LegAlert #97-9

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Sierra Club Negotiates Incidental Take
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In what has become an annual event in Sacramento, the Wilson
Administration and several anti-environmental Republican
legislators introduced legislation this year to gut all or part of the
California Endangered Species Act (CESA). Fortunately, those
efforts have been defeated.

On another front, a series of recent court decisions has invalidated
the governor's chosen method for issuing "incidental take" permits
for projects which affect endangered species. In response, the
Legislature is considering how to amend CESA in order to grant
incidental take authority. If structured properly, incidental take
authority can recognize the needs of the business community while
at the same time preserving the goals and policies of CESA. The
Sierra Club can support the idea when sufficient safeguards are
imposed that maintain the process of CESA and, more important,
ensure the protection of endangered species and their habitat.

Three incidental take bills still alive. We support only SB 879
(Johnston). We oppose AB 1463 (Olberg). And things are still
uncertain about AB 409 (Machado); Machado hasn't yet set a
schedule for negotiating his bill, and until we get final language, we
can't take a position on it. We've told him, however, that the bill is
unacceptable the way it currently is.

** SB 879 (Johnston) ** After a rocky start, SB 879 has been
amended by the author, Sen. Pat Johnston, so that it is now
acceptable. The bill contains many of the safeguards the Sierra Club
insists on in developing incidental take language for CESA. In
particular, it calls for all applicants to go through a public hearing
process and to submit a funded mitigation plan which -- for the
first time in CESA -- must include mitigation for habitat loss. We
are very pleased with this latter provision. In addition, SB 879
requires applicants to minimize, to the maximum extent practicable,
the impacts of the project on the affected species. The bill also
includes provisions for monitoring for compliance and for the
effectiveness of mitigation plans.

But perhaps the most significant amendment now in SB 879 is
Section (b)(5). This provision states in full: "Based on the best
scientific information, and after an analysis of cumulative impacts,
the permit is consistent with the legislative policies and goals of this
chapter with respect to the species covered by the permit."

Several important standards are contained in that sentence: best
science and cumulative impacts are obvious. What isn't so obvious
is the "legislative policies and goals of this chapter" language. This
is a reference to the all-important goals of CESA which are to
"conserve, protect, restore, and enhance" protected species.
Requiring incidental take permits to meet that particular standard is
a very significant amendment.

We have agreed with Senator Johnston's request to try to pass the
bill through Committee and through the Senate in its current form.
His concern is that if the bill is heavily amended so that the
perception is that the bill is "too strong" environmentally, then he
might not be able to support it, and that the bill ultimately will fail
in the Legislature or be vetoed by Governor Wilson. That leaves as
an alternative the Machado bill or the Olberg bill. That is an
unacceptable position for the Sierra Club.

The Sierra Club has determined that we will strongly oppose any
weakening amendments assuming the bill makes it to the Assembly.
We recognize that there will be an attempt to negotiate further the
bill. That is the nature of the legislative process. However, to
maintain our leadership role in those negotiations, and to work to
make certain that the bill is as strong as possible, it is important to
honor the author's request at this point.

AB 1463 (Olberg) has no standards and allows limitless destruction
of protected species and their habitats. It is simply a huge loophole
within CESA. Unless something like SB 879 is passed, AB 1463
will be a possible way for anti-environmentalists to achieve major
rollbacks to CESA.

STATUS: SB 879 is currently in the Senate Natural Resources and
Wildlife Committee. It will come up for a vote on Tuesday, June
17.

ACTION NEEDED: Though SB 879 is a negotiated bill, there
still exists strong opposition to it from the Wilson administration.
Contact the members of the Senate Natural Resources Committee
and urge them to support SB 879, an important agreement on
incidental take authority. The committee members are:
Sen. Tom Hayden 916/445-1353
Sen. Mike Thompson 916/445-3375
Sen. Dede Alpert 916/445-3952
Sen. Maurice Johannessen 916/445-3353
Sen. Patrick Johnston 916/445-2407
Sen. Tim Leslie 916/445-5788
Sen. Dick Monteith 916/445-1392
Sen. Jack O'Connell 916/445-5405
Sen. Byron Sher 916/445-6747

Also call or write your state Senators and urge them to support the
bill when it reaches the Senate floor.

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