BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 448|
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THIRD READING
Bill No: SB 448
Author: Pavley (D)
Amended: 4/13/09
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE : 10-0, 4/14/09
AYES: Pavley, Cogdill, Hollingsworth, Huff, Kehoe, Leno,
Padilla, Simitian, Wiggins, Wolk
NO VOTE RECORDED: Benoit
SENATE APPROPRIATIONS COMMITTEE : 12-0, 4/27/09
AYES: Kehoe, Cox, Corbett, Denham, DeSaulnier, Hancock,
Leno, Oropeza, Runner, Walters, Wolk, Yee
NO VOTE RECORDED: Wyland
SUBJECT : California State Safe Harbor Agreement Program
Act
SOURCE : Defenders of Wildlife
DIGEST : This bill creates a safe harbor program, under
which landowners could voluntarily enroll in a program to
protect endangered species on their property. The
landowner would agree to provide a net conservation benefit
to endangered species over the lifetime of the agreement.
In return, the landowner would be allowed flexibility in
the management of his or her lands, including the authority
for the incidental "take" of endangered species.
ANALYSIS : The state and federal endangered species acts
CONTINUED
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(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 ESA, 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
Department of Fish and Game (DFG).
The determination whether to list a species based on a
review of appropriate scientific data is assigned to the
Fish and Game Commission.
The California ESA 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 waterfowl. A third, federally funded, focuses on
landowner incentives.
Unlike the regulations adopted pursuant to the federal ESA,
the California ESA and its regulations do not explicitly
authorize "safe harbor" agreements that embody voluntary
agreements between landowners and the DFG for the
conservation of protected species.
DFG has begun using a provision in Section 2086 of the Fish
and Game Code to design safe harbor agreements in limited
circumstances. By its own terms, Section 2086 authorizes
"voluntary local programs" only for agricultural
landowners. Also, any incidental take of protected species
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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.
Section 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."
This bill enacts 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.
This bill contains findings affirming that voluntary
programs that allow landowners to manage their lands in
ways that contribute to the conservation goals of the
California ESA 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/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 is at least as good
as, and no worse than, baseline conditions.
Specific provisions in this bill 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
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expertise with the species and who has been approved by
the DFG.
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
DFG. The DFG 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 Section 2080(c)
of the Fish and Game Code. The 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. This 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
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the property occurred. In each of these situations, DFG
retains the right to remove the species. The 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 DFG would have access. Failure by a
landowner to object within seven days is considered
consent.
8. The 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 seven 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 DFG designees who would access the property
in #7 above are restated here.
10.This 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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11 2011-12 Fund
Developing agreements Unknown, probably less than
$100 per year Special*
* Fish and Game Preservation Fund
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SUPPORT : (Verified 4/29/09)
Defenders of Wildlife (source)
Audubon California
California Outdoor Heritage Alliance
Nature Conservancy
ARGUMENTS IN SUPPORT : According to the author's office
and the bill's 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's office 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's office and bill's 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 DFG is
acting with complete authority, but also to establish a
conservation benchmark ("net conservation benefit") that is
not mentioned in Section 2086.
CTW:mw 4/29/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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