Endangered Species Law and Policy : Environmental and Natural Resources Attorneys from Nossaman

Senator Lois Wolk has introduced two separate bills into the California Senate to amend the California Endangered Species Act (CESA) and Natural Community Conservation Planning Act (NCCPA).

SB 1303, as amended, would amend section 2087 of the California Fish and Game Code, which exempts otherwise lawful “routine and ongoing agricultural activities” from the take prohibitions established by CESA. Routine and ongoing agricultural activities are defined by regulation to include, among other things, “any practices performed by a farmer on a farm as incident to or in conjunction with [ ] farming operations.”  Cal. Code Regs. tit. 14 § 786.1.

Presently, section 2087 is set to expire on January 1, 2011. SB 1303, as amended, would extend the expiration date to January 1, 2012. The bill has broad support from the agricultural community. Absent this provision, supporters argue that farmers may be subject to penalties under CESA if their lands provide habitat for listed species, which creates an incentive structure that could undermine the purposes of CESA.

The bill was passed out of the Committee on Natural Resources and Water and is set to be heard by the Committee on Appropriations on May 3, 2010.

SB 1334, as amended, would amend section 2820 of the California Fish and Game Code, which is a provision of the NCCPA. The NCCPA authorizes the California Department of Fish and Game to enter into a planning agreement with any person or public agency to prepare a natural community conservation plan (NCCP) in cooperation with a local agency that has land use permit authority over the activities proposed to be addressed in the plan, to provide comprehensive management and conservation of multiple wildlife species. Cal. Fish & Game Code § 2810(a). An approved NCCP may permit take of threatened or endangered species that is otherwise prohibited by CESA, provided such species are covered by the plan. Section 2820 sets forth the findings that the Department of Fish and Game must make in order to approve a NCCP. Id. § 2820.

SB 1334 would amend section 2820(a)(1), which requires the Department to make a finding that the NCCP “has been developed consistent with the process identified in the planning agreement entered into pursuant to Section 2810”, by adding the following clause “including cooperation with all local agencies that have land use permit authority over the activities proposed to be addressed in the plan.” This proposed amendment is a response to the Bay Delta Conservation Planning process, and its supporters contend that the steering committee for the Bay Delta Conservation Plan has failed to work cooperatively with local land use authorities to date.

The bill was passed out of the Committee on Natural Resources and Water and is set to be heard by the Committee on Appropriations on May 3, 2010.
 

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The California Fish and Game Commission provided notice (PDF) that it will be holding a hearing in Stockton on Wednesday, May 5, 2010 at 8:30 am to take comments on the listing of the California tiger salamander to the list of threatened animals pursuant to the California Endangered Species Act.  The Department of Fish and Game submitted a status review (PDF) of the California Tiger Salamander to the Commission on January 11, 2010.

As detailed in the notice, written comments are requested to be submitted on or before April 30, 2010, but must be received no later than 5:00 p.m. on May 3, 2010.  All comments must be received no later than May 5, 2010 at the hearing in Stockton. 

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Assemblyman Jared Huffman has introduced Assembly Bill 2420 (PDF) to amend the provisions of the California Endangered Species Act (“CESA”) that allow persons who obtain incidental take authorization under the federal Endangered Species Act (“ESA”), to also obtain take authorization from the Director of the California Department of Fish and Game for species listed under both laws, provided the Director determines that such federal take authorization is consistent with CESA.

AB 2420 would revise section 2080.1 of the California Fish and Game Code. As presently written, that section requires persons that seek consistency determinations to provide the Director with either an incidental take statement issued pursuant to section 7 of the ESA or an incidental take permit issued under section 10 of the ESA. AB 2420 would require persons that seek consistency determinations to provide the Director with both a biological opinion and incidental take statement or a conservation plan and incidental take permit as well as notice of the required measures in those documents that fulfill the incidental take permitting requirements set forth in section 2081(b) of CESA. Furthermore, AB 2420 would require the Director to determine whether notice provided by the person seeking a consistency determination is complete within seven days of receipt. In the event notice is incomplete, the Director would be required to provide an immediate, written response. In the event notice is complete, the Director would have 30 days to make a consistency determination.

On March 23, 2010, the Committee on Water, Parks, and Wildlife is scheduled to hold a hearing on AB 2420.
 

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In a 3-2 vote, the California Fish and Game Commission ruled yesterday that the California tiger salamander will be protected as a threatened species under the State’s Endangered Species Act.  The Commission had previously denied the listing twice, and was ordered by the State Court of Appeals to reconsider the issue after the Center of Biological Diversity filed suit in 2004.  The Commission made the decision after finding that the species’ habitat, roughly 400,000 acres in Central California, is threatened by future development.

This decision is anticipated to affect landowners in the Central Valley including farmers and developers who will face additional restrictions on activities in areas that are occupied by or provide suitable habitat for the species. While opponents to the listing decision argue that the population counts for the species are inaccurate and projected development on rural land is exaggerated, Commission members respond that their decision is supported by the scientific community.

Three distinct population segments of the California tiger salamander were listed under the federal Endangered Species Act in 2000 (PDF), 2002 (PDF), and 2004 (PDF) by the Fish and Wildlife Service.  Its breeding and estivation habitat includes vernal pools, ponds, and upland areas in grassland and oak savannah plant communities.

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