BILL ANALYSIS
SB 1349
Page 1
Date of Hearing: June 29, 2010
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared William Huffman, Chair
SB 1349 (Cogdill) - As Amended: June 24, 2010
SENATE VOTE : 36-0
SUBJECT : Endangered species: experimental San Joaquin River
salmon population
SUMMARY : Amends the California Endangered Species Act (CESA)
to authorize take of an experimental population of Chinook
salmon to be introduced as part of the San Joaquin River
restoration. Specifically, this bill :
1)Makes legislative findings that amending CESA to authorize the
taking of an experimental population of San Joaquin River
spring run Chinook salmon is meant to aid in the
implementation of the historic San Joaquin River settlement
approved by Congress and does not create any precedent as to
future application.
2)Allows the Department of Fish and Game (DFG) to authorize the
taking of members of the experimental population of San
Joaquin River spring run Chinook salmon in two ways:
a. If DFG finds an "enhancement of survival permit"
issued by the National Marine Fisheries Service (NMFS)
under the Federal Endangered Species Act (FESA) for the
experimental population will further the conservation of
the species; or,
b. If DFG finds that regulations promulgated by NMFS in
the Federal Register which specify management
restrictions, protective measures, prohibitions, and
exceptions to prohibitions for the designated
experimental population further conservation of the
species, include adequate avoidance and minimization
measures, and avoid jeopardizing the continued existence
or recovery of the experimental population.
EXISTING LAW
1)Prohibits the taking (i.e. hunting, pursuing, capturing or
SB 1349
Page 2
killing) of a species listed in accordance with CESA as an
endangered, threatened, or candidate species.
2)Provides that if any person obtains 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 both FESA and CESA, no further
authorization or approval is necessary under CESA for that
person to take state-listed species identified in, and in
accordance with, the incidental take statement or incidental
take permit, if that person provides notification and a copy
of the incidental take statement or incidental take permit to
the DFG Director and the Director determines that the
statement or permit is consistent with the requirements of
CESA.
3)Defines conservation, under CESA, as using all methods and
procedures which are necessary to bring a listed species to
the point at which CESA protections are no longer necessary.
4)Establishes that the Secretary of Commerce has FESA
jurisdiction over marine organisms and anadromous (i.e.
ocean-going) fish like salmon and steelhead. The Secretary of
Interior has FESA jurisdiction over all other species.
5)Allows a Federal agency, under FESA, to authorize the release
(and related transportation) of any population (including
eggs, propagules, or individuals) of an endangered species or
a threatened species outside the current range of such species
if the Secretaries of Interior or Commerce, as appropriate,
determine that such release will further conservation of the
species. Such a release, including any offspring arising
solely from that release, constitutes an "experimental
population" of that species.
6)Requires the Secretaries of Interior or Commerce, as
appropriate, to treat each member of the experimental
population as a threatened species. This allows the
Secretaries to authorize take of members of an experimental
population by regulation instead of by individual permit.
FISCAL EFFECT : Unknown
COMMENTS :
In the 1800s, California's San Joaquin River supported large
SB 1349
Page 3
salmon populations, including the southernmost Chinook salmon
population in North America. Since then, water diversions for
agricultural development in the San Joaquin Valley, including
Friant Dam and other projects, resulted in the drying up on the
San Joaquin River between Friant and the mouth of the Merced
River.
As the San Joaquin River Restoration Program (SJRRP) web site
advises, the SJRRP is a direct result of a settlement reached by
the U.S. Departments of the Interior and Commerce, the Natural
Resources Defense Council, and the Friant Water Users Authority
in September 2006 resolving an 18-year lawsuit to provide
sufficient fish habitat in the San Joaquin River below Friant
Dam near Fresno. The settlement received Federal court approval
in October 2006 and approval by Congress in March 2009.
The SJRRP has two primary goals: To restore and maintain fish
populations in "good condition" in the main stem of the San
Joaquin River below Friant Dam to the confluence of the Merced
River, including naturally reproducing and self-sustaining
populations of salmon and other fish; and, to reduce or avoid
adverse water supply impacts to all of the Friant Division
long-term contractors that may result from the interim flows and
restoration flows provided for in the settlement.
DFG states that it is sponsoring this bill because it "will be
helpful in the near future as DFG and partners proceed to
implement the [SJRRP], which has a requirement that salmon are
to be re-introduced into the upper-reaches of the San Joaquin
River no later than December 31, 2012." DFG states that this
bill gives DFG flexibility "by allowing entities or individuals
that receive take protection from a federal 'experimental
population' special rule" an alternative mechanism for also
complying with CESA. Otherwise, DFG feels it "will likely face
stiff resistance from private landowners or other state and
local agencies that do not want additional restrictions put on
their respective activities, or the use of their land." A
supporter of this bill notes that, currently DFG "does not have
the authority for designating an experimental population or for
the incidental take of an experimental population."
This bill provides two different ways for DFG to authorize take
of experimental populations. The first type of authorization is
activity-specific but may be for a single activity, a series of
activities, or a number of activities over a specific period of
time. However, the purpose of the authorization is to allow
SB 1349
Page 4
action, usually scientific or resource management activities, in
furtherance of establishing the experimental population.
Examples could include scientific collecting of the species for
introduction or monitoring. This bill allows that a person who
obtains a federal enhancement of survival permit that authorizes
take of members of the experimental population of San Joaquin
River spring run Chinook salmon is not required to obtain any
further take authorization from DFG pursuant to CESA if the DFG
Director, after receiving notice and a copy of the permit,
determines that the enhancement of survival permit will further
the conservation of the species. The timing and extent of the
take authorization is limited to terms of the federal
enhancement of survival permit and expires upon the expiration
of the federal permit or upon the effective date of an amendment
to FESA that alters the requirements for issuing an enhancement
of survival permit.
The second type of authorization is less activity-specific. For
each reintroduction of a species, a regulation is issued
pursuant to FESA Section 10(j) (known as a "10(j) rule") by
either the Secretary of the Interior or the Secretary of
Commerce, as appropriate, which determines whether the
population is essential to the survival of the species and
specifically describes how it will be treated by agency staff
and what private citizens can or cannot do in regard to the
species.
This bill allows DFG to authorize take for the activities
covered by the 10(j) rule if it determines the 10(j) rule for
the experimental population of San Joaquin River spring run
Chinook salmon furthers the conservation of the species,
contains all reasonably feasible measures to avoid and mitigate
the impacts of any taking of the species which is allowed by the
regulation, and does not jeopardized the restoration of the
species in the San Joaquin River.
REGISTERED SUPPORT / OPPOSITION :
Support
Department of Fish and Game (sponsor)
Association of California Water Agencies
California Chamber of Commerce
California Farm Bureau Federation
Western Growers
SB 1349
Page 5
Opposition
None on file.
Analysis Prepared by : Tina Cannon Leahy / W., P. & W. / (916)
319-2096