BILL ANALYSIS �
SB 1148
Page 1
Date of Hearing: June 26, 2012
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
SB 1148 (Pavley) - As Amended: June 21, 2012
SENATE VOTE : 24-14
SUBJECT : Fish and Game Commission: Department of Fish and Game
SUMMARY : Makes numerous changes to implement policy
recommendations arising out of a Strategic Vision process for
the Department of Fish and Game (DFG) and the Fish and Game
Commission (FGC) in order to improve the effectiveness of these
entities in protecting and managing state fish and wildlife
resources. Specifically, this bill :
1)States legislative findings and declarations regarding the
Strategic Vision process that was initiated as a result of the
passage of AB 2376 in 2010 and the need for reforms to improve
and enhance the capacity of DFG and FGC. States legislative
intent to focus more of the work of the FGC on implementing
state hunting and fishing laws, and to enhance DFG's ability
to focus on managing its lands, its enforcement
responsibilities, its conservation programs, and enhancing the
scientific basis of DFG's decisions.
2)Requires the Office of Planning & Research (OPR) to include
trustee agencies such as DFG in developing the state
Environmental Goals and Policy Report.
3)Modifies and updates requirements related to sustainable
management of the state's hatchery program and native
fisheries, including the following:
a) States legislative findings and declarations
regarding the role of hatcheries and the importance of
genetic diversity in managing California native trout
species, and that DFG seek to provide diverse
recreational angling opportunities.
b) Requires DFG to make publicly available on its
Internet website information on the inventory of
California trout streams maintained by DFG.
c) Requires the FGC to produce a report every other
year, instead of every year as required by existing law,
regarding progress in implementing the state's wild trout
SB 1148
Page 2
program.
d) Requires DFG every 5 years to update the state
Strategic Plan for Trout Management adopted in 2003, and
specifies objectives the plan shall be intended to
ensure, including providing angling opportunities,
conserving wild and native trout, and ensuring
environmental sustainability and overall ecosystem
watershed health.
e) Requires the plan to be guided by specified
considerations including adaptive management of trout
populations to be self-sustaining, increasing angler
satisfaction, ensuring appropriate age distribution of
wild trout, and establishing ecologically and
environmentally sustainable hatchery and stocking
practices for native and wild trout.
f) Requires DFG to prepare trout management plans
consistent with the Strategic Plan for Trout Management,
for all wild trout waters within three years following
designation of a wild trout water by the FGC, and to
update the plans every 5 years.
g) Requires priority to be given for stocking native
hatchery-produced species where stocking is determined
appropriate by DFG. Requires hatchery-produced trout to
be stocked to support sustainable angling opportunities
and trout fishing access, including urban fisheries.
h) Requires all hatchery-produced California native
trout to be marked and, with limited exceptions, requires
all hatchery-produced fish to be sterile.
i) Requires DFG to establish a Hatchery Independent
Science Panel, as specified. Among other things, the
panel shall provide DFG recommendations on adaptive
management of stocking plans on a watershed basis, and on
fisheries assessments for California native trout
species. Requires the Panel to submit an annual report.
j) States that the purpose of the Hatcheries and Inland
Fisheries Fund (HIFF) is to promote angling opportunities
and conserve wild and native trout, and to ensure
thriving, self-sustaining native trout populations.
aa) Deletes outdated obsolete provisions relating to
state hatchery production goals and clarifies that the
state hatchery production goal is 2.75 pounds of released
trout per sport fishing license sold, and that a
predominant number of released fish are of catchable size
or larger.
bb) States that the $2 million dedicated under existing
SB 1148
Page 3
law to the Heritage and Wild Trout program from the HIFF
may be used for development of trout management plans,
and that up to 25% may be expended for watershed
restoration projects, resource assessment and scientific
inquiry. Clarifies that funds from the HIFF may be used
for development of the state Strategic Plan for Trout
Management, and states that funding for Heritage Trout
Waters is a priority for the HIFF.
cc) Authorizes DFG to obtain hatchery-produced fish from
privately owned hatcheries to supplement state hatchery
production if necessary to meet state targets for
hatchery production, provided specified criteria are met,
including that DFG has determined, following an
inspection, that the private hatchery meets standards to
prevent spread of disease and invasive species that are
at least as stringent as those in effect at state
hatcheries, and that the cost per pound does not exceed
the cost to DFG of state produced hatchery fish.
Requires DFG to report annually to the fiscal committees
of the Legislature on implementation of these
requirements.
4)Establishes a program for review, approval and oversight of
mitigation and conservation banks as follows:
a) States legislative findings and declarations
regarding the values and importance of conservation and
mitigation banks in providing habitat lands which are
managed to fulfill mitigation requirements, and the need
for greater transparency to ensure mitigation
requirements are fully met and to fund the regulatory
costs of DFG related to mitigation and conservation
banks.
b) Defines conservation bank, mitigation bank and
related terms.
c) Requires any person seeking to establish a
mitigation or conservation bank to submit a bank
prospectus to DFG with a fee of $10,000 to cover the
costs of DFG's review. Specifies what must be included
in a bank prospectus. Establishes procedures for DFG's
review and approval of a bank prospectus.
d) Authorizes any person interested in establishing a
bank to submit an optional draft prospectus for review by
DFG, accompanied by a fee of $1,500 to cover DFG's costs,
with total review fees for a prospectus not to exceed
$10,000.
SB 1148
Page 4
e) Once the bank prospectus is approved, allows the
applicant to submit a bank agreement package to DFG.
Requires the agreement package to be consistent with the
prospectus and contain specified information including,
among other things, a management plan, a bank closure
plan, a draft conservation easement, a credit ledger and
release schedule, an economic analysis of funding needed
to support the bank in perpetuity, financial assurance
estimates, and a phase 1 environmental assessment.
Requires payment of a $25,000 fee to cover DFG's review.
Establishes procedures for DFG's review and approval of
the package, including authority for assessment of
additional fees if necessary to cover DFG's review of new
information or substantial changes.
f) Provides similar procedures and fee requirements for
amendments to approved banks.
g) Prohibits any bank from being operative, vested or
final, and prohibits any bank credits from being issued,
until DFG has provided written approval of a bank and a
conservation easement has been recorded on the site.
h) Requires DFG after a bank is approved to conduct
compliance review and to establish and maintain a
database, available on DFG's website or another federal
or state government website that is linked to DFG's
website, which allows bank sponsors to update information
about mitigation and conservation banks.
i) Requires DFG to collect a fee of $250 per bank
credit sold.
j) Requires DFG to annually adjust mitigation and
conservation bank fees to reflect changes in the Implicit
Price Deflator, and authorizes DFG to adopt guidelines
and criteria to implement mitigation and conservation
bank requirements.
5)Makes the following changes relating to fees charged for fish
and game activities:
a) Requires FGC to adjust license, stamp, permit and
tag fees for inflation based on changes in the Implicit
Price Deflator, pursuant to Section 713 of the Fish and
Game Code, at least every 5 years.
b) Requires, with regard to the fees for lifetime
sportsmen's licenses, sport and commercial fishing
licenses, commercial fish business and vessel licenses,
hunting licenses, ocean sport fishing enhancement stamps,
commercial fishing enhancement stamps, and trapping
SB 1148
Page 5
licenses that the FGC adjust the license fees to
recover, but not exceed, all reasonable administrative
and implementation costs of DFG and the FGC relating to
those licenses.
c) Requires DFG annually to adjust the fees for
streambed alteration agreements to reflect changes in the
Implicit Price Deflator, pursuant to Fish and Game Code
Section 713.
d) Provides that except where the Fish and Game Code
expressly prohibits the adjustment of statutorily imposed
fees, the FGC may establish a fee or the amount thereof
by regulation. Requires that fees established by the FGC
shall be in an amount sufficient to recover all
reasonable administrative and implementation costs of the
FGC and DFG relating to the program for which the fee is
paid. Authorizes the FGC to establish a fee structure to
phase in fee adjustments to provide for full cost
recovery within 5 years.
e) Clarifies the DFG's authority to establish and
adjust fees for CEQA filings, streambed alteration
agreements, and scientific collector permits. Requires
that the fees be sufficient to recover all reasonable
administrative and implementation costs and authorizes
DFG to establish a fee structure to phase in fee
adjustments to provide for full cost recovery within 5
years.
6)Shifts responsibility from the FGC to DFG for various aspects
related to updates to and adaptive management of Marine
Protected Areas (MPAs). Requires DFG to act on petitions
every 3 years for modifications to MPAs. Requires DFG to
establish a process for external peer review of the scientific
basis for any additions, deletions or modifications to MPAs.
Requires DFG prior to considering recommended actions on such
petitions to convene a workshop of interested parties in the
bio-geographical region. Requires DFG every 7 years to
conduct a review of the effectiveness of the statewide MPA
network and provide a report to the Secretary for Natural
Resources.
7)If DFG after 60 days' notice fails to act in its statutory
role as trustee for the state's fish and wildlife, authorizes
a trustee with standing to protect fish and wildlife to bring
a civil action in superior court. Requires that any damages
for fish and wildlife and DFG's reasonable costs are payable
SB 1148
Page 6
to DFG.
8)Clarifies that except where expressly provided otherwise,
violations of the Fish and Game Code are strict liability
offenses punishable as a misdemeanor.
EXISTING LAW :
1)Establishes DFG in the Natural Resources Agency and provides
that wildlife resources are held in trust by DFG for the
people of the state, and generally charges DFG with
administration and enforcement of the Fish and Game Code,
along with the FGC.
2)Establishes the FGC in the Constitution and authorizes the
Legislature to delegate to the FGC powers relating to the
protection and propagation of fish and game. The Legislature
has delegated by statute to the FGC the power to regulate the
taking or possession of birds, mammals, fish, amphibians and
reptiles in accordance with prescribed laws.
3)The numerous statutory responsibilities of DFG and the FGC
include but are not limited to: regulation of the catch and
take of species; protection of wildlife and their habitats;
conservation of endangered and threatened species; operation
of hatcheries for various fisheries; protection of streambeds
from harmful activities; management of lands set aside for
fish and wildlife habitat and access to lands for recreational
activities such as fishing and hunting. DFG also is a
responsible agency under CEQA on proposed projects that may
have a significant impact on fish and wildlife resources.
4)Provides in the Fish and Game Code for various licenses and
permits, the fees for which are in some cases set in statute
and in other cases set by DFG or the FGC. Many but not all of
the fees are adjusted for inflation.
5)Establishes a state policy to maintain wild trout fisheries
and discourages artificial planting of hatchery raised
nonnative fish in wild trout waters. Provides for designation
of Heritage Trout Waters containing indigenous native trout
species. Requires that one third of sport fishing license fees
be used for attaining specified production goals for state
hatcheries by certain dates, and designates $2 million of
those funds for the Heritage and Wild Trout program.
SB 1148
Page 7
6)Directs DFG to establish and update a database of wetlands
mitigation banks. Establishes a state policy to preserve
wetlands habitat and requires DFG to develop and administer a
program for wetlands mitigation banks in the Sacramento/San
Joaquin Valley.
7)Requires the FGC every three years after MPAs are established
to receive and consider petitions for modifications to the
MPAs.
8)Provides that most of violations of the Fish and Game Code are
crimes punishable as misdemeanors.
9) Requires the OPR to develop an Environmental Goals and Policy
Report.
FISCAL EFFECT : Unknown
COMMENTS : This bill implements numerous changes designed to
implement broad policy recommendations arising out of a
Strategic Vision process facilitated this past year to improve
the capacity of DFG and the FGC to carry out their public trust
mandates for protection and management of fish and wildlife. AB
2376 (Huffman), Chapter 424, Statutes of 2010, directed the
Secretary of Natural Resources to appoint a state executive
committee, blue ribbon citizen commission (BRCC), and
broad-based stakeholder advisory group to engage in a public
deliberative process and develop recommendations on ways to
improve the effectiveness of DFG and the FGC. The groups met
for several months, released a draft interim strategic vision in
November 2011, and a final report in April 2012. The report
includes numerous recommendations on such issues as mission,
scope of responsibilities, scientific capacity and integrity,
principles that should guide natural resources management,
permitting and enforcement. Senator Pavley and Assembly Member
Huffman, as the chairs of the two policy committees with subject
matter jurisdiction, introduced companion measures to serve as
vehicles for implementing various recommendations coming out of
or related to the strategic vision process.
This bill contains five major themes: it modifies various fee
authorities of DFG and the FGC to allow for recovery of
administrative costs; establishes a process for review, approval
and oversight of mitigation and conservation banks; updates
SB 1148
Page 8
California's hatcheries and wild trout program; shifts
responsibility for certain aspects of MPA adaptive management
from the FGC to DFG; and creates a civil remedy for wildlife
violations. While not all of the details in this bill are
mentioned specifically in the final Strategic Vision report, the
provisions are consistent with the general recommendations and
overall policy goals of the report.
Mitigation and Conservation Banks : This bill creates a program
for review, approval and oversight of mitigation and
conservation banks. These changes will facilitate private
sector participation in providing necessary mitigation
opportunities and are supported by the mitigation and
conservation bank industry. Mitigation and conservation banks
are entities established by private firms to offer mitigation to
project proponents for projects requiring permits from DFG.
Conservation banks are generally understood to provide
mitigation for species, while mitigation banks are generally
understood to provide mitigation for wetlands losses. DFG has
found that mitigation and conservation banks can provide more
effective habitat conservation than piecemeal per project
mitigation, but available information on the status of banks has
been limited. Although mitigation and conservation banks have
been an ongoing activity for many years, the policy has for the
most part not been codified or formalized. Also, without an
established funding source, DFG has suspended approval of any
new mitigation banks at this time. This bill provides the fee
revenue to cover DFG's program costs, which promotes the
Strategic Vision goal of ensuring that programs have identified
funding sources. The database requirements also further the
goals of increasing transparency and accountability. The option
allowing an applicant to submit a draft prospectus for
pre-review is a good example of one way to meet the goals,
identified in the Strategic Vision, of providing assistance to
applicants with pre-project planning and making the application
review process more consistent and transparent to applicants.
Hatcheries and Native Trout : This bill makes numerous reforms
to update DFG's hatcheries and wild trout programs. Among other
things, it reflects advancements in the scientific understanding
of the impacts of hatchery practices on native fish populations,
and the importance of genetic diversity in maintaining wild
self-sustaining populations. This bill seeks to balance the
goal of providing quality outdoor recreational opportunities for
fishermen who pay license fees that support fishery programs,
SB 1148
Page 9
with the goal of sustainable ecosystem-based management. The
Strategic Vision places a priority on science-based
decision-making and overall ecosystem health. The inland trout
programs remain committed to providing angler opportunities and
will, through specific guidance, aim to better incorporate
science in the sustainable management of the fisheries. Regular
updates to the existing Strategic Plan for Trout Management are
proposed to provide an overarching systematic framework for the
management of all trout species. Many elements of existing
formal and informal science-based trout policy are codified to
ensure continuance, and stocking plans are to be developed
specific to individual waters to maintain ecosystem balance.
This bill seeks to incorporate best practices into hatchery
production. Maintaining and promoting genetic diversity in
hatchery fish is recognized as critical to producing robust and
resilient fish and a healthy fishery. A Hatchery independent
science panel under the independent science advisory panel
(proposed to be established by the companion bill AB 2402) will
provide expertise, oversight and an independent review capacity
as production practices evolve. The Heritage and Wild Trout
Programs are specifically prioritized to continue, if not
accelerate, the protection of wild and heritage trout waters and
the native species that populate them. The existing "AB 7"
policy to promote angler opportunities is retained, and its
goals are clarified to align with current practice and
scientific understanding. The department is specifically
authorized to purchase trout from private hatcheries to meet
trout stocking goals, if specified conditions are satisfied.
Overall, these reforms are designed to provide a reliable and
robust trout fishery that is sustainable and protective of the
environment state-wide.
With regard to the specific goals and recommendations of the
Strategic Vision, the hatchery and wild trout reforms in this
bill promote the identified goals of maintaining healthy
ecosystems, promoting public outdoor recreation opportunities,
practicing adaptive management, ensuring science-based
decisions, and promoting ecosystem based management informed by
credible science. The requirement for DFG to make information
on trout inventories available on DFG's website also promotes
the Strategic Vision's goal of providing timely access to data
collected or used by DFG and the FGC. Finally, these provisions
recognize the changing diversity of California by requiring that
areas where hatchery-produced trout are stocked to provide
SB 1148
Page 10
angling opportunities and fishing access include urban
fisheries.
Cost Recovery : This bill includes provisions allowing DFG and
the FGC to adjust various licensing fees to achieve cost
recovery, with direction to phase in fee increases as necessary
for various programs. These changes apply to both sport and
commercial fishermen and to hunters. The "Barriers to
Implementation" report accompanying the Strategic Vision final
report identified inadequate funding as one of the greatest
barriers to implementation of DFG's mission. The report also
acknowledged that any meaningful change must include fiscal
reforms. The provisions in this bill giving DFG and the FGC
authority to adjust fees as necessary to recover program costs
is consistent with recent legislative actions giving more fee
setting authority for fishing and hunting to the FGC which would
set the fees through a regulatory process under the
Administrative Procedures Act (APA). Information provided by
DFG and FGC staff early on in the Strategic Vision process
emphasized the need for financial stability, and the difficulty
both entities face with unfunded mandates. In particular, DFG
and the FGC noted that 57% of the fees for licenses and permits
in the Fish and Game Code require legislative action in order to
adjust fees to bridge the gap between revenues and operational
costs. The Legislature has frequently imposed new statutory
mandates on DFG without providing the funding necessary for
implementation. This bill begins the process of correcting that
problem by shifting authority from the Legislature to the FGC
and DFG to make adjustments in fees as necessary to recover
reasonable administrative and implementation costs relating to
the particular license or permit.
Enforcement : A key recommendation of the Strategic Vision is to
seek statutory changes to create effective deterrents to illegal
take of fish and wildlife species. One of the problems in
providing an effective deterrent has been the lack of
prosecution and adjudication of wildlife crimes which frequently
get dismissed by the courts if they are prosecuted at all. This
bill seeks to partially address this problem by providing that
if the department or district attorney fails to prosecute a
violation, a private civil action could be brought by a
landowner to recover damages in superior court. Any damages for
fish and wildlife would be payable to DFG, as the trustee for
all of the state's wildlife. This bill also clarifies that,
except where otherwise specified, violations of the Fish and
SB 1148
Page 11
Game Code are strict liability offenses, much like traffic
violations. Historically this has long been recognized to be
the case, however, a recent court decision in a completely
unrelated sex offender case resulted in a new criminal jury
instruction that has cast doubt on whether courts should apply
strict liability. Similar to traffic violations, where a driver
cannot claim ignorance of the law to get out of a speeding
ticket, the Fish and Game Code does not require prosecutors to
prove an intent to violate the law, which is the meaning of
strict liability.
Environmental Goals and Policy Report : The provision directing
specific involvement of DFG in development of the state's
Environmental Goals and Policy Report prepared by OPR was a
specific recommendation of the stakeholder advisory group in
order to ensure the best information on resource protection
activities across the state is included in the report.
Support Arguments : Supporters note the long overdue need for
reform of the state's wildlife management and in particular
highlight support for the provisions transferring responsibility
for ongoing management of California's MPAs, now that the
network of MPAs has been established, to DFG.
Opposition Arguments : Opponents object to the clarification of
strict liability and the private cause of action allowing for
the filing of a civil action where the state fails to prosecute
wildlife violations. They also argue that only recommendations
specifically referenced in the final report of the Strategic
Vision process should be included in this bill.
REGISTERED SUPPORT / OPPOSITION :
Support
Defenders of Wildlife
Endangered Habitats League
Monterey Bay Aquarium
Paw Pac
The Nature Conservancy
SB 1148
Page 12
The Wildlands Conservancy
Opposition
California Farm Bureau Federation
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096