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 1303 HEARING DATE: April 13, 2010
AUTHOR: Wolk URGENCY: No
VERSION: As Introduced CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Protected species: accidental take: agricultural
activities.
BACKGROUND AND EXISTING LAW
In 1997, the Legislature passed and the Governor signed SB 231
(Costa), a measure that established a new provision in the
California Endangered Species Act removing the prohibition
against the take of listed species caused by the accidental take
of species on farms and ranches that occurs in the course of
"routine and ongoing" agricultural activities. The bill had a 5
year sunset provision. This provision is now codified at Section
2087 of the code.
In 2002, SB 550 (Costa) extended the sunset to 2009 and made one
technical change to the law as it is now codified.
In 2008, SB 1436 (Ducheny) extended the sunset to 2011.
Separately, in section 2086 of the Fish and Game Code, SB 231
also established a new voluntary habitat management program for
farmers and ranchers that depends in large part on the
development of best management practices that are developed
locally and approved by the department. That section, among
other things, requires farmers and ranchers to avoid and
minimize take of listed species, to develop programs based on
the best available scientific information, and contains other
criteria as well. The voluntary habitat management program has a
separate provision for the incidental take of protected species
occurring from routine and ongoing agricultural activities.
However, it is only the free-standing accidental take provision
(the one not tied to the voluntary habitat management program)
that is codified in Section 2087, that has a sunset provision,
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and would be affected by this bill
SB 231 required DFG to develop regulations to implement its
provisions. Those regulations defined "routine and ongoing
agricultural activities" as a long list of enumerated
agricultural activities as well as those activities that are
performed "incidental to or in conjunction with" those farming
operations, including the preparation for market, delivery to
storage or to market, delivery to carriers for transportation,
and all activities compatible with the Williamson Act.
Excluded from the definition are conversions of agricultural
lands to nonagricultural use, timber harvesting activities, or
activities that intentionally reduce habitat to facilitate
conversion to non-agricultural uses. Also, the conversion of
rangeland to more intensive agricultural uses such as permanent
crops is not considered a routing and ongoing agricultural
activity.
When adopted, SB 231 was supported by those who contended that
unintended harm to listed species that occurs during normal
agricultural activities should not be subject to penalties of
the state endangered species act. Opponents argued that SB 231
created a loophole in the state endangered species act that
would enable some to take unfair advantage of an important law
of general applicability. The opposition also argued that there
was insufficient evidence of unfair enforcement of the state
endangered species act on agricultural lands.
PROPOSED LAW
This bill would delete the sunset and thus make permanent the
accidental take provisions in section 2087 of the state
endangered species act. The accidental take provisions of
Section 2086 would remain in effect.
ARGUMENTS IN SUPPORT
According to a coalition that includes several agricultural
organizations, the California Chamber of Commerce, and the
California State Association of Counties, SB 1303 will permit
farmers and ranchers to produce food and fiber "without fear of
penalties under the California Endangered Species Act if they
accidentally take a species listed as candidate, threatened, or
endangered." The coalition views the bill as providing an option
for landowners not to use "scorched earth" farming practices and
instead allows for habitat to develop as a part of agricultural
practices. The coalition contends that CESA discourages farmers
from creating habitat, since such habitat could potentially
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attract listed species, and thus triggering application of the
state's endangered species regulations.
ARGUMENTS IN OPPOSITION
Audubon California is opposed to the version in print but will
remove its opposition if and when a successful discussion with
stakeholders is concluded that involves a phase out of the
accidental take provision accompanied by a phase in of a
negotiated alternative. It would support a one year extension of
the sunset for the purposes of those discussions.
COMMENTS
1. As seen from the description of existing law and the
background of Section 2087 and its curious relationship with
Section 2086, the Committee may decide a more permanent and
coherent solution should be crafted that involves more than
simply removing the sunset on Section 2087. While that sunset
has been extended twice before, the effect is to retain two
accidental take provisions-one that requires a voluntary habitat
management program pursuant to Section 2086 and one pursuant to
Section 2087 that does not.
2. The Legislature has recently affirmed its commitment to
voluntary actions on private lands that will help establish
habitat for threatened and endangered species. Last year, SB 448
(Pavley) established a "safe harbor" program in the California
Endangered Species Act that parallels a similar federal
provision. In short form, SB 448 allows landowners, voluntarily,
to establish a baseline of the protected species that resides on
their property and to proceed to manage their lands, provided
that at the expiration of the agreement, the census of protected
species is no lower than the baseline.
3. In conversations with the author and the sponsors, a basic
agreement has been reached that a solution should be created
that is more substantive than simply deleting the sunset.
Existing law is not only confusing, but a literal reading of
Sec. 2087 provides for an unlimited number of "accidental take"
incidents, does not require a management plan of any sort, and
does not provide any outreach or educational activities that
would benefit farmers and ranchers in complying with the state
endangered species act. Additionally, Sec 2087 was passed at
least in part as a reaction to an unusual instance of
enforcement activity taken against a rancher at the federal
level, under federal law. Staff is not aware of any similar
actions taken at the state level. Given the fiscal circumstances
of Department of Fish and Game wardens, one can surmise that it
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is not likely that enforcement efforts against farmers and
ranchers are a major priority of the department. Staff is not
aware of any landowner utilizing the provisions of Sec. 2087.
4. Assuming the bill moves forward with the suggested amendment,
it is the intent to fully cooperate with the author and the
sponsors and other stakeholders to determine the best way to
resolve the future of Sec. 2087. While those conversations are
underway, the author has agreed to an amendment that extends
Section 2087 for one year. The Committee of course retains the
right to ask for the bill to be returned to the Committee to
consider the next iteration of language in the bill.
SUGGESTED AMENDMENTS
AMENDMENT 1
Page 2, lines 1-3. Delete, and add a new sunset of 1/1/12.
SUPPORT
Agricultural Council of California
Alliance of Western Milk Producers
California Cattlemen's Association
California Chamber of Commerce
California Citrus Mutual
California Cotton Ginners Association
California Farm Bureau Federation
California Grape and Tree Fruit League
California Outdoor Heritage Alliance
California State Association of Counties
California Tomato Growers Association
Kings River Conservation District
Kings River Water Association
Nisei Farmers League
Regional Council of Rural Counties
Resources Landowner's Coalition
Western Agricultural Processors Association
Western Growers
OPPOSITION
Audubon California - unless amended
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