BILL ANALYSIS
SENATE NATURAL RESOURCES AND WILDLIFEBILL NO.: SB 131
Senator Tom Hayden, Chair AUTHOR: Maddy
VERSION:
(Original): 1/23/95
(Amended): 5/3/95
FISCAL: Yes
URGENCY: No
CONSULTANT:Darryl
Young
HEARING DATE: 5/9/95
SUBJECT:
Endangered Species
ISSUE:
How should California protect its endangered and threatened
plants, wildlife and their habitats?
SUMMARY:
SB 131 would repeal the California Endangered Species Act
and replace it with a new act that changes the listing and
recovery process. The measure repeals the Native Plant
Protection Act. SB 131 changes the stateos policy on the
protection of endangered species.
BACKGROUND & EXISTING LAW:
Under Fish and Game Code 86:
oTakeo is the technical term for kill. Current law defines
take to mean hunt, pursue, catch, capture, or kill, or
attempt to hunt, pursue,
catch, capture, or kill.o
The California Endangered Species Act (CESA)
1) CESA contains findings and declarations which note
that:
Species are going extinct obecause their habitats are
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threatened with destruction, adverse modification,
or severe curtailment or bcasue of
over-exploitation, disease, predation or other
factors.o section 2051(b)
Such species are of oecological, educational,
historical, recreational, estehetic, economic and
scientific value to the people.o section 2051(c)
It is the policy of the state to conserve, protect,
restore and enhance any threatened or endangered
species and its habitat. section 2052 oConserveo
is defined as including habitat acquisition and
restoration. section 2061
It is the intent of the legislature to accquire lands
for habitat for the protection of these species.
section 2052
2) LISTING OF SPECIES
Candidate, threatened, or endangered species are
listed by the Fish and Game Commission. section 2070
A listing petition may be filed by any person or the
Department of Fish and Game (DFG). A petition to
list a species is reviewed and evaluated by DFG and
reported to the Commission within 90 days. section
2073.5
To be accepted, the petition must contain sufficient
information to support a finding by DFG that
listing of the species omay be warrantedo. section
2072.3
If the Commission determines that a listing may be
warranted, it is designated as a ocandidate
specieso. section 2074.2(2) DFG then has one year
to review the best available scientific data on the
status of the species. section 2074.6
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DFG then reports to the Commission if a listing is
warranted , what habitat is essential to the species
and omangement activites and recommendations for the
recovery of the species.o section 2074.6
If the Commission determines a listing is warranted
the listing goes through the formal regulatory
process including approval by the Office of
Administrative Law. section 2075.5(2) A Commission
listing decision is Judicially reviewable. section
2076
3) PROTECTION OF LISTED SPECIES
Once a species is listed, CESA requires each state
agency that to consult with the DFG to ensure that
projects under their review are not likely to
jeopardize the continued existance of a listed
species or their habitat. section 2090(a)
At the conclusion of the consultation process DFG must
issue a wrtiten finding whether the state agency
project may jeopardize a species or its habitat.
section 2090(b)
If the project does jeopardize a species, then DFG
must include in its written finding reasonable
alternatives to the project. DFG may also recommend
measures to limit the extent of taking incidental to
the project or alertnatives. section 2091.
The state agency is required to implement one of the
Departmentos recommended alternatives unless it
finds that specific economic, social or other
conditions make the alternatives infeasible and the
project as proposed will not cause the species to
become extinct. section 2092
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4) TAKING
CESA prohibits any person from otakingo any listed
species or any species which is a candidate for
listing.
Taking is defined as: oto hunt, pursue, catch,
capture, or kill, or attempt to hunt, pursue, catch,
capture, or kill.o (section 86)
Exceptions to taking:
DFG may authorize oincidentalo taking by state
agencies through the formal consultation process
DFG may authorize permits, commonly known as
Section 2081 permits to oindividuals, public
agencies, universities, zoological gardens, and
for scientific or educational, and management
purposes.o
The Native Plant Protection Act
Contains similar findings and declarations to CESA. section
1900
Plants are listed as either endangered or rare by the
Commission after notice and public hearing. section 1904
Once listed DFG notifies land owners where the plant is
growing and provides information about the protection of
the plant.
NPPA prohibits any person from taking a rare or endangered
plant with several execptions including for scientific or
propagation purposes. Even if an activity is exempted, a
landowner who has recieved notice from DFG of the
presence of a listed species may not proceed until DFG is
given at least ten days to salvage the listed plants.
NATURAL COMMUNITY CONSERVATION PLANING ACT (NCCP)
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Requires DFG to authorize taking of an endangered species
as part of an
natural community conservatoin plan.
PROPOSED LAW
NEW CESA
1) LEGISLATIVE FINDINGS AND DECLARATIONS
Proposed section 2051 decouples endangered species from
habitat. Supercedes existing language that habitats
are othreatened with destruction, adverse
modification, or severe curtailment.o existing section
2051(b)
Proposed section 2052 no longer mentions aquisition of
habitat and states in proposed section 2052(f), that
protection, and enhancement is best achieved by merely
oinformingo the public.
Proposed section 2052(a) limits protection to measures
that oappropriatelyo conserve, protect, restore, and
enhance threatened and endangered species. oConserveo
under the proposed section 2061 would change the focus
from recovery of a species to a vaguer standard of
maintenence of obiological survivablityo.
Proposed section 2052(c) prioritizes the use of existing
public land for management of endangered species on
the condition that the land be oconsistent with the
primary purpose of the public land.o
2) LISTING OF SPECIES
a) All existing endangered and threatened species on
January 1, 2001 would be delisted unless the Department of
Fish and Game presented oclear and convincingo evidence to
the Fish and Game Commission that the continued listing is
warranted. oClear and convincingo is a higher standard
from osufficient scientific informationo new required.
Requires DFG review listings every 5 years. proposed
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Section 2808(a)-(d)
b) For a petition to be accepted, the petition must
contain
sufficient information in addition to oclear and convincing
evidenceo as well as a new list of detailed information
about
lifecycle, habitat location, location of surveys, dates,
time, and
hour data, and phone numbers of persons with casual
knowledge of
information relied on by the petitioner. proposed section
2070(c)(1)-(5)
c) A new listing process would require:
A notice of petition must be published in the
California Regulatory Notice Register.
A notice of petition must be mailed to all counties,
cities, and special districts located within the
potential habitat area.
A notice of Commission receipt of Department comments
is required and a petition must be available in the
affected area.
A notice of the Commission's finding of acceptance or
rejection must be published.
Reasonable attempts to notify affected and interested
parties would be required. Such efforts must include
press releases, correspondence and news articles.
Land and water right owners must also be notified of
the commission's acceptance of a petition.
The commission would be required to notify by mail all
cities, counties, and special districts within the
species potential habitat area of the Commissionos
acceptance of a petition.
The Department would be required to review, and
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solicit detailed public input, provide peer review,
recommend acceptance or denial and report back to
the Commission within 12 months.
The Department of Fish and Game would be required to
identify habitat necessary for species survival and
(2) create a conceptual strategic plan for the
species.
The Commission would again notice the report, provide
for public review, and make the Department's report
available in the affected area.
If the petition was found to be warranted the
Commission would be required to publish in the
Regulatory Notice Register and go through a rule
making adoption. The proposed legislation gives
project opponent, another forum to contest the
adoption procedures.
This proposed section would create a new requirement
for an economic impact analysis with it's own set of
comment periods and notice requirements.
d) The current designation and protection of ocandidate
specieso
would be eliminated.
4) PROTECTION OF LISTED SPECIES
Deletes the existing state agency consultation
requirement under CESA and replaces it with a
provision permitting lead agencies to impose
discretionary, feasible mitigation measures on
projects pursuant to a weaker CEQA standard. proposed
section 2086(a)
If the project proponent or DFG objects to the
mitigation measures and the lead agecy or project
proponent do not agree to the objections, the project
proponent can request binding arbitration to resolve
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the objections. proposed section 2086(b)
For activities not considered oprojectso under CEQA, the
proponent may request the Department to determine
whether the activity will likely to result in a take
that would make the species extinct. proposed section
2087(a)
All activities involving five acres or less are exempt
unless the species is oin imminent danger of
imperilment.o proposed section 2087(e)
5) TAKE
oTakeo is redefined from ohunt, pursue, catch, capture,
or kill,o to ohunt, pursue, catch, capture, or kill an
individual species.o proposed section 2088
Continues the narrower otakeo prohibition with respect
to listed animals species, but not plant species.
Instead of requiring landowners with listed plants to
give DFG ten days to salvage the listed plants, SB 131
estabishes the following process:
The land owner notifies DFG of their intention to
develop the land. DFG has 30 days from notification
to decides whether they intend to salvage the plant.
DFG must salvage the plant oat the earliest
biologically feasible timeo within 12 months. If
the salvage time will be longer than 120 days DFG
must recommend feasible measures to allow
development to continue.
If the department fails to respond within 30 days of
the initial notice or fails to complete salvage
within 12 months, the owner may remove the plant.
c) Adds several new exceptions to animal take prohibition
including:
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Projects approved pursuant to CEQA.
Projects where a lead agency and DFG Director find
that the project would owould not likely resulto in
a threatened species from becoming endangered or a
endangered species from becoming extinct.
Any activity for the protection of public health and
safety.
Any activity to relieve the effects of a natural
disaster.
The construction and maintenance of security devices
at prisions.
Actions to return land to the condition in which it
existed on January 1, 1996 in order to carry on
activities neccessary to the primary purpose of the
land
oRoutine and customaryo agricultural activities
Plants are subject to a new, narrower otakeo prohibition
also subject to a number of exceptions.
NATIVE PLANT PROTECTION ACT:
The native plant protection act is repealed entirely.
OTHER PROVISIONS:
Amends a section of the NCCP Act to allow taking of a
species if it is incidental to a project in an area covered
by a NCCP.
COMMENTS:
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According to the author the purpose of the bill is to
address problems with the California Endangered Species
Act. They state that the endangered species act is too
rigid and counterproductive. The author states that this
bill establishes incentives for good stewardship.
2) Opponents argue that SB 131:
Repeals the law that protects both Calfornia wildlife
and the open space habitat in which wildlife resides.
Removes habitat protection and regulation in current
law. The change in the definition of the term otakeo
will eliminate the sanctions which now penalize
illegal habitat destruction. The new definition would
change key Fish and Game code sections and make
criminal convictions for violating wildlife laws
unlikely.
Removes the stateos primary tool for species recovery by
eliminating the mention of acquistion of habitat in
its findings on the conservation, protection, and
enhancement of habitat.
Fails to create a measurable policy objective. Whereas
current law requires action be taken on endangered
species, SB 131 is an vague promise of possible
results based on speculative future planning.
Removes the current prohibition of state agency actions
which jeopardize the existence of a species. The
proposed language will free the Department of Water
Resources to kill the remaining spring, winter, and
fall runs of salmon at the State Water Project pumps.
DWR would only be required to oseek to conserveo
endangered salmon, but the law would not bar actions
jeopardizing the existence of salmon. Salmon would be
oconservedo into extinction.
Establishes a new private property rights policy where
any property owner could charge that endangered
species protection was depriving them of the
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oeconomically viableo use of their land. Under this
policy CESA could be suspended by a court or executive
order.
Abandons the long held California goal of recovering
species that are sliding towards extinction. The term
orecoveryo is abandoned in favor of the weaker and
more ambiguous term osurvivabilityo.
Would increase the likely extinction of endangered
species by asserting that it is not feasible or
affordable to protect all species, allowing some
species and habitat to go extinct.
The proposed listing process is lengthy, cumbersome,
drawn out and fails to provide interim protection of
the species proposed for listing.
Removes ocandidate specieso protection. The required
disclosure of detailed population location data and
the long listing process would allow industry to find
and destroy habitat of endangered species without
penalty.
Uses a higher less provable standard of oclear and
convincing scientific or commercial informationo in
listing decisions.
Contains massive loopholes where any endangered animal
could be legally destroyed.
Weakens CEQA protection by limiting mitigation to both
ofeasibleo and oproportionalo.
Could preempt local governmentos land use authority by
giving project proponents unhappy with a local agency
decision the opporutunity to seek arbitration.
Additionally, third parties would be able to intervene
in the process and futher holding local land use
hostage.
Gives too much power to the DFG Director by allowing
them to exempt development activities that are not
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CEQA projects from the take prohibition.
SUPPORT
California Resources Agency (Sponsor)
Louisiana Pacific Corporation
California Association of Realtors
California Chamber of Commerce
California Building Industry Council
California Independent Petroleum Association
California Forestry Association
Kern County Water Agencies
Western Growers Association
Pardee Construction Company
Shapell Construction (Check)
OPPOSED
California State Bar, Environmental Law Section
American Planning Association, California Chapter
California Association of Professional Scientists
Sierra Club California
Planning and Conservation League
National Audubon Society
California Native Plant Society
California League of Conservation Voters
Contra Costa Humane Society
Mountain Lion Foundation
California Federation for Animal Legislation
Friends Aware of Wildlife Needs