BILL ANALYSIS
SB 448
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SENATE THIRD READING
SB 448 (Pavley)
As Amended July 9, 2009
Majority vote
SENATE VOTE :35-0
WATER, PARKS & WILDLIFE 12-0
APPROPRIATIONS 16-0
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|Ayes:|Huffman, Fuller, |Ayes:|De Leon, Nielsen, |
| |Arambula, | |Ammiano, |
| |Tom Berryhill, | |Charles Calderon, Coto, |
| |Blumenfield, Caballero, | |Davis, Duvall, Fuentes, |
| |Fletcher, Krekorian, | |Hall, Harkey, Miller, |
| |Bonnie Lowenthal, John A. | |John. A. Perez, Skinner, |
| |Perez, Salas, Yamada | |Solorio, Audra |
| | | |Strickland, Torlakson |
|-----+--------------------------+-----+--------------------------|
| | | | |
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SUMMARY : Enacts the California State Safe Harbor Agreement
Program Act. Specifically, this bill :
1)Authorizes the Department of Fish and Game (DFG) to authorize
acts that would otherwise be prohibited as illegal takings
under the California Endangered Species Act (CESA) through a
safe harbor agreement if the following conditions are met:
a) DFG receives an application containing specified
information;
b) The take is incidental to an otherwise lawful activity;
c) DFG finds that the agreement is reasonably expected to
provide a "net conservation benefit" to the species listed;
d) The take will not jeopardize the existence of the
species;
e) The landowner agrees to avoid or minimize any incidental
take, including returning to baseline;
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f) DFG establishes or approves a monitoring program, as
specified;
g) DFG determines sufficient funding is ensured to
determine baseline conditions, and there is sufficient
funding for the landowner to carry out management and
monitoring for the duration of the agreement; and,
h) The agreement is not in conflict with any existing
conservation or recovery programs for the species covered.
2)Requires that the application submitted by the landowner
include detailed information, as specified, including a
detailed map, the list of species for which take authorization
is requested, and detailed descriptions of the landowner's
land and water management practices that affect the habitat of
the covered species, proposed management and monitoring, the
proposed duration of the agreement, and other information
required by DFG.
3)Allows for a property enrolled in an agreement to be altered
or modified if the agreement is being properly implemented and
the alteration returns the species to baseline conditions.
4)Requires the landowner, subject to certain exceptions, to
notify DFG at least 60 days in advance of any expected
incidental take, of a plan by the landowner to return to
baseline at the end of the agreement, or of any plan to
transfer the landowner's interest.
5)Requires the landowner to provide DFG with access to remove or
salvage the species, to develop the agreement, to determine
baseline conditions, and to monitor management. Requires DFG
to provide notice to the landowner at least seven days prior
to accessing the land or water, and allows the landowner to
object to the specific person selected by DFG to access the
property, subject to specified conditions. The 60 day notice
required before take occurs is tolled if the owner objects to
the person selected to access the property.
6)Contains several provisions protecting landowners from
liability for injury as a result of granting access as
required by this bill. Specifically, provides that this bill
does not create a duty of care or a ground of liability for
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injury to person or property, that the landowner is not
required to maintain property in a safe condition for DFG to
access or to provide a warning to DFG of hazardous conditions,
and that the landowner shall not be liable for injury and does
not owe a duty of care to DFG. Provides that allowing access
as required by this bill shall not be construed as an
assurance the land or water is safe, or as an assumption of
responsibility or liability for injury to the person granted
access.
7)Provides that this bill does not limit liability for injury in
the case of willful or malicious failure to guard or warn of a
dangerous condition, or in the case of an express invitation
beyond the access required to be provided by this bill.
8)Allows an agreement to be amended by mutual consent.
9)Allows for incidental take under a federal safe harbor
agreement if certain procedures are followed.
10)Authorizes DFG to promulgate regulations to implement this
bill, and to adopt nonregulatory guidelines to clarify use of
this bill with regard to voluntary agricultural activities and
natural community conservation plans.
11)Defines various terms for purposes of this bill, and states
legislative findings regarding the importance of habitat and
conservation efforts to recovery of endangered species, a
significant portion of which are on private lands. States
that the purpose of this bill is to establish a program that
will encourage landowners to voluntarily manage their lands to
benefit endangered or threatened species without additional
regulatory restrictions.
12)States that this bill does not relieve landowners of any
legal obligation with respect to endangered, threatened or
candidate species existing on their land, and that the program
is designed to increase species populations, create new
habitats, and enhance existing habitats. Further states that
although the safe harbor agreements may be temporary they
shall not reduce the existing number of species present at the
time the baseline is established.
13)Allows neighboring landowners who own land that abuts
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property enrolled in a safe harbor agreement to secure an
incidental take permit without undertaking the management
activities set forth in the safe harbor agreement if certain
conditions are met.
14)Prohibits DFG from releasing or disclosing proprietary
information except under specified circumstances, including
for enforcement, to provide technical or financial assistance,
if the owner has given consent, or in statistical or aggregate
form without identifying information.
15)Requires DFG to maintain a list of qualified persons and
organizations who have worked with DFG on approved agreements
and serving as program administrators.
16)Contains a sunset clause providing that this bill shall be
repealed on January 1, 2020.
EXISTING LAW :
1)Provides under CESA and the federal Endangered Species Act
(ESA) for the listing and protection of species determined
through biological scientific analysis to be endangered or
threatened with extinction. Generally prohibits the take of
species listed as threatened or endangered unless authorized
by an incidental take permit. Requires mitigation of adverse
impacts to listed species as a condition of receiving
incidental take authorization.
2)Under federal law, provides for voluntary safe harbor
agreements between landowners and wildlife agencies for
conservation of protected species.
3)Under state law, authorizes locally designed voluntary
programs for routine and ongoing agricultural activities on
farms that encourage wildlife habitat.
4)Under state law, exempts the accidental take of candidate,
threatened or endangered species that occurs in the course of
otherwise lawful routine and ongoing agricultural activities,
but only until January 1, 2011.
FISCAL EFFECT : Ongoing annual costs of an unknown amount,
likely less than $100,000, largely depending on the number of
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safe harbor agreements entered into by DFG (Fish and Game
Preservation Fund).
COMMENTS : This bill authorizes safe harbor agreements for
incidental take of species listed under CESA, similar to the
safe harbor agreements administered by federal wildlife agencies
under federal ESA regulations. Safe harbor agreements are
voluntary agreements between landowners and regulatory agencies
for conservation of protected species. Unlike the federal ESA
regulations, California law does not explicitly authorize safe
harbor agreements under CESA.
According to the author, one of the challenges faced by the
state in protecting endangered, threatened or candidate plant
and animal species, is that much of the habitat for these
species is on private land. For these species to recover, it is
essential for the state to be able to work cooperatively and
collaboratively with landowners to protect species and the
health of the state's biota on non-state lands. Landowners,
however, can be discouraged from conservation efforts for fear
that such efforts will attract endangered, threatened or
candidate species and result in regulation or limits on the use
of their property. The author has introduced this bill to
provide landowners with some assurance that they will not be
penalized for their conservation efforts.
Fish and Game Code Section 2086 authorizes voluntary programs
for routine and ongoing agricultural activities on farms or
ranches that encourage habitat for wildlife. It could be argued
this section already provides limited authority for safe harbor
agreements, however, this section is limited to routine and
ongoing agricultural activities. The author and sponsor agree
that Section 2086 provides limited authority to DFG to create
safe harbor agreements, but believe that legislation is needed
not only to provide certainty to landowners that DFG is acting
with complete authority, but also to establish a conservation
benchmark, or net conservation benefit.
This bill states that its purpose 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. The program is designed to increase
species populations, create new habitats and enhance existing
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habitats, and provides that while the increase may be temporary
it shall not reduce the baseline number of the species.
The obligations and benefits under the program are reciprocal.
Landowners achieve greater flexibility to manage lands, and are
granted incidental take authority and assurances that no further
regulatory requirements will be imposed. On the other hand,
from a conservation perspective, the agreements require the
establishment of a scientific baseline, and require the
landowner to manage his or her lands over the duration of the
agreement in order to provide a net conservation benefit to the
species. When the agreement is terminated, the species should
be in a condition that is at least as good as, and no worse
than, the baseline conditions.
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.
Landowners could 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.
Supporters of this bill note that safe harbor agreements were
created under federal regulations several years ago and have
become an important tool in promoting conservation on private
lands, with more than four million acres of land now enrolled in
these federal agreements. They also note that while DFG has
relied on interpretations of CESA to issue take permits and is
in the process of developing the first Voluntary Landowners
Agreement, these existing mechanisms have not provided a good
fit with the federal safe harbor program. Supporters believe
this bill will encourage landowners to take positive actions,
and will benefit both declining species and landowners.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096
FN: 0001950
SB 448
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