BILL ANALYSIS
-----------------------------------------------------------------
| |
| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
| |
-----------------------------------------------------------------
BILL NO: SB 1349 HEARING DATE: March 23, 2010
AUTHOR: Cogdill URGENCY: No
VERSION: As Introduced CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Endangered species: experimental populations.
BACKGROUND AND EXISTING LAW
Unlike the federal Endangered Species Act, the California
Endangered Species Act (CESA) does not have provisions for
"experimental populations" of species that are re-introduced
into the wild and that are also designated under the Act as
threatened or endangered.
Under the federal act and regulations adopted by the federal
wildlife agencies, the Secretary of Interior is authorized under
specific circumstances to release into the wild experimental
populations of listed species. These rules are sometimes
referred to as the "section 10(j) rules."
The federal ESA distinguishes between essential and
non-essential experimental populations. An essential
experimental population is one whose loss would be likely to
appreciably reduce the likelihood of survival of the species in
the wild. All other experimental populations are considered
non-essential. In other important distinctions between the two
designations, the federal wildlife agencies may designate
critical habitat for essential populations, but not for
non-essential populations. The consultation process under
Section 7 of the federal act is relaxed for non-essential
populations and consultation is only required when the
non-essential populations occur on National Park Service lands
or federal wildlife refuges. In addition, if the experimental
population is determined to be nonessential to the survival of
the species, the experimental population may be treated like a
species that is proposed for listing as threatened or
endangered. In other words, the nonessential experimental
1
population is not given the full protections of the federal ESA.
Standard Section 7 consultation procedures apply to essential
experimental populations.
Federal wildlife agencies have chosen, in about three dozen
instances, to re-establish a threatened or endangered species in
areas of its former range by concluding that re-introduction is
necessary for the biological recovery of that species. At the
same time, there are sometimes countervailing pressures from
members of the public who have the perception that the mere
presence of the species will restrict their ability to use
private and public lands in the area. This has been a major
concern, for example, with the reintroduction of major
carnivores (such as the gray wolf) in part of some western
states. Approximately 3 dozen experimental populations have been
established in the U.S. including the Colorado pikeminnow, the
southern sea otter, the gray wolf, and the black-footed ferret.
An experimental population is a geographically described group
of reintroduced plants or animals that is isolated from other
existing populations of the species. Members of the experimental
population are considered to be threatened under the federal
ESA, and thus can have special, less restrictive regulations
that would be written for them under Section 4(d) of the federal
act as well as under Section 10(j).
The rules that are developed for nonessential experimental
populations are specific to each species and generally authorize
the lawful take of those species under specified conditions.
According to materials provided by the author, this bill is
prompted by the ongoing efforts to restore the San Joaquin river
and re-establish spring-run Chinook salmon. In a settlement of a
major lawsuit, salmon are required to be introduced no later
than December 31, 2012. The federal agencies have proposed
reintroduction of these salmon as an experimental population in
order to reduce the restrictions that might apply if the
introduced species were designated as threatened or endangered.
Historically, spring-run Chinook salmon were one of the largest
runs on the Pacific coast. In
1885, commercial fisheries harvested over 600,000 fish in the
Central Valley. The population
was never estimated historically, but in 1955 the San Joaquin
drainage was estimated by DFG to sustain 210,000 wild Chinook
salmon per year with proper management. In 1945, a
total of 56,000 fish migrated up the San Joaquin River; this
2
would be the last large run for the
species. After the construction of Friant Dam in 1948 and the
resulting loss of habitat, the San
Joaquin River spring Chinook salmon run became extinct.
PROPOSED LAW
The principal motivation of the author is to establish a
parallel and equivalent experimental population provision under
state law in order to avoid complicating the restoration process
for the San Joaquin river.
As the author indicates, the federal rules for experimental
populations would be more lenient for activities that could
potentially "take" some of the re-introduced salmon in the San
Joaquin river. Examples provided by the author include the
operation of unscreened water diversions and normal water
management practices. He also indicated that restoration and
management activities such as river construction, habitat
modification, and genetic studies could lead to the take of some
fish.
The bill contains a definition of experimental population and
requires some geographic separation between the introduced
population and any wild population that may exist.
In Section 2, the bill would authorize under state law the take
of all experimental populations that were re-introduced under
federal law.
The bill would allow DFG to authorize the take of three
experimental populations of introduced species that would occur
in defined management zones. However, the bill does not state
how the management zones would be identified.
Section 3 of the bill would authorize the take under state law
of federally listed species by those who obtain an "enhancement
of survival" permit from the appropriate federal wildlife
agency. These permits are often obtained in the context of
candidate conservation agreements or safe harbor agreements, but
this provision is also used to authorize take of experimental
populations. A discussion of this is included in the comment
section, below. Further, Section three does not require
consistency with CESA, but only consistency with "the goals" of
CESA.
3
ARGUMENTS IN SUPPORT
Western Growers believes that the bill will conform state law to
federal law on experimental populations, and that the bill will
clarify that DFG has authority to undertake salmon restoration
as part of the overall restoration of the San Joaquin river
restoration effort.
ARGUMENTS IN OPPOSITION
None received
COMMENTS
As introduced, the bill would establish experimental population
provisions in the state endangered species law that are not
entirely consistent with or as complete as the federal
provisions. For example, the bill does not address essential or
non-essential populations, a key distinction in the federal
system. Additionally, the bill implies but does not formally
authorize DFG to release experimental populations into the wild.
Such a provision should be added.
Should the Committee agree that California should establish a
provision in state law that closely tracks the federal
provisions on experimental populations, staff recommends that
the bill be amended and re-organized on a temporary basis in
order to establish a platform for continued discussions among
staff, the author, and the sponsors.
First, Section 2 of the bill should become Section 1, and the
existing Section 1 should become subdivision (b) of the new
Section 1.
As the discussions on this bill occur, among other matters the
Committee and the sponsors and the author should further
consider the question of whether the bill should authorize the
take within three (or some other number) experimental
populations. Temporarily, this provision should become a new (c)
of Sec. 1.
For other amendments: Section 3, as introduced, is only
partially relevant to the experimental population issue since it
could be applied to other federal ESA provisions such as safe
harbor agreements and candidate conservation agreements. Two
amendments to Section 3 should be adopted: (1) The section
should be limited to the take of experimental populations that
is authorized under the federal wildlife agency regulations.
Second, the references on page 4, line 10 and page 4, line 12,
4
that would allow consistency with "the goals" of this chapter
should be deleted so that the measure would actually require
consistency with CESA.
SUPPORT
Western Growers
Department of Fish and Game
OPPOSITION
None Received
5