BILL ANALYSIS �
SB 1148
Page 1
SENATE THIRD READING
SB 1148 (Pavley)
As Amended August 20, 2012
Majority vote
SENATE VOTE :24-14
WATER, PARKS & WILDLIFE 8-2APPROPRIATIONS 10-5
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|Ayes:|Huffman, Blumenfield, |Ayes:|Gatto, Blumenfield, |
| |Campos, Fong, Gatto, | |Bradford, |
| |Roger Hern�ndez, Hueso, | |Charles Calderon, Campos, |
| |Yamada | |Davis, Fuentes, Hall, |
| | | |Hill, Cedillo |
|-----+--------------------------+-----+--------------------------|
|Nays:|Bill Berryhill, Beth |Nays:|Harkey, Donnelly, |
| |Gaines | |Nielsen, Norby, Wagner |
| | | | |
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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:
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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 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 DFG to annually increase the percentage of
hatchery-produced California native trout that are marked and
to ensure that trout stocked for recreational purposes are
unable to reproduce, with specified exceptions.
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i) Requires DFG's Strategic Plan for Trout Management to be
reviewed by the Strategic Trout Management Team, the hatchery
operations committee, and an ad hoc peer review committee to
ensure sound management, improved genetic diversity, and best
available science.
j) 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.
aa) States that at least $2 million dedicated under existing law
to the Heritage and Wild Trout program from the Hatcheries and
Inland Fisheries Fund (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.
bb) 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.
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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.
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 or grant deed, 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 requested by the applicant.
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 website that is linked to DFG's
website, which allows bank sponsors to update information about
mitigation and conservation banks.
i) Requires DFG to provide an annual report to the Legislature
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on the mitigation and conservation bank program.
j) Requires DFG to collect a total payment of $60,000 per bank
to cover all or a portion of DFG's bank implementation and
compliance costs, with payments due following credit releases.
aa) Requires DFG to annually adjust mitigation and conservation
bank fees to reflect changes in the Implicit Price Deflator,
and requires DFG to adopt guidelines and criteria to implement
mitigation and conservation bank requirements. The guidelines
shall incorporate information from a 2011 Memorandum of
Understanding the state entered with federal agencies for
purposes of jointly establishing a coordinated approach to
mitigation and conservation banking in California.
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 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) 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.
d) Clarifies the DFG's authority to establish and adjust fees
for CEQA filings, streambed alteration agreements, and
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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 the Ocean Protection Council
(OPC) for future modifications and updates to Marine Protected
Areas (MPAs). Requires the OPC to act on petitions for
modifications every 3 years. Requires DFG prior to OPC's decision
to review the petition and make recommendations to the OPC.
Requires DFG in conducting its analysis to consult with other
agencies with responsibility for ocean activities, including the
FGC, the Regional Water Quality Control Board, the State Lands
Commission, and the Coastal Commission. Requires establishment of
a scientific peer review process and requires the OPC to establish
a process for public participation in the OPC's decisions.
Authorizes the DFG to establish a unit or division of
ecosystem-based management within DFG to facilitate this review
and to further conservation of marine resources under DFG's
jurisdiction.
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
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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.
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.
FISCAL EFFECT : According to the Assembly Appropriations Committee:
1)Unknown workload costs to DFG and the commission to review and
adjust fees as needed (special funds). These costs should be
covered by fee revenue, which DFG and the commission can set to
ensure they do so. However, there may be a lag between the time
DFG and the commission develop and adopt fees and the time any
resulting revenue increase is realized. It is not clear DFG or
the commission has the resources to cover these activities from
other funds until they receive additional fee revenue.
2)Ongoing costs of an unknown amount, but potentially exceeding $1
million dollars annually, to DFG to mark hatchery-produced trout
(special fund).
3)Ongoing cost in the tens of thousands of dollars to DFG to support
the strategic trout management team (special fund).
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4)Significant costs, likely in the low millions of dollars annually,
to DFG to plan, review, establish and monitor conservation and
mitigation bank programs (special fund). These costs should be
fully covered by the fees the bill authorizes DFG to collect from
applicants.
5)Ongoing costs, possibly in excess of $1 million dollars, to the
Ocean Protection Council, to regulate commercial fishing in MPAs
(special fund). These costs should largely be offset by savings
to the commission, which will no longer regulate fishing in MPAs.
COMMENTS : This bill implements numerous changes designed to
implement broad policy recommendations arising out of a Strategic
Vision process conducted 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 to improve the effectiveness of DFG and the FGC.
The groups met for several months and released a final report in
April 2012. The report includes broad recommendations on such
issues as mission, scope of responsibilities, scientific capacity,
principles to guide natural resources management, permitting and
enforcement.
This bill contains four 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 California's
hatcheries and wild trout program; and shifts responsibility for
certain aspects of MPA adaptive management from the FGC to the OPC.
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.
This bill creates a program for review, approval and oversight of
mitigation and conservation banks. These changes facilitate private
sector participation in providing necessary mitigation opportunities
and are supported by many participants in the mitigation and
conservation bank industry. Mitigation and conservation banks are
entities established by private firms to offer mitigation to project
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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. In the absence of
an established funding source, DFG has also 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
increased transparency and accountability. The option allowing an
applicant to submit a draft prospectus for pre-review seeks 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.
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, with the goal of sustainable ecosystem-based
management. The Strategic Vision placed a priority on science-based
decision-making and overall ecosystem health. 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. This bill also 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. Existing
policy and numerical goals on stocking to promote angler
opportunities, established through AB 7 (Cogdill), Chapter 689,
Statutes of 2005, are retained, and program goals are clarified to
align with current practice and scientific understanding. DFG is
specifically authorized to purchase trout from private hatcheries to
meet trout stocking goals, if specified conditions are satisfied.
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The hatchery and wild trout reforms in this bill seek to promote the
goals identified in the Strategic Vision 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. These provisions recognize the changing
diversity of California by requiring that areas where
hatchery-produced trout are stocked to provide angling opportunities
and fishing access include urban fisheries.
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.
Inadequate funding was identified in the Strategic Vision process as
one of the greatest barriers to implementation of DFG's mission, and
it was acknowledged that 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 but not exceed reasonable administrative and implementation
costs relating to the particular license or permit.
Supporters of this bill 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 the OPC. Opponents in particular objected to
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provisions included in prior versions of this bill clarifying strict
liability for fish and game code violations and creating a private
cause of action allowing for the filing of a civil action where the
state fails to prosecute wildlife violations. It should be noted
that the private cause of action and strict liability provisions
were deleted from this bill in amendments taken in the Assembly
Appropriations Committee. Some opponents also raised concerns with
prior language in this bill which shifted responsibility for future
modifications of MPAs from the FGC to DFG. Amendments taken in the
Assembly Appropriations Committee also amended the MPA related
provisions to shift these responsibilities instead to the OPC.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096
FN: 0005137