BILL ANALYSIS
SB 1334
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Date of Hearing: June 21, 2010
ASSEMBLY COMMITTEE ON NATURAL RESOURCES
Wesley Chesbro, Chair
SB 1334 (Wolk) - As Amended: May 10, 2010
SENATE VOTE : 23-12
SUBJECT : Natural community conservation plans (NCCP): local
participation
SUMMARY : Adds to the list of findings the Department of Fish
and Game (DFG) must make, based on substantial evidence, before
approving a NCCP. Specifically, DFG must find that it has
cooperated with a local agency that has land use permit
authority over the activities proposed to be addressed in a
NCCP.
EXISTING LAW :
1)Establishes guidelines for the development of a NCCP, which is
intended to protect habitat, natural communities, and species
diversity on a landscape or ecosystem level through the
creation and long-term management of habitat reserves or other
measures that provide equivalent conservation of sensitive
species. A NCCP must also identify activities that are
compatible with the conservation of these species and their
habitats, and contain a monitoring and adaptive management
program. Concurrent with the approval of a NCCP, DFG must
establish a list of threatened or endangered species that can
be "taken," as specified.
2)Authorizes DFG to enter into an agreement with any person or
public entity for the purpose of preparing a NCCP, in
cooperation with a local agency that has land use permit
authority over the activities proposed to be addressed in the
NCCP.
3)Requires DFG to establish a process for public participation
and review during the development of a NCCP to ensure that
interested persons, including landowners, have an adequate
opportunity to provide input to lead agencies, state and
federal wildlife agencies, and others involved in preparing
the NCCP.
SB 1334
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THIS BILL : Adds to the list of findings DFG must make, based on
substantial evidence, before approving a NCCP. Specifically,
DFG, when finding that a NCCP has been developed consistent with
a planning agreement, must also make a finding that it has
cooperated with a local agency that has land use permit
authority over the activities proposed to be addressed in a
NCCP.
FISCAL EFFECT : According to the Senate Appropriations
Committee, insignificant state costs pursuant to Senate Rule
28.8.
COMMENTS :
1)According to the author's office:
NCCP's often rely on land use actions that require the
cooperation and participation of the local land use
authority. In some cases, the local land use authority is
not the permit applicant for an NCCP. In those cases, the
permit applicant must commit to carry out actions that he
or she does not have the authority to carry out. Without
the cooperation of the land use authority, permitting
agencies have no assurance that such actions will ever be
implemented.
SB 1334 seeks to maximize the successful implementation of
NCCPs by encouraging early participation of local land use
entities. To ensure that DFG involves the local planning
entity, as required by existing law, SB 1334 requires DFG
to make an affirmative finding that the local entity has
been cooperated with, prior to approving an NCCP for
implementation.
2)Background : According to DFG's Web site: "The primary
objective of the NCCP program is to conserve natural
communities at the ecosystem level while accommodating
compatible land use. The [voluntary] program seeks to
anticipate and prevent the controversies and gridlock caused
by species' listings by focusing on the long-term stability of
wildlife and plant communities and including key interests in
the process...The NCCP approach to conservation is available
statewide and planning efforts are underway in Butte, Santa
Clara, Placer, Yolo, Sutter, and Yuba Counties, as well as
with the Mendocino Redwood Company. There are currently 24
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active NCCPs covering more than 9 million acres."
A high-profile NCCP currently in development is the Bay Delta
Conservation Plan (BDCP), which the author of this bill is
particularly interested in. The BDCP, a draft of which is
expected this fall, is intended to support the issuance of
"take" authority, pursuant to both state and federal
endangered species laws, to state and federal water projects
pumping water from the Delta. A steering committee comprised
of state and federal agencies, water contractors or districts,
environmental organizations, and others-but no local
government-is preparing the BDCP.
3)The art of legislating and enforcing "cooperation" : Existing
law authorizes DFG to enter into an agreement with any person
or public entity for the purpose of preparing a NCCP, in
cooperation with a local agency [emphasis added] that has land
use permit authority over the activities proposed to be
addressed in the NCCP. The act of "cooperation" in this
context seems limited to the execution of the agreement. This
bill appears to require DFG to make a finding prior to
adoption of a NCCP that the act of "cooperation" required
above actually occurred. Without a detailed definition of
"cooperation," which is not found in existing law or this
bill, this requirement appears vague and potentially
unenforceable.
There appears to be little evidence that DFG has complied with
the spirit or intent of the existing "cooperation" requirement
when the BDCP planning agreement was executed in October 2006.
This alleged lack of cooperation may seem trivial but it has
real world consequences to the extent that successful
implementation of terrestrial conservation actions proposed in
the BDCP are contingent upon approval by local land use
agencies. In fact, a draft BDCP document discusses seven
terrestrial NCCPs or Habitat Conservation Plans (HCPs),
sponsored by all five Delta counties (e.g., Contra Costa,
Sacramento, San Joaquin, Solano and Yolo) and some special
districts, where "[o]pportunities exist for joint
implementation of conservation actions for covered species and
natural communities?" It remains to be seen whether the Delta
counties will decide to partner with and exercise favorable
discretionary action on behalf of an entity that has allegedly
not demonstrated a willingness to do the same.
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At the same time, it is not clear the Delta counties know
exactly what they want in terms of engagement. As indicated
in the Senate Natural Resources and Water committee analysis,
the five Delta counties have no desire to join the BDCP
steering committee and the author has no intent of re-opening
the existing BDCP planning agreement. To be fair, some
counties reportedly decided not to join the steering committee
in light of an agreement it reached in November 2007
proclaiming that a conveyance system is "?the most promising
approach for achieving the BDCP conservation and water supply
goals?."
4)This just in, cooperation may be at hand : Notwithstanding the
above, the committee is in possession of evidence that the
BDCP steering committee may be more interested in
"cooperating" with Delta counties. Listed on a hand-out for
the June 17, 2010 meeting of the steering committee is a
governance proposal that includes the Delta counties and other
"Delta interests", in addition to Steering Committee members,
on a "BDCP Implementation Committee." According to the author,
the counties have yet to be consulted about this proposal.
REGISTERED SUPPORT / OPPOSITION :
Support
California State Association of Counties
City of Santa Rosa
Delta Counties Coalition
Solano County Water Agency
Opposition
Department of Fish and Game
Analysis Prepared by : Dan Chia / NAT. RES. / (916) 319-2092