BILL ANALYSIS �
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2011-2012 Regular Session |
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BILL NO: AB 2402 HEARING DATE: June 26, 2012
AUTHOR: Huffman URGENCY: No
VERSION: June 20, 2012 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Department of Fish and Game: Fish and Game Commission:
entitlements: fees: violations.
BACKGROUND AND EXISTING LAW
The Department of Fish and Game (department) is the trustee
agency for all fish and wildlife in California. It has extensive
responsibility for enforcement of laws relating to hunting and
fishing, protecting streambeds, responding to oil spills, and
many other duties.
After multiple reports, audits, and stakeholder suggestions for
reform, AB 2376 (Huffman) was adopted in 2010 that established a
formal strategic vision process for the department. That
legislation resulted in several layers of stakeholder
participation and recommendations, not all of which made it into
the final report. In general, however, this stakeholder process
was much more organized and coordinated, and it resulted in
recommendations to (1) improve the scientific basis of
department decision-making; (2) to expand its work with
conservation efforts while shifting more of the hunting and
fishing work to the Fish and Game Commission (commission)
although that recommendation was not explicitly adopted in the
final report; (3) to improve the funding of the department
either through general fund support or through making sure that
fees cover the costs of their respective programs; (4) to
improve the department's coordination with stakeholders and
other state agencies; (5) and many others.
PROPOSED LAW
AB 2402 is a major effort by the author to include many
department reforms from the strategic vision process and other
sources that have been considered by many experts over the
years.
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The bill has many provisions, which appear in the bill in this
order:
1. Adds department wardens to the law enforcement personnel who
may not be selected for voir dire in criminal matters.
2. Adds a definition of adaptive management to the Fish and Game
Code. It would mean management that improves biological
resources over time by using new information gathered through
monitoring, evaluation and other credible sources. The
definition is intended to be a tool for improving future
actions.
3. Adds a definition of "credible science" that would mean the
best available scientific information that is not overly
prescriptive due to the dynamic nature of science and includes
the evaluation principles of relevance, inclusiveness,
objectivity, transparency, timeliness, and other criteria
including peer review of information as appropriate.
4. Changes the name of the department to the Department of Fish
and Wildlife Conservation.
5. Adds a definition of "ecosystem based management" that would
define the term as an environmental management approach relying
on credible science, as defined earlier, that recognizes the
full array of interactions within an ecosystem, including
humans, rather than considering single issues, species, or
ecosystem services in isolation.
6. As part of the proposed name change, the department is
required to exhaust all supplies, uniforms, etc., until those
items are exhausted or unserviceable.
7. Adds provisions to the existing Automated License Data System
(ALDS) to include the citations issued by department wardens. To
the extent feasible, the department would also electronically
file citations with the court, receive electronic reporting from
courts on case dispositions, and electronically track court
imposed fines and penalties to ensure compliance.
8. Adopts policies that ecosystem based management and credible
science be used by the department and the commission.
9. Adds intent language that the department and the commission
should work in partnership with other agencies and other
stakeholder, should improve interagency coordination on projects
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that require multiple permits, and improve data-sharing across
agencies.
10. Establishes a new independent science panel to provide
advice and recommendations to the department. The panel would
have no more than 10 experts in biological and other sciences
and would provide an independent and objective view of the
issues underlying policy decisions that the department might
make. The panel would provide the best available scientific
information to the department and the commission, and promote
peer review and scientific integrity. The panel could provide
expertise on listings under the state endangered species act. It
would also develop a scientific integrity policy for the
department that would include ethical standards for scientists,
standards for independent peer review and other best practices.
For marine issues, the department may use the Ocean Science
Trust for these purposes.
11. The scientific take permits issued mainly to researchers
would include the incidental take of listed and fully protected
species.
12. The department and the commission would be charged with
developing a strategic plan and a report to the Legislature on
reforms initiated from the strategic vision process and other
reforms recommended by the department.
13. The department wardens would be able to use the ALDS system
while in the field to assist in learning of pending or historic
citations by alleged violators.
14. The department would be encouraged to enter into contracts
or other arrangements with nonprofits for purposes relating to
the conservation programs of the department.
15. The bill authorizes incidental take of listed and fully
protected species as part of streambed alteration agreements
between the department and project applicants when necessary to
complete the project or improve protection of those species.
16. To clarify that the department must have specific authority
in the law (which it does not now have) to authorize the take of
any species, not just those that are protected by endangered
species laws or other laws, a new section would be added stating
that the department may authorize in writing the take of species
other than listed or fully protected species. This provision is
limited to permits for which a state agency is the lead agency
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and would not apply to private permit applicants.
17. Several provisions in the bill would shift the
implementation of the state endangered species act from the
commission to the department. These include the responsibility
for maintaining the lists of threatened and endangered species,
the guidelines that pertain to petitioning for a listing, the
public process that accompanies a listing decision, and all
other provisions of the endangered species statute would be
transferred.
18. Additionally, the department would be required to obtain
independent scientific peer review of new species listing
proposals. Sections 20-42 contain the provisions in items 17-18.
19. In circumstances in which mitigation for projects (often
desert renewable energy projects) occurs on federal lands and
the federal agencies are not able to provide for the permanence
of that mitigation, a new provision called "additive mitigation"
would be added. This would require an additional mitigation
increment of 20% of the acreage necessary to maintain the
state's mitigation requirements. This provision is limited to
lands designated as Critical Environmental Concern areas by the
federal Bureau of Land Management.
20. A fee adjustment for professional guides is included. Like
other such fee adjustments, the objective is to fully recover,
but not to exceed, the costs of the department and the
commission relating to those licenses.
21. Similar language in item 20 would apply to lifetime hunting
licenses.
22. Similar language in item 20 would apply to kelp harvesting
permits.
23. Similar language in item 20 would apply to abalone permits.
24. Similar language in item 20 would apply to marine aquaria
collector permits.
25. The department would be encouraged, but not required, to
establish an environmental crimes task force to consider ways to
improve coordination with other law enforcement agencies to
deter poaching and other violations of the Fish and Game Code.
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26. Endowment funds paid to the department for its conservation
programs, conservation easements, and other habitat programs and
the interest on those funds would be continuously appropriated
to the department for the purpose of its long-term management of
those lands. The department would also be given authority to
invest those funds in an account outside the Pooled Money
Investment Account but still within the State Treasury system.
27. The department wardens would be added to the provision in
existing law that allows other peace officers and firefighters
who are injured or disabled to receive one year of salary
instead of disability payments.
28. A penal code amendment would allow the department wardens to
overhear or record specified communications.
ARGUMENTS IN SUPPORT
According to the author, this bill enacts recommendations
resulting from a broad-based strategic visioning process for
reforms of the department and the commission in order to enhance
the effectiveness of these agencies in protecting and managing
fish and wildlife and their habitats for the benefit and use of
the people of the state.
The author points out that these two agencies, both about 140
years old, have taken on increasingly important roles in
management and conservation of wildlife and their habitats.
Initially, the department and the commission were primarily
responsible for administering hunting and fishing programs.
These functions remain important today, but other functions,
such as non-game wildlife protection, and maintaining the health
of entire ecosystems have all become central and important
responsibilities for both agencies.
As for specific proposals in AB 2402, the author has provided
the following information:
1. A proposed change in name of the department was a specific
recommendation of the Blue Ribbon Citizens Commission (BRCC).
The BRCC recommended a name change as necessary to more
accurately reflect the scope of the department and the
commission's jurisdiction in the 21st century.
2. The new definitions of ecosystem based management, credible
science, adaptive management and scientific integrity as
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principles that should guide the work of the department and the
commission were all specific recommendations of the strategic
vision, supported by the stakeholder group.
3. The intent language that the department and the commission
should foster and participate in partnerships and collaborations
with other agencies and stakeholders, including joint permit
review efforts for projects involving multiple permits was a
specific recommendation of the strategic vision, supported by
the stakeholder group.
4. The provision establishing an independent scientific advisory
panel to assist the department on issues such as peer review was
included in earlier drafts of the strategic vision, and promotes
the goal in the final report of credible science and utilizing
independent peer review.
5. The provision to require the department to maintain a
statewide electronic system for managing citations issued by
Fish and Game wardens (wardens) that will allow better
communication between the department and the courts and
facilitate prosecution of violations.
6. Permitting the department to accept donations of funds and to
enter into agreements with nonprofit organizations to assist the
department with fundraising and other services very similar to
the existing relationship between the Department of Parks and
Recreation and the California State Parks Foundation.
7. Requiring the department by January 1, 2015 to modify its
Automated License Data System to include information on fish and
game violations and to provide wardens with electronic access to
ALDS information in the field was included in earlier drafts of
the strategic vision report and will help to facilitate field
enforcement by wardens.
8. A provision clarifies the department's authority to issue
incidental take permits for non-listed species.
While the department has authority under the law to issue
incidental take permits for endangered or threatened species, it
does not have clear authority to issue an incidental take permit
for a non-listed species.
9. Several provisions shift responsibility for review of
petitions and proposed listing decisions under the California
Endangered Species Act (CESA) from the commission to the
department. The department would hold public hearings to
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consider proposed listings and provisions clarify when the
record of the proceedings may be closed and the time frames
within which the department must issue its decision. This bill
requires independent peer review of all species' status reports
and allows for an extension of up to 6 months, if necessary, to
complete the peer review process and provide for public
disclosure.
This change was recommended by members of the BRCC and contained
in a joint letter of recommendations submitted as part of the
strategic vision process. The letter was signed by former state
resource secretaries who served in both Republican and
Democratic administrations. There is currently a mismatch
between CESA requirements and the commission's capacity. CESA
requires that listing and candidacy decisions be made strictly
on the basis of science. The commission is a policy body whose
non-paid members and limited staff lack the capacity to make
decisions based on a thorough review of the science. There is no
requirement that members have a scientific background and
currently no member has such experience. As a result of this
disconnect between requirements and capabilities, the
commission's CESA decisions have frequently been overturned by
the courts for failure to proceed in the manner required by law.
Placing CESA responsibilities with the department would align
CESA requirements with the department's capacity. The
department, unlike the commission, has substantial scientific
staff and biological expertise that could be effectively
deployed in making listing decisions, just as is the case with
the US Fish and Wildlife Service under the federal Endangered
Species Act.
Further, the commission's CESA duties divert it from its
historic function as the state's policy body for fish and
wildlife programs, and interfere with its oversight of the
state's recreational hunting, and commercial and recreational
fishing programs. The commission's preoccupation with matters
like CESA, that have little to do with hunting and fishing, has
caused the state's recreational hunters and anglers to conclude
that the commission no longer has the time or interest to give
hunting and fishing decisions the attention they require. The
CESA transfer would enable the commission to once again focus on
matters most closely related to their abilities and historic
functions, therefore reconnecting hunters and anglers to the
body that regulates the recreational take of wildlife. CESA's
public notice and hearing requirements would open the
department's functions to public view and participation,
creating a new culture of transparency in decision-making that
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is currently lacking at the department. This bill requires
public hearings, and also requires that all department species'
status reports for CESA listing petitions be submitted to
independent peer review.
10. Various provisions would authorize the department and the
commission to adjust certain licensing fees as necessary to
recover reasonable administrative and implementation costs.
The Barrier to Implementation report which accompanied the
strategic vision identifies inadequate funding as one of the
greatest barriers to implementation of the department's mission.
Over 50% of the fees for the department's licenses and permits
are set in statute, requiring legislation to raise them, when
necessary, to bridge the gap between revenues and operating
costs. The Legislature has frequently imposed new mandates on
the department without also providing funding. The strategic
vision report notes that any meaningful change must include
fiscal reform. While the authority for fee adjustments in this
bill would allow for cost recovery, it does not address all of
the long term funding needs of the department.
11. A provision gives the department additional flexibility to
invest endowment funds held in the State Special Deposit Fund,
Fish and Game Mitigation and Protection Endowment Principal
Account, and provides that moneys in the account are
continuously appropriated to the department to fund long-term
management of habitat lands. This will enable endowment funds
held by the state for conservation lands to be invested in ways
that increase the rate of return for long term management,
similar to the flexibility that nonprofit third parties, which
hold endowment funds, now may exercise.
12. A provision requires the department and the commission to
develop a strategic plan to implement proposals arising from the
strategic vision process, legislation enacted relating to the
strategic vision process, and other proposals for reform. This
language provides for follow-up and oversight on implementation
of the strategic vision.
13. Several provisions provide wardens with the same standing as
other peace officers with regard to laws concerning disability
coverage when injured on the job, and exemption from
participation in jury voir dire criminal cases. These provisions
promote the strategic vision goals of equity for wardens, and
recruitment and retention. They do not address pay equity or
union issues.
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14. The provision that the department establish an environmental
crimes prosecutorial taskforce to assist in the prosecution and
adjudication of wildlife crimes was a specific recommendation of
the strategic vision and supported by the department's law
enforcement branch.
15. The additive mitigation provision requires additional
mitigation for projects impacting lands that were previously
protected for mitigation. This provision would require a project
impairing lands that were previously protected as mitigation for
a prior project on federal lands, mitigate both for the loss of
mitigation from the first project, the mitigation of that second
project, and an additional 20%. This provision is limited to
certain federally owned lands.
The Nature Conservancy, Audubon California, and Ocean
Conservancy support the bill based on the fact that it closely
tracks the themes of the strategic vision process.
ARGUMENTS IN OPPOSITION
The California Farm Bureau and another coalition consisting of
agricultural and commercial fishing interests opposes the bill.
These groups are concerned about moving CESA listing decisions
to the department from the commission, and want clarification on
several of the other provisions in the bill that affect what
they think is new regulatory authority for non-listed species.
These groups also oppose the name change.
COMMENTS
1. The author has indicated a desire to delete section 56 of the
bill.
2. Although the recent amendments have converted AB 2402 into a
lengthy bill, the amendments can be grouped into categories:
A. One group of amendments adds science-based definitions and a
science panel.
B. One group of amendments improves enforcement and helps the
wardens in their duties.
C. One group of amendments deals with matters internal to the
department such as its name, a new strategic plan, its
relationships with nonprofits, the use of interest from
endowment funds, and its early consultation with other agencies.
D. One group of amendments shifts CESA administration from the
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commission to the department. This group of amendments is seen
by its supporters as a way to make these listing decisions more
science-based and less subject to the politics that may be
present on the commission.
E. One group of amendments deals with some fee adjustments and
the desire to have feepayers pay for the cost of their
respective programs.
F. There are also some amendments that don't fit into these
categories such as the additive mitigation proposal on federal
lands and others.
SUGGESTED AMENDMENTS
AMENDMENT 1
Delete Section 56.
SUPPORT
PawPac
Audubon California
Endangered Habitats League
Ocean Conservancy
The Nature Conservancy
OPPOSITION
Agricultural Council of California
California Association of Recreational Fishing
California Bean Shippers Association
California Cattlemen's Association
California Farm Bureau Federation
California Grain and Feed Association
California Lobster and Trap Fishermen
California Pear Growers Association
California Sea Urchin Commission
California Seed Association
California Wheat Growers Association
Pacific Egg and Poultry Association
Point Conception Ground Fishermen's Association
Western Growers
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