BILL ANALYSIS
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UNFINISHED BUSINESS
Bill No: SB 448
Author: Pavley (D)
Amended: 7/9/09
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
SENATE FLOOR : 35-0, 5/6/09 (Consent)
AYES: Alquist, Ashburn, Benoit, Calderon, Cogdill,
Corbett, Correa, Cox, Denham, Ducheny, Dutton, Florez,
Hancock, Harman, Hollingsworth, Huff, Kehoe, Leno, Liu,
Lowenthal, Maldonado, Negrete McLeod, Oropeza, Padilla,
Pavley, Romero, Simitian, Steinberg, Strickland, Walters,
Wiggins, Wolk, Wright, Wyland, Yee
NO VOTE RECORDED: Aanestad, Cedillo, DeSaulnier, Runner,
Vacancy
ASSEMBLY FLOOR : 77-0, 9/1/09 - See last page for vote
SUBJECT : California State Safe Harbor Agreement Program
Act
SOURCE : Defenders of Wildlife
CONTINUED
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DIGEST : This bill authorizes the Department of Fish and
Game to enter into a safe harbor agreement with a landowner
for the protection of species that are listed as threatened
or endangered under the California Endangered Species Act.
Such an agreement will allow "taking" (killing) of these
species that is incidental to an otherwise lawful activity,
provided certain conditions are met that provide for the
protection of those species.
Assembly amendments (1) add several provisions protecting
landowners from liability for injury as a result of
granting access as required by the bill, but provides the
bill does not limit liability for injury in the case of
willful or malicious failure to guard or warn of a
dangerous condition, (2) allow neighboring landowners who
own land that abuts 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, (3)
prohibit the Department of Fish and Game (DFG) from
releasing or disclosing proprietary information except
under specified circumstances, (4) require DFG to maintain
a list of qualified persons and organizations who have
worked with DFG on approved agreements and serving as
program administrators, and (5) add a January 1, 2020
sunset date.
ANALYSIS : 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 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
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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
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
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:
1. Authorizes DFG to authorize acts that would otherwise be
prohibited as illegal takings under the CESA through a
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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.
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.
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
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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 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.
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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
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.
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16.Contains a sunset clause providing that this bill shall
be repealed on January 1, 2020.
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
SUPPORT : (Verified 9/2/09)
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.
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ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Anderson, Arambula, Beall, Bill
Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,
Brownley, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,
Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore,
Hagman, Hall, Harkey, Hayashi, Hernandez, Hill, Huber,
Huffman, Jeffries, Jones, Knight, Krekorian, Lieu, Logue,
Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava,
Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Buchanan, Duvall, Vacancy
JJA:mw 9/2/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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