on, the effective
date of an amendment to Section 1536 or Section 1539 of Title 16 of
the United States Code that alters the requirements for issuing a
biological opinion and an incidental take statement or a conservation
plan and an incidental take permit, as applicable.
   (f) The department may adopt regulations to implement this
section.