LegAlert #97-14

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Deal is Struck on Incidental Take
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Several weeks of difficult negotiations have resulted in the successful
development of a major California Endangered Species Act (CESA)
proposal. SB 879 (Johnston) establishes the criteria by which "incidental
take" permits can be granted.

The Legislative Committee of Sierra Club California approved a "support"
position of an earlier version of SB 879 (see LegAlert #97-9), and the
latest, negotiated version of the bill is in complete accord with the
principles which were important to the Legislative Committee.

Among the important advances in this legislation are:

(1) The Department of Fish and Game will no longer be able to issue
private "memoranda of understanding" involving the incidental take of
protected species. All incidental take arrangements must be done by permit.

(2) The permits themselves are subject to full CEQA review, including the
CEQA standards for public participation, alternatives analyses, and
cumulative impacts assessements. This was a major bargaining point in the
negotiations.

(3) For the first time, CESA will specifically require "full mitigation" of all
impacts on the species caused by the take. This provision includes habitat
loss or modification which results in the take of protected species. (Note:
The bill does not protect all habitat, per se, because the Wilson
Administration pledged a veto if the bill even so much as included the word
"habitat.")

(4) The bill requires all incidental take permits to be consistent with
recovery plans. (There aren't many recovery plans, yet, but the obvious
goal is to move more and more species into recovery plans. This provision
resolves any future conflicts between recovery and applications for
incidental take.)

(5) The Department of Fish and Game will implement regulations--not
guidelines--to implement this law. Regulations are subject to a public
participation process, and guidelines are not.

(6) The bill requires applicants for incidental take to provide adequate
funding to implement the required mitigation, and to fund monitoring and
to assess the effectiveness of the mitigation measures.

(7) No permit can be issued if the permit will result in biological
jeopardy of the species. The jeopardy analysis (adapted from the federal
Endangered Species Act), requires an analysis based on the "best scientific
and other information available."

(8) As part of the negotiations, we agreed with the proposal that
the mitigation measures required of landowners who seek incidental take
authority shall be "roughly proportional" to the impacts caused by the take.
This incorporates existing U.S. Supreme Court language on the maximum
amount of mitigation which can be required in the land use planning
context. We do not view this language as particularly troublesome for
CESA, and, in fact, in some cases, this language will strengthen the
mitigation that is required.

(9) We also agreed to the landowner position that the mitigation
measures which are required should be capable of being carried out
successfully and that, where multiple measures are possible, that the
applicant's objectives should be maintained. Additionally, we also agreed to
"grandfather" in existing memoranda of understanding entered into
between Fish and Game and landowners. As many of you know, the
California Supreme Court now has a case which will decide whether
(before this bill was proposed or adopted) Fish and Game has any
"incidental take" authority at all. The proposed bill specifically allows the
case to continue.

STATUS: SB 879 will be heard in the Assembly Water, Parks and Wildlife
Committee next week, then move to the Assembly floor. After passing
through the Assembly, it will then move back to the Senate for approval
there.

ACTION NEEDED: SB 879, as a negotiated bill among environmental-
ists, industry, and the Wilson Administration, should pass easily through
Legislature and get signed by the Governor. To ensure that this bill passes,
though, please contact your state Senators and Assemblymembers and urge
them to support this negotiated settlement to the incidental take issue.

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Address your letters to: Assembly Member/Senator ______
State Capitol
Sacramento, CA 95814

To find out who your state legislators are, call:
(916) 445-3614 (Assembly)
(916) 445-4251 (Senate)

To find out the email addresses for your state legislators, check the
following Web pages:
http://www.assembly.ca.gov/acs/acsframeset7.htm
http://www.sen.ca.gov/htbin/seninfo/sen.senator

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