SB 473

Bill Subjects

Abstract

(1) Existing law, the California Endangered Species Act, prohibits the taking of an endangered or threatened species, except in certain situations. Under the act, the Department of Fish and Wildlife may authorize the take of listed species pursuant to an incidental take permit if the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, and the issuance of the permit would not jeopardize the continued existence of the species. The act requires the department to adopt regulations for issuance of incidental take permits. This bill would also apply the take prohibition to public agencies. The bill would require the department, commencing January 1, 2019, to post each new incidental take permit issued on the department's Internet Web site within 15 days of the effective date of the permit. (2) The California Endangered Species Act provides that if any person obtains from the United States Secretary of the Interior or the United States Secretary of Commerce an incidental take statement or incidental take permit pursuant to the federal Endangered Species Act of 1973 that authorizes the taking of an endangered species or threatened species listed pursuant to the federal act that is also an endangered species, threatened species, or candidate species under the California act, no further authorization or approval is necessary under the California act for that person to take that species, if that person notifies the Director of Fish and Wildlife, as specified, unless the director determines that the incidental take statement or incidental take permit is not consistent with the California act. This bill would include, with this notice requirement, a requirement that the person pay a permit application fee. (3) The California Endangered Species Act requires payment of a permit application fee for the processing of a permit application for the take of a species listed under the act, with certain exemptions. Under the act, the amount of the fee is based, in part, on the project cost, with "project cost" defined to include, among other expenses, permit and license expenses. This bill would clarify that a permit application fee is required for amendment requests, renewal requests, consistency determination requests, and concurrence determination requests, as specified. The bill would modify the definition of "project cost" to specifically exclude permit and license expenses and mitigation costs. (4) The California Endangered Species Act exempts a surface mining operation, if it has been issued a permit pursuant to the Surface Mining and Reclamation Act of 1975, is in compliance with the permit with regard to matters relating to plants, and is in compliance with any memorandum of understanding with the Department of Fish and Wildlife, from criminal prosecution pursuant to the Fish and Game Code for any take of a threatened or endangered plant species that is incidental to the surface mining operation. This bill would repeal this exemption. (5) The California Endangered Species Act permits the Fish and Game Commission to authorize, subject to terms and conditions it prescribes, the taking of any candidate species, or the taking of any fish by hook and line for sport that is listed as an endangered, threatened, or candidate species. This bill would limit this take exemption by permitting the commission to authorize the taking of a species pursuant to this provision only if the take is based on the best available scientific information and consistent with the act. The bill would authorize the Department of Fish and Wildlife to recommend to the commission that the commission authorize, or not authorize, the taking of a species pursuant to this provision. (6) The California Endangered Species Act authorizes the Department of Fish and Wildlife to design and implement actions that can be used to fully mitigate impacts resulting from certain solar thermal, photovoltaic, wind, and geothermal powerplants in the planning area of the Desert Renewable Energy Conservation Plan, as defined. This bill would repeal this provision. (7) The California State Safe Harbor Agreement Program Act establishes a program until January 1, 2020, to encourage landowners to manage their lands voluntarily, by means of state safe harbor agreements approved by the Department of Fish and Wildlife, to benefit endangered, threatened, or candidate species without being subject to additional regulatory restrictions as a result of their conservation efforts. The California State Safe Harbor Agreement Program Act authorizes the department to authorize specified acts with respect to endangered or threatened species that are otherwise prohibited pursuant to the California Endangered Species Act by entering into a state safe harbor agreement. The California State Safe Harbor Agreement Program Act provides that, if a federal safe harbor agreement contains species that are endangered, threatened, or candidate species pursuant to the California Endangered Species Act, and the Director of Fish and Wildlife determines, as provided, that the federal agreement is consistent with the California Endangered Species Act, no further authorization or approval is necessary to take the species in accordance with the federal agreement. This bill would authorize the department to also approve a state safe harbor agreement to benefit declining or vulnerable species, as defined. The bill would clarify that the department may also authorize specified acts with respect to candidate species that may become otherwise prohibited by the California Endangered Species Act. The bill would specify that, if a species covered by an agreement is a declining or vulnerable species, and is subsequently listed as an endangered, threatened, or candidate species pursuant to the California Endangered Species Act, no further authorization or approval is required to take the species in accordance with the agreement, regardless of the species' change in status. If the majority of a property proposed to be enrolled in an agreement is forestland, the bill would require the department, to the maximum extent practicable, to prioritize the review of, and decision to approve, the agreement if the property is encumbered by a conservation easement that requires a permanent commitment to protect, restore, and maintain habitat conditions, as specified. For these prioritized properties, the bill would require the department, to the maximum extent practicable, to rely on the conservation easement to fulfill the requirements for determining an application complete. The bill would also revise the provision regarding federal safe harbor agreements to apply both to federal safe harbor agreements and to federal candidate conservation agreements with assurances. (8) The California Endangered Species Act requires the Fish and Game Commission to establish a list of endangered species and a list of threatened species and to add or remove species from either list if it finds, upon the receipt of sufficient scientific information, as specified, that the action is warranted. The act requires the Department of Fish and Wildlife to recommend, and the commission to adopt, criteria for determining if a species is endangered or threatened. Under the act, an interested person may petition the commission to add a species to, or remove a species from, either the list of endangered species or the list of threatened species. The act requires the commission to refer a petition to the department for initial evaluation, and permits a person to submit to the department information that relates to the petitioned species during this evaluation. The act requires the department to notify the petitioner of information submitted to the department within 10 days of submission. This bill would require a finding by the commission that an action to add or remove a species from the list of endangered species or the list of threatened species is warranted to be based solely upon the best available scientific information. The bill would require the department to notify a petitioner of information submitted to the department during the department's initial evaluation of the petition within 30 days of submission instead of 10 days. (9) The Administrative Procedure Act generally governs the procedure for the adoption, amendment, or repeal of regulations by state agencies and for the review of those regulatory actions by the Office of Administrative Law. The California Endangered Species Act requires the Fish and Game Commission, at the meeting scheduled for final consideration of a petition to add or remove a species from the list of endangered species or the list of threatened species, to make a finding that the petitioned action is warranted or not warranted. Upon a finding by the commission that a petitioned action to add or remove a species from the list of endangered species or the list of threatened species is warranted, the act requires the commission to publish a notice of that finding and a notice of proposed rulemaking under the Administrative Procedure Act, and requires further proceedings of the commission on the petitioned action to be made in accordance with the Administrative Procedure Act. This bill would also require the commission to add or remove a species from the list of endangered species or the list of threatened species upon a finding that a petitioned action is not warranted, but that listing the species at a different status than that requested by the petitioner is warranted. The bill would require the commission, within 30 days of adopting any of these findings in writing, to publish notice of the finding. The bill would not require further proceedings under the Administrative Procedure Act upon adoption of the finding, but instead would require the commission to follow certain procedures for notice and publication of the change in status. The bill would require a finding by the commission pursuant to these provisions to be based on the best available scientific information. (10) The California Endangered Species Act requires the Department of Fish and Wildlife to review species listed as an endangered species or as a threatened species every 5 years to determine if the conditions that led to the original listing are still present. This bill would require the department to review listed species every 5 years only upon a specific appropriation, and would authorize the department to review listed species every 5 years, in the absence of a specific appropriation, if other funding is available. (11) Under existing law, the Department of Fish and Wildlife has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable populations of those species. This bill would authorize the department, under the California Endangered Species Act, to develop and implement a nonregulatory recovery plan for the conservation and survival of any species listed as an endangered species or a threatened species, as provided. The bill would require the department to give priority to those species that are most likely to benefit from a recovery plan, particularly those species populations that are, or may be, significantly affected by anticipated land use changes, climate change, or changes in aquatic conditions. The bill would require recovery plans to include specified information, and would authorize the department, under specified circumstances, to adopt an existing federal recovery plan for a species that is also listed as an endangered species or a threatened species pursuant to the federal Endangered Species Act of 1973. The bill would define the terms "recover" and "recovery" for purposes of the California Endangered Species Act. (12) Existing law requires the Department of Fish and Wildlife to pay the costs of administration of the California Endangered Species Act from the Endangered and Rare Fish, Wildlife, and Plant Species Conservation and Enhancement Account in the Fish and Game Preservation Fund. Existing law establishes the Renewable Energy Resources Development Fee Trust Fund as a continuously appropriated fund in the State Treasury to serve, and be managed, as an optional, voluntary method for developers or owners of eligible projects, as defined, to deposit fees sufficient to complete mitigation actions established by the department and thereby meet their requirements pursuant to the California Endangered Species Act or the certification authority of the Energy Commission. This bill would repeal those provisions. (13) This bill would also make conforming changes, delete obsolete provisions, and make nonsubstantive changes. (14) Under existing law, any violation of the Fish and Game Code, or of any rule, regulation, or order made or adopted under the code, is generally a crime. To the extent that this bill expands the definition of a crime, the bill would impose a state-mandated local program. (15) This bill would incorporate additional changes to Section 2081 of the Fish and Game Code proposed by SB 495 to be operative only if this bill and SB 495 are enacted and this bill is enacted last. (16) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason.