BILL NUMBER: SB 1349 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 28, 2010
AMENDED IN SENATE APRIL 13, 2010
INTRODUCED BY Senator Cogdill
FEBRUARY 19, 2010
An act to add and repeal Section 2080.2 of
Sections 2080.2 and 2080.4 to, and to add and repeal
Section 2080.3 of, the Fish and Game Code, relating to
endangered species.
LEGISLATIVE COUNSEL'S DIGEST
SB 1349, as amended, Cogdill. Endangered species: experimental
populations: Chinook salmon.
The Federal federal Endangered
Species Act of 1973 (FESA) directs federal agencies, in consultation
with the Secretary of the Interior or the Secretary of Commerce, as
appropriate, to carry out conservation programs for endangered
species listed under FESA. FESA generally prohibits activities
affecting these threatened and endangered species unless authorized
by a permit from the United States Fish and Wildlife Service or the
National Marine Fisheries Service, as appropriate. FESA provides for
enhancement of survival permits to allow actions necessary for the
establishment and maintenance of experimental populations designated
pursuant to that act.
The California Endangered Species Act (CESA) prohibits the taking
of an endangered or threatened species, except as specified. The
Department of Fish and Game may authorize the take of listed species
if the take is incidental to an otherwise lawful activity and the
impacts are minimized and fully mitigated. Existing law provides that
if any person obtains from the Secretary of the Interior or the
Secretary of Commerce an incidental take statement or incidental take
permit pursuant to FESA that authorizes the taking of an endangered
species or threatened species listed pursuant to FESA , and
that is an endangered species, threatened species, or candidate
species pursuant to CESA, no further authorization or approval is
necessary under CESA for that person to take the endangered species,
threatened species, or candidate species identified in, and in
accordance with, the incidental take statement or incidental take
permit, if that person notifies the Director of Fish and Game, as
specified, and the director determines that the statement or permit
is consistent with CESA.
This bill would provide that a person who obtains a federal
enhancement of survival permit that authorizes the take of spring run
Chinook salmon that has been designated as an experimental
population pursuant to FESA, would require , in order
to establish or maintain an experimental population in the San
Joaquin River pursuant to the federal San Joaquin River Restoration
Settlement Act, requires no further authorization or approval
under CESA for that person to take that species as identified in, and
in accordance with, the enhancement of survival permit, if
that person notifies the director of the enhancement of survival
permit specified requirements are fulfilled .
The These provisions of the
bill would remain in effect only until the effective date
of an amendment to FESA that alters the requirements for issuing an
enhancement of survival permit.
The bill would authorize the incidental take of spring run Chinook
salmon in the San Joaquin River that are designated as an
experimental population under FESA, without the need for further
authorization or approval under CESA, if specified requirements are
fulfilled.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2080.2 is added to the
Fish and Game Code , to read:
2080.2. The Legislature finds and declares the following:
(a) The historic settlement approved by Congress in the San
Joaquin River Restoration Settlement Act (Part I of Subtitle A of
Title X of Public Law 111-11) directs the federal government to
reintroduce spring run Chinook salmon to the San Joaquin River. In
approving the settlement and the new statutory provisions governing
the reintroduction of California central valley spring run Chinook
salmon, Congress found that the implementation of the settlement, to
resolve 18 years of contentious litigation regarding restoration of
the San Joaquin River and the reintroduction of the salmon, was a
unique and unprecedented circumstance. The settlement also provides
that nothing in the settlement diminishes the statutory or regulatory
protections under the federal Endangered Species Act of 1973 (16
U.S.C. Sec. 1531 et seq.) nor does it establish a precedent with
respect to any other application of the federal act.
(b) Central valley spring run Chinook salmon have been listed
since 1999 as a threatened species under this chapter and were still
listed as of January 1, 2011.
(c) Restoring spring run Chinook salmon to the San Joaquin River
is intended to further the conservation and recovery of the species.
(d) Consistent with the unique and historic circumstances that led
to the settlement, nothing in Section 2080.2, 2080.3, or 2080.4 is
intended to create any precedent as to future application of this
chapter, nor do Sections 2080.2, 2080.3, or 2080.4 otherwise modify
other existing statutes or legal obligations.
SEC. 2. Section 2080.3 is added to the
Fish and Game Code , to read:
2080.3. (a) Notwithstanding any other provision of this chapter,
if any person obtains from the Secretary of the Interior or the
Secretary of Commerce an enhancement of survival permit pursuant to
Section 1539(a)(1)(A) of Title 16 of the United States Code that
authorizes the taking of spring run Chinook salmon (Oncorhynchus
tshawytscha) in order to establish or maintain an experimental
population in the San Joaquin River pursuant to subsection (j) of
that section and the San Joaquin River Restoration Settlement Act
(Part I of Subtitle A of Title X of Public Law 111-11), no further
authorization or approval is necessary under this chapter for that
person to take that species as identified in, and in accordance with,
the enhancement of survival permit, if all of the following
requirements are met:
(1) That person shall notify the director in writing that the
person has received an enhancement of survival permit and include in
the notification a copy of the permit.
(2) Upon receipt of the notice specified in paragraph (1)
subdivision (c), the director shall immediately have the notice
published in the General Public Interest section of the California
Regulatory Notice Register.
(3) Within 30 days after the director has received the notice
specified in paragraph (1) the director shall determine whether the
enhancement of survival permit will further the conservation of the
species. As used in this paragraph, "conservation" has the same
meaning as defined in Section 2061.
(4) The director shall immediately have the determination pursuant
to paragraph (3) published in the General Public Interest section of
the California Regulatory Notice Register.
(b) The timing and extent of a take authorization under this
section shall be limited to the terms in the federal enhancement of
survival permit and shall expire upon the expiration of the federal
permit.
(c) This section shall remain in effect only until the effective
date of an amendment to Section 1539 of Title 16 of the United States
Code that alters the requirements for issuing an enhancement of
survival permit, as applicable, and as of that date is repealed,
unless a later enacted statute, that is chaptered before the date
this section is repealed, deletes or extends that date.
SEC. 3. Section 2080.4 is added to the
Fish and Game Code , to read:
2080.4. (a) If a population of spring run Chinook salmon in the
San Joaquin River is designated as an experimental population under
subsection (j) of Section 1539 of Title 16 of the United States Code,
no further authorization or approval is necessary under this chapter
for any person to incidentally take members of that experimental
population, if all of the following requirements are met:
(1) The Secretary of Commerce has published regulations in the
Federal Register specifying management restrictions, protective
measures, prohibitions, and exceptions to the prohibitions for the
designated experimental population of spring run Chinook salmon in
the San Joaquin River.
(2) The director has determined, in writing, that the management
restrictions, protective measures, prohibitions and exceptions to
prohibitions contained in the regulations specified in paragraph (1)
meet the requirements in subdivision (b).
(3) The action or activity that results in incidental take of the
designated experimental population is authorized by the regulations
published in the Federal Register.
(b) The director shall issue the determination described in
paragraph (2) of subdivision (a), if the director finds that the
federal regulations described in paragraph (1) of subdivision (a)
meet all of the following criteria:
(1) The federal regulations will further the conservation of the
spring run Chinook salmon. As used in this paragraph, "conservation"
has the same meaning as defined in Section 2061.
(2) The federal regulations contain all reasonably feasible
measures to avoid and minimize the impacts of any taking allowed by
the regulation.
(3) The federal regulations will not jeopardize the continued
existence or recovery of spring run Chinook salmon, and will not
jeopardize the restoration of spring run Chinook salmon in the San
Joaquin River.
(c) If the director determines that the federal regulations
described in paragraph (1) of subdivision (a) are not consistent with
this chapter, or if the action or activity that results in
incidental take is not authorized in those federal regulations, then
the incidental take of members of the designated experimental
population may only be authorized pursuant to this chapter.
(d) The director shall publish the determination, pursuant to
paragraph (2) of subdivision (a), and subdivision (b), in the General
Public Interest section of the California Regulatory Notice
Register.
SECTION 1. Section 2080.2 is added to the Fish
and Game Code, to read:
2080.2. (a) Notwithstanding any other provision of this chapter,
but subject to subdivision (c), if any person obtains from the
Secretary of the Interior or the Secretary of Commerce an enhancement
of survival permit pursuant to subparagraph (A) of paragraph (1) of
subdivision (a) of Section 1539 of Title 16 of the United States Code
that authorizes the take of spring run Chinook salmon (Oncorhynchus
tshawytscha) that has been designated as an experimental population
pursuant to subdivision (j) of that section, no further authorization
or approval is necessary under this chapter for that person to take
that species as identified in, and in accordance with, the
enhancement of survival permit, if that person notifies the director
in writing that the person has received an enhancement of survival
permit issued pursuant to the federal Endangered Species Act of 1973
(16 U.S.C. Sec. 1531 et seq.). The notice to the director shall
include a copy of the permit.
(b) Upon receipt of the notice specified in subdivision (a), the
director shall direct the publication of that notice in the General
Public Interest section of the California Regulatory Notice Register.
(c) The timing and extent of a take authorization under this
section shall be limited to the terms in the federal enhancement of
survival permit and shall expire upon the expiration of the federal
permit.
(d) This section shall remain in effect only until the effective
date of an amendment to Section 1539 of Title 16 of the United States
Code that alters the requirements for issuing an enhancement of
survival permit, as applicable, and as of that date is repealed,
unless a later enacted statute, that is chaptered before the date
this section is repealed, deletes or extends that date.