BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: SB 448 HEARING DATE: April 14, 2009
AUTHOR: Pavley URGENCY: No
VERSION: April 13, 2009 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: California State Safe Harbor Agreement Program Act.
BACKGROUND AND EXISTING LAW
The state and federal endangered species acts (ESA) generally
provide a scientific basis for determining the biological status
of species that potentially face extinction. Although there are
differences between the federal and state acts, the overarching
intent of both is to regulate and impose mitigation activities
on activities that could contribute to the extirpation of
species. Under the California act, species whose survival are
imperiled may be categorized as "endangered" or "threatened" or
"candidate" and once categorized, the "take" of those species
may be prohibited unless authorized by a permit issued by the
appropriate regulatory agency. These permits are called
"incidental take" permits and authorize harm to listed species
that occurs "incidental" to other lawful activities such as
development, agriculture, and other private and public sector
activities. Mitigation requirements are generally imposed on
applicants for incidental take permits. In California, for
species listed under state law, that regulatory agency role
belongs to the California Department of Fish and Game.
The determination whether to list a species based on a review of
appropriate scientific data is assigned to the California Fish
and Game Commission.
The California Endangered Species Act (CESA) regulates the take
of listed species in several provisions.
The Fish and Game Code also authorizes voluntary programs that
encourage private landowners to undertake conservation efforts
for wildlife. One program focuses on wetlands, and one on
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waterfowl. A third, federally funded, focuses on landowner
incentives.
Unlike the regulations adopted pursuant to the federal
endangered species act, the California Endangered Species Act
and its regulations do not explicitly authorize "safe harbor"
agreements that embody voluntary agreements between landowners
and the Department of Fish and Game (DFG) for the conservation
of protected species.
DFG has begun using a provision in Sec. 2086 of the Fish and
Game Code to design safe harbor agreements in limited
circumstances. By its own terms, Sec. 2086 authorizes "voluntary
local programs" only for agricultural landowners. Also, any
incidental take of protected species must occur in the course of
"routine and ongoing" agricultural activities. Such activities
are defined in 14 CCR 786.1, a regulation adopted by DFG.
Sec. 2087 exempts the "accidental take" of listed species
resulting from acts that occur while farming or ranching; but
such take must also occur in the context of "otherwise lawful
and routine and ongoing agricultural activities."
PROPOSED LAW
This bill would enact a California State Safe Harbor Agreement
Program Act that would be comparable to the safe harbor programs
administered by the federal wildlife agencies under regulations
adopted pursuant to the federal ESA.
The bill contains findings affirming that voluntary programs
that allow landowners to manage their lands in ways that
contribute to the conservation goals of CESA should be
encouraged.. The program is specifically intended to increase
species populations, create new habitats, and to enhance
existing habitats. An additional purpose of the bill is not to
subject participating landowners to additional regulatory
restrictions as a result of their conservation efforts.
The obligations and benefits under this program are reciprocal.
Landowners achieve much greater flexibility to manage lands, are
granted incidental take authority, and assurances that no
further regulatory requirements will be imposed. From a
conservation perspective, the agreements require the
establishment of a scientific baseline. Over the duration of the
agreement, the landowner will manage his or her lands in order
to provide a "net conservation benefit" to the species. When the
agreement is terminated, the species will be in a condition that
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is at least as good as, and no worse than, baseline conditions.
Specific provisions in SB 448 include:
1. Baseline conditions will be established for the species
covered by the agreement. DFG will establish or approve the
baseline, which will be based on objective scientific
methodologies. The baseline habitat surveys may be
conducted by a non-DFG individual who has expertise with
the species and who has been approved by the department.
2. The program may be used by private landowners, federal
entities, and others. At the conclusion of the agreement, a
"return to baseline" is authorized. This is defined as
returning the species population or acres of habitat to
baseline, excluding catastrophic events beyond the control
of the landowner.
3. "Net conservation benefit" is defined as the results of
management activities that cumulatively improve the
condition of the species, but that exclude catastrophic
events generally outside the control of the landowner such
as floods and wildfires and that exclude adverse effects
attributable to the incidental take allowed by the
agreement.
4. To apply for a safe harbor agreement and to obtain
incidental take authority, a landowner must apply to the
department. The department must find that the agreement
will result in a net conservation benefit to the species.
Any incidental take must not jeopardize the continued
existence of the species as defined in Sec. 2080(c) of the
Fish and Game Code. DFG must establish a monitoring program
and determine that adequate funding has been provided to
the monitoring effort.
5. The landowner shall provide a map of the area that will
be covered, the species that are to be covered, a
description of the current and future management of the
lands that will be covered, the proposed duration of the
agreement, the proposed net conservation benefit that will
be achieved, the incidental take that may occur, and a
description of the monitoring program.
6. The bill provides for amendments to the agreements. New
landowners may assume the obligations of the agreements, or
withdraw from the agreements pursuant to the terms of the
agreement.
7. Landowners will notify the department when incidental
take may occur, when the landowner plans to return to
baseline, and if any transactions regarding ownership of
the property occurred. In each of these situations, DFG
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retains the right to remove the species. DFG is obligated
to give notice to landowners of its intent to undertake any
such activities, and a process is established through which
landowners retain the right to reject, three times, the
individuals who DFG names to access their land. Should that
happen, the fourth designee by the DFG would have access.
Failure by a landowner to object within 7 days is
considered consent.
8. DFG is authorized to develop regulations on the
suspension and revocation of these agreements and other
provisions of the bill. It is also authorized to develop
guidelines to incorporate safe harbor provisions into its
existing voluntary local program.
9. Landowners are to be provided 7 days notice by DFG when
it intends to review the baseline, monitor the agreement,
or remove species proposed to be incidentally taken. The
landowner may approve the individuals who access the
property. The same landowner approval process of the DFG
designees who would access the property in #7 above are
restated here.
10. The bill provides a
mechanism for a consistency determination to be made by DFG
that can provide coverage to a landowner who has a federal
safe harbor agreement.
ARGUMENTS IN SUPPORT
According to the author and the sponsor, it is important to
create an explicit authorization for a safe harbor program under
state law. While federal agencies are actively engaged in
working with landowners in California to create safe harbor
agreements for federally listed species, landowners and DFG are
handicapped by the silence of state law on this matter. The
author believes that landowners would benefit from the ability
to work simultaneously with state and federal wildlife agencies
on safe harbor agreements for species that may be listed under
both statutes.
The author and sponsor agree that Section 2086 provides limited
authority to DFG to create "safe harbor" provisions. However,
legislation is clearly needed not only to provide certainty to
landowners that the department is acting with complete
authority, but also to establish a conservation benchmark ("net
conservation benefit") that is not mentioned in Sec. 2086.
SUPPORT
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Defenders of Wildlife (sponsor)
Audubon California
California Farm Bureau Federation - if amended
California Outdoor Heritage Alliance
Nature Conservancy
OPPOSITION
None Received
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