BILL NUMBER: SB 448 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Pavley
FEBRUARY 26, 2009
An act to add Article 3.7 (commencing with Section 2089.2) to
Chapter 1.5 of Division 3 of the Fish and Game Code, relating to fish
and wildlife.
LEGISLATIVE COUNSEL'S DIGEST
SB 448, as introduced, Pavley. California State Safe Harbor
Agreement Program Act.
Existing law establishes various programs designed to conserve and
protect endangered species and wildlife.
This bill would enact the California State Safe Harbor Agreement
Program Act, which would establish a program to encourage landowners
to manage their lands voluntarily, by means of state safe harbor
agreements approved by the Department of Fish and Game, to benefit
endangered, threatened, or candidate species without being subject to
additional regulatory restrictions as a result of their conservation
efforts.
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. Article 3.7 (commencing with Section 2089.2) is added
to Chapter 1.5 of Division 3 of the Fish and Game Code, to read:
Article 3.7. California State Safe Harbor Agreement Program
Act
2089.2. (a) This article shall be known and may be cited as the
California State Safe Harbor Agreement Program Act.
(b) The Legislature finds that a key to the goals set forth in
this article of conserving, protecting, restoring, and enhancing
endangered, threatened, and candidate species, is their habitat. A
significant portion of the state's current and potential habitat for
these species exists on property owned by private citizens,
municipalities, tribes, and other nonstate and federal entities.
Conservation efforts on these lands and waters are critical to help
these declining species. Using a collaborative stewardship approach
to these lands and waters will help ensure the success of these
efforts.
(c) The purpose of this article is to establish a program that
will encourage landowners to manage their lands voluntarily to
benefit endangered, threatened, or candidate species and not be
subject to additional regulatory restrictions as a result of their
conservation efforts.
(d) This article does not relieve landowners of any legal
obligation to avoid, minimize, or mitigate impacts to endangered,
threatened, or candidate species existing on their land. The program
established by this article is designed to increase the number of
species, create new habitats, and to enhance existing habitats.
Although this increase may be temporary or long-term, California
state safe harbor agreements shall not reduce the existing number of
species present at the time the baseline is established by the
department.
2089.4. As used in this article, the following definitions apply:
(a) "Agreement" means a state safe harbor agreement approved by
the department pursuant to this article.
(b) "Baseline conditions" means the existing estimated population
size and the extent and quality of habitat for the species on the
land to be enrolled in the agreement that sustain seasonal or
permanent use by the covered species. Baseline conditions shall be
determined by the department in consultation with the applicant and
shall be at least the estimated population size and extent and
quality of habitat for the covered species at the time when the
agreement is executed. Baseline conditions shall be established or
approved by the department, based on objective scientific
methodologies.
(c) "Department" means the Department of Fish and Game, acting
through its director or his or her designee.
(d) "Landowner" means any nonstate or federal entity or entities
that lawfully hold any interest in land or water to which they are
committing to implement the requirements of this article.
(e) "Management actions" means activities on the enrolled land or
water that are reasonably expected by the department to provide a net
benefit to the species or their habitat, or both.
(f) "Monitoring program" means a program established or approved
by the department in accordance with subdivision (f) of Section
2089.6.
(g) "Net conservation benefit" means the cumulative benefits of
the management activities identified in the agreement that provide
for an increase in a species' population or the enhancement,
restoration, or maintenance of covered species' suitable habitats
within the enrolled property. Net conservation benefit shall take
into account the length of the agreement, any offsetting adverse
effects attributable to the incidental taking allowed by the
agreement, and other mutually agreed upon factors such as floods,
unplanned fires, and catastrophic events. Net conservation benefits
shall be sufficient to contribute either directly or indirectly to
the recovery of the covered species. These benefits include, but are
not limited to, reducing fragmentation and increasing the
connectivity of habitats, maintaining or increasing populations,
enhancing and restoring habitats, and buffering protected areas.
(h) "Return to baseline" means, at the termination of an
agreement, activities undertaken by the landowner to return the
species population or acres of habitat to baseline, excluding
catastrophic events such as floods, unplanned fires, or earthquakes,
and other factors mutually agreed upon prior to permit issuance and
that are beyond the control of the landowner.
2089.6. In addition to the other provisions of this article, the
department may authorize acts that are otherwise prohibited pursuant
to Section 2080 through an agreement, if all the following conditions
are met:
(a) The department receives a complete application containing all
of the information described in Section 2089.8.
(b) The take is incidental to an otherwise lawful activity.
(c) The department finds that the implementation of the agreement
is reasonably expected to provide a net conservation benefit to the
species listed in the application. This finding shall be based, at a
minimum, upon the determination that the agreement is of sufficient
duration and has appropriate assurances to realize these benefits.
(d) The take authorized by the agreement will not jeopardize the
continued existence of the species. This determination shall be made
based on the provisions of subdivision (c) of Section 2081.
(e) The department finds that the landowner has agreed, to the
maximum extent practicable, to avoid or minimize any incidental take
authorized in the agreement, including returning to baseline.
(f) The department has established or approved a monitoring
program, based upon objective scientific methodologies, to provide
information for the department to evaluate the effectiveness and
efficiency of the agreement program, including whether the net
conservation benefits set forth in the agreement are being achieved
and whether the participating landowner is implementing the
provisions of the agreement.
(g) The department has determined that sufficient funding is
ensured, for it or its contractors or agents, to determine baseline
conditions on the property, for the landowner to carry out management
actions, and for monitoring for the duration of the agreement.
(h) Implementation of the agreement will not be in conflict with
any existing department-approved conservation or recovery programs
for the species covered by the agreement.
2089.8. The landowner shall submit all of the following:
(a) A detailed map depicting the land proposed to be enrolled in
the agreement.
(b) The common and scientific names of the species for which the
landowner requests incidental take authorization.
(c) A detailed description of the current land and water uses for
the geographic area proposed to be enrolled and the landowner's
objectives for future uses of this land or water.
(d) The proposed duration of the agreement that is sufficient to
provide a net conservation benefit to the species covered in the
permit and an explanation of the basis for this conclusion.
(e) A detailed description of the proposed management actions and
the timeframe for implementing them.
(f) A description of the possible incidental take that may be
caused by the management actions and of the anticipated species
populations and habitat changes over the duration of the permit.
(g) A detailed description of the proposed monitoring program.
2089.10. If an agreement has been approved and the department
finds that the agreement is being properly implemented, the
department shall allow the landowner to alter or modify the enrolled
property, even if that alteration or modification will result in the
incidental take of a listed species, to the extent that the
alteration or modification returns the species to baseline
conditions.
2089.12. (a) Unless the department determines that it is
inappropriate to do so based on the nature of the management actions
being proposed, the species listed in the permit, or other factors,
the agreement shall require that the landowner provide the department
with at least 60 days advance notice of any of the following:
(1) Any incidental take that is anticipated to occur under the
agreement.
(2) The landowner's plan to return to baseline at the end of the
agreement.
(3) Any plan to transfer or alienate the landowner's interest in
the land or water.
(b) If the department receives any notice described in this
section, the landowner shall provide the department, its contractors,
or agents with access to the land or water for purposes of safely
removing or salvaging the species.
2089.14. An agreement may be amended with the mutual consent of
the landowner and the department.
2089.16. If a landowner seeks to sell, transfer, or otherwise
alienate the land or water enrolled in the agreement during the term
of the agreement, the person or entity assuming that interest in the
property shall (a) assume the existing landowner's duties under the
agreement, (b) enter into a new agreement with the department, or (c)
withdraw from an existing agreement under the terms provided in the
agreement, as approved by the department.
2089.18. The suspension and revocation of the agreement shall be
governed suspension and revocation regulations adopted by the
department.
2089.20. This section does not provide the public a right of
entry onto the enrolled land or water. The landowner shall provide
the department, its contractors, or agents with access to the land or
water proposed to be enrolled in the agreement to develop the
agreement, determine the baseline conditions, monitor the
effectiveness of management actions, or safely remove or salvage
species proposed to be taken.
2089.22. (a) If a federal safe harbor agreement has been approved
pursuant to applicable provisions of federal law and the federal
safe harbor agreement contains species that are endangered,
threatened, or are candidate species pursuant to this chapter, no
further authorization or approval is necessary under this article for
that person to take the species identified in and in accordance with
the federal Safe Harbor Agreement, if that person and the department
follow all of the procedures specified in Section 2080.1, except
that the determination of consistency shall be made by the department
based only on the issuance criteria contained in this article.
(b) The department may adopt nonregulatory guidelines to clarify
how the provisions of this chapter may be used in connection with
voluntary local programs for routine and ongoing agricultural
activities adopted pursuant to Article 3.5 (commencing with Section
2086) and natural community conservation plans adopted pursuant to
Chapter 10 (commencing with Section 2800).
2089.24. The department may promulgate regulations to implement
this article.