BILL NUMBER: SB 448	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JUNE 11, 2009
	AMENDED IN SENATE  APRIL 13, 2009

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 amended, Pavley. California State Safe Harbor Agreement
Program Act.
   Existing law establishes various programs designed to conserve and
protect endangered species and wildlife. 
   Existing law, the California Endangered Species Act (CESA),
prohibits a person from importing, exporting, or taking, possessing,
purchasing, or selling within the state, any species, or any part or
product thereof, that the Fish and Game Commission determines to be
an endangered species or a threatened species, with specified
exceptions. 
   This bill would enact the California State Safe Harbor Agreement
Program Act  (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.
    The bill would authorize the department to authorize
specified acts that are otherwise prohibited pursuant to the CESA
pursuant to a safe harbor agreement entered into under the act. 

   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 nonfederal 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 with respect to endangered, threatened, or candidate
species existing on their land. The program established by this
article is designed to increase species populations, 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   populations  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.  "Agreement" includes an
agreement with an individual landowner and a programmatic agreement.

   (b) "Baseline conditions" means the existing estimated population
size  and   ,  the extent and quality of
habitat  ,   or both 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,   , and shall be  based
on  the best available science and  objective scientific
methodologies. For purposes of establishing baseline conditions, a
 qualified  person that is not employed by the department
may conduct habitat surveys, if that person  is qualified,
 has appropriate species expertise  ,  and
has been approved by the department.
   (c) "Department" means the Department of Fish and Game, acting
through its director or his or her designee.
   (d) "Landowner" means any  person or  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) "Programmatic agreement" means a state safe harbor agreement
issued to a governmental or nongovernmental program administrator.
The program administrator for a programmatic agreement shall work
with landowners and the department to implement the agreement and
shall be responsible for ensuring compliance with the terms of the
agreement.  
   (i) "Qualified person" means a person with species expertise who
has been approved by the department.  
   (h) 
    (j)  "Return to baseline" means, at the termination of
an agreement, activities undertaken by the landowner to return the
species population or  acres   extent or quality
 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,  including a programmatic
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  there is 
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  landowner's  current
land and water  uses for the geographic area  
management practices that   affect the habitat of the
covered species  for which the landowner requests incidental
take authorization.
   (d) A detailed description of the  landowner's  future
uses of land or water  for the geographic area  
management practices that affect the habitat of the covered species
 for which the landowner requests incidental take authorization.
This description shall be used only for informational and planning
purposes.
   (e) 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.
   (f) A detailed description of the proposed management actions and
the timeframe for implementing them.
   (g) 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.
   (h) 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) (1) If the department receives any notice described in
 this section   subdivision (a)  , 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.
   (2) The department shall provide notice to the landowner at least
seven days prior to accessing the land or water for the purposes of
paragraph (1). The notice shall identify  the persons
  each person  selected by the department, its
contractors, or agents to access the land or water.
   (3) Notwithstanding paragraph (1), during the seven-day 
notice period, a landowner may object, in writing, to 
the   a  person selected to access the land or
water. If a landowner objects, another person shall be selected by
the department, its contractors, or agents, and notification shall be
provided to the landowner pursuant to paragraph (2). However, if a
landowner objects to  the   a  selection on
 three   two  successive occasions, the
landowner shall be deemed to consent to access to the land or water
by a person selected by the department, its contractors, or agents.
Failure by a landowner to object to the selection within the
seven-day period shall be deemed consent to access  the
  a  land or water by the person selected by the
department, its contractors, or agents.
   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  by  suspension and revocation regulations adopted
by the department.
   2089.20.  (a) 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.
   (b) The department shall provide notice to the landowner at least
seven days before accessing the land or water for the purposes of
subdivision (a). The notice shall identify  the persons
  each person  selected by the department, its
contractors, or agents to access the land or water.
   (c) Notwithstanding subdivision (a), during the seven-day 
notice  period, a landowner may object, in writing, to 
the   a  person selected to access the land or
water. If a landowner objects, another person shall be selected by
the department, its contractors, or agents, and notification shall be
provided to the landowner pursuant to subdivision (b). However, if a
landowner objects to  the  a  selection on
 three   two  successive occasions, the
landowner shall be deemed to consent to access to the land or water
by a person selected by the department, its contractors, or agents.
Failure by a landowner to object to the selection within the
seven-day period shall be deemed consent to access the land or water
by  the   a  person selected by the
department, its contractors, or agents.
   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   any person authorized by that
agreement 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). 
   2089.23.  (a) A landowner that owns land that abuts a property
enrolled in a state safe harbor agreement shall not be required, for
purposes of an incidental take permit, to undertake the management
activities set forth in the state safe harbor agreement, if all of
the following conditions are met:
   (1) The neighboring landowner allows the department to determine
baseline conditions on the property.
   (2) The neighboring landowner agrees to maintain the baseline
conditions for the duration specified in the safe harbor agreement.
   (3) The department determines that allowing the neighboring
landowner to receive an incidental take permit for the abutting
property does not undermine the net conservation benefit
determination made by the department in the approval of the safe
harbor agreement.
   (4) The take authorized by the department will not jeopardize the
continued existence of the species. This determination shall be made
in accordance with subdivision (c) of Section 2081.
   (b) (1) Unless the department determines that it is inappropriate
to do so based on the species listed in the permit, or any other
factors, the neighboring landowner shall provide the department with
at least 60 days advance notice of any of the following:
   (A) Any incidental take that is anticipated to occur under the
permit.
   (B) The neighboring landowner's plan to return to baseline
conditions.
   (C) Any plan to transfer or alienate the neighboring landowner's
interest in the land or water.
   (2) (A) If the department receives any notice described in
paragraph (1), the neighboring 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.
   (B) The department shall provide notice to the neighboring
landowner at least seven days before accessing the land or water for
the purposes of subparagraph (A). The notice shall identify each
person selected by the department, its contractors, or agents to
access the land or water.
   (C) Notwithstanding subparagraph (B), during the seven-day notice
period, the neighboring landowner may object, in writing, to a person
selected to access the land or water. If the neighboring landowner
objects, another person shall be selected by the department, its
contractors, or agents, and notification shall be provided to the
neighboring landowner pursuant to subparagraph (B). However, if the
neighboring landowner objects to a selection on two successive
occasions, the neighboring landowner shall be deemed to consent to
access to the land or water by a person selected by the department,
its contractors, or agents. Failure by the neighboring landowner to
object to the selection within the seven-day notice period shall be
deemed consent to access the land or water by the person selected by
the department, its contractors, or agents. 
   2089.24.  The department may promulgate regulations to implement
this article.