Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing state law makes unlawful the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the act, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act. Existing state law makes it a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information on any application or other document offered or otherwise presented to the Department of Fish and Wildlife for any purpose, including, but not limited to, obtaining a license, tag, permit, or other privilege or entitlement pursuant to the Fish and Game Code or regulations adopted pursuant to the code.

This bill would permit an entity to take a migratory nongame bird, as defined, if the take is incidental to otherwise lawful activity and the entity provides certification to the department of the entitys implementation of deem an entity in compliance with the state prohibition against taking any migratory nongame bird, as defined, if the potential take is incidental to otherwise lawful activity, the entity completes a certification process by submitting certain information to the department, and the entity implements best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds, as identified by the entity pursuant to specified guidelines, so that there is no that are intended to avoid significant adverse impact, impacts, as defined, to migratory nongame birds from the activity. birds. The bill would require, as a condition of this incidental take authority, part of the certification process, the submission of an annual status reports report to the department after the initial certification. The bill would specify the information to include in a certification and annual status reports.

The bill would also specify 2 exempt the take of migratory birds from the state prohibition against taking any migratory nongame bird in other circumstances in which an entity may take a migratory nongame bird. First, the bill would permit circumstances, including, among others, if the take that is accidental, as defined, and results from an act that occurs on a farm or ranch in the course of otherwise lawful routine and ongoing agricultural activities. Second, the bill would permit take if the department has determined that the take will not have a significant adverse impact on migratory nongame birds.

The bill would require the department, no later than December 31, 2019, to establish guidelines for compliance with these provisions.

Because submission of false, inaccurate, or otherwise misleading information in a certification or annual status report to the department pursuant to these provisions would be a crime, this bill would impose a state-mandated local program.

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.

Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing state law makes unlawful the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the act, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act. Existing state law makes it a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information on any application or other document offered or otherwise presented to the Department of Fish and Wildlife for any purpose, including, but not limited to, obtaining a license, tag, permit, or other privilege or entitlement pursuant to the Fish and Game Code or regulations adopted pursuant to the code.

This bill would permit an entity to take a migratory nongame bird, as defined, if the take is incidental to otherwise lawful activity and the entity complies with provides certification to the department of the entitys implementation of best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds, as specified. As a condition of engaging in that activity, the bill would require an entity to certify to the department that the entity will comply with best management practices. The identified by the entity pursuant to specified guidelines, so that there is no significant adverse impact, as defined, to migratory nongame birds from the activity. The bill would require, as a condition of this incidental take authority, the submission of annual status reports to the department after certification. The bill would specify the information to include in a certification and annual status reports.

The bill would require the department, not no later than December 31, 2019, to identify existing best management practices, as provided, and establish certification guidelines for purposes of compliance with these provisions, and would provide for an entity to follow alternative practices and guidelines until their identification and establishment by the department. The bill would require the department to engage in outreach to encourage industries to engage in best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds. The bill would also require the department to work with industry participants and other stakeholders, when practicable, to incentivize research on, and development of, best management practices, including technologies that may improve those practices. provisions.

Because submission of false, inaccurate, or otherwise misleading information in a certification or annual status report to the department pursuant to these provisions would be a crime, this bill would impose a state-mandated local program.

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.

Existing federal law, the Migratory Bird Treaty Act, provides for the protection of migratory birds, as specified. The act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing state law makes unlawful the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the act, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act. Existing state law makes it a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information on any application or other document offered or otherwise presented to the Department of Fish and Wildlife for any purpose, including, but not limited to, obtaining a license, tag, permit, or other privilege or entitlement pursuant to the Fish and Game Code or regulations adopted pursuant to provisions of the code.

This bill would permit an entity to take a migratory nongame bird, as defined, if the take is incidental to otherwise lawful activity and the entity complies with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds, as specified. As a condition of engaging in that activity, the bill would require an entity to certify to the department that the entity will comply with best management practices. The bill would require the department, not later than December 31, 2019, to identify existing best management practices practices, as provided, and establish certification guidelines for purposes of these provisions, and would provide for an entity to follow alternative practices and guidelines until their identification and establishment by the department. The bill would require the department to engage in outreach to encourage industries to engage in best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds. The bill would also require the department to work with industry participants and other stakeholders, when practicable, to incentivize research on, and development of, best management practices, including technologies that may improve those practices.

Because submission of false, inaccurate, or otherwise misleading information in a certification to the department pursuant to these provisions would be a crime, this bill would impose a state-mandated local program.

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.

Existing federal law, the Migratory Bird Treaty Act Act, provides for the protection of migratory birds, as specified. The act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing state law makes unlawful the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the act, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act. Existing law makes it a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information on any application or other document offered or otherwise presented to the Department of Fish and Wildlife for any purpose, including, but not limited to, obtaining a license, tag, permit, or other privilege or entitlement pursuant to the Fish and Game Code or regulations adopted pursuant to provisions of the code.

Existing federal law, the Migratory Bird Treaty Act provides for the protection of migratory birds, as specified. The act also authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs. Existing state law makes unlawful the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the act, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act.

This bill would clarify that the exception to the above-described prohibition only applies if a rule or regulation made by the United States Secretary of the Interior is consistent with any provision of the Fish and Game Code, or any rule, regulation, or order made or adopted pursuant to the code, that gives further protection to migratory nongame birds, their nests, or eggs.

SENATE COMMITTEE ON APPROPRIATIONS

Senator Anthony Portantino, Chair

2017 - 2018 Regular Session

AB 2627 (Kalra) - Migratory nongame birds: Migratory Bird Treaty Act: authorized take

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

This bill would permit an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity self-certifies their compliance with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds.

Fiscal Impact:

• Approximately $200,000 ongoing (General Fund) for the Department of Fish and Wildlife (DFW) to process certifications and annual reports and upload them to the website, as well as to track and send written notifications to non-compliant entities.

Background:

The federal Migratory Bird Treaty Act (MTBA) makes it unlawful to pursue, hunt, take, capture, kill, or sell birds listed therein as migratory birds without a permit. The statute does not discriminate between live or dead birds and also grants full protection to any bird parts including feathers, eggs, and nests. Historically, the MBTA had been interpreted to include prohibition of the “incidental take” of birds. “Incidental take” is generally defined as harassment, harm, or killing of an animal that is unintentional and is the result of an otherwise lawful activity or project. The inclusion of the prohibition of incidental take under the MTBA was ratified in a legal memorandum on January 10, 2017 in the last days of the Obama administration. However, before it was formalized, incidental take authority had been read into the law by prior administrations.

On December 22, 2017, the Trump Administration published a new solicitor’s opinion (M-37050) that formally withdrew and replaced the former Obama Administration opinion. The new opinion concludes that the MBTA’s prohibitions on take apply only to intentional taking or killing of migratory birds, their nests, or their eggs.

Existing California law codifies the MBTA and DFW has historically relied on the federal government for enforcement of the law. The Fish and Game Code Section 3513 states, “It is unlawful to take or possess any migratory nongame bird as designated in the Migratory Bird Treaty Act or any part of such migratory nongame bird except as provided by rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Treaty Act.”

Proposed Law:

This bill would permit an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity self-certifies their compliance with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds. The bill would require, as a condition of this incidental take authority and part of the certification process, the submission of an annual status reports report to the department after the initial certification.

Staff Comments:

This bill is intended to backfill certain protections for migratory birds that have been historically recognized under the federal MTBA. Recently, however, some protections, including those for the incidental take of migratory birds, were eliminated by a new solicitor’s opinion under the Trump Administration, which narrowed the MTBA to apply only to entities with a specific intent to kill migratory birds.

Staff notes that federal law has been incorporated into state law by reference, and therefore this decision impacts current California law, as written. Moreover, enforcement of the federal law across the U.S. has traditionally been done by federal agencies. The recently issued opinion affects federal enforcement. Therefore, should California choose to continue protecting migratory birds from incidental take, the state would need to codify it in statute and potentially provide enforcement.

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SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Robert Hertzberg, Chair

2017 - 2018 Regular

Bill No: AB 2627 Hearing Date: June 26, 2018

Subject: Migratory nongame birds: Migratory Bird Treaty Act: incidental take

BACKGROUND AND EXISTING LAW

1. Under the federal Migratory Bird Treaty Act (MBTA), provides for protection of migratory birds, as specified. The MBTA authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs.
2. Prohibits the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the MBTA, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act.
3. Defines nongame birds as all birds occurring naturally in California that are not resident game birds, migratory game birds, or fully protected birds.
4. States that it is unlawful to take any nongame bird except as provided in the Fish and Game code or in accordance with regulations of the Fish and Game Commission or, when relating to mining operations, a mitigation plan approved by the Department of Fish and Wildlife (DFW).
5. Allows the Fish and Game Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.
6. Makes it a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information to the DFW for any purpose.
7. Codifies the MBTA in state law at Fish and Game Code Section 3513. This section of code simply states, in its entirety: “It is unlawful to take or possess any migratory nongame bird as designated in the Migratory Bird Treaty Act or any part of such migratory nongame bird except as provided by rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Treaty Act.”
8. Defines in FGC Section 3800 nongame birds as all birds occurring naturally in California that are not resident game birds, migratory game birds, or fully protected birds. This section also states that it is unlawful to take any nongame bird except as provided in the Fish and Game Code or in accordance with regulations of the Fish and Game Commission or, when relating to mining operations, a mitigation plan approved by the DFW.
9. Allows, pursuant to FGC Section 355, the Fish and Game Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.
10. Makes it unlawful, under Fish and Game Code Section 3503, to take, possess or needlessly destroy the nest or eggs of any bird, except as otherwise provided in this code or regulations.
11. Makes it unlawful, under Section 3503.5, makes to take, possess, or destroy any birds of prey or their nests or eggs.
12. Prohibits, pursuant to Section 3511, the taking or possession of any fully protected birds, as specified.

PROPOSED LAW

This bill permits an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity certifies their compliance with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds. Specifically, this bill:

1. Removes the codification of the federal Migratory Bird Treaty Act (MBTA) from the Fish and Game Code (FGC).
2. Defines best management practices, migratory nongame bird, and significant impact on a migratory nongame bird species for the purposes of this bill.
3. Prohibits the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, except as provided.
4. Permits an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity complies with available best management practices.
5. Requires the DFW to identify existing best management practices, as prescribed, for activities that may result in a significant impact on a migratory nongame bird species and to establish certification guidelines, as prescribed, for compliance with the identified best management practices no later than December 31, 2019, through a public consensus-based stakeholder process.
6. Identifies best management practices and a self-certification process that are temporarily applicable until the DFW formally identifies best management practices for an activity and issues certification guidelines.
7. Allows DFW to exempt an entity from compliance with best management practices and certification guidelines if DFW determines that take resulting from an activity is not intended and will not have a significant impact on a migratory nongame bird species.
8. Deems an entity that has implemented best management practices and filed a self-certification report with DFW as in compliance, unless the DFW notifies the entity of the alleged noncompliance in writing within 90 days of the submission of the self-certification report. Requires DFW to identify the reasons for the alleged noncompliance and to provide the entity with time, as prescribed, to come into compliance.
9. Requires the DFW to encourage industries that lack best management practices to consult with the DFW on best management practices and develop best management practices.
10. Requires the DFW to make a certification or annual status report available on its Internet Web site within 30 days of receipt.
11. Specifies that nothing in this law supersedes or otherwise limits any requirements or prohibitions of the California Endangered Species Act (CESA) or the FGC section on fully protected birds.
12. Specifies that this law does not apply to the take of a migratory nongame bird if the take is authorized pursuant to another provision of the FGC, or any rule, regulation, or order made or adopted pursuant to the FGC.
13. Specifies that this law does not apply to the take of a migratory nongame bird if the take is authorized by a permit issued pursuant to federal law.
14. Imposes a state mandated local program but excludes a local agency or school district from receiving reimbursement for any costs incurred as a result.

ARGUMENTS IN SUPPORT

According to the author, this year is the 100th anniversary of the signing of the Migratory Bird Treaty Act, a federal law which implements agreements between the United States, Canada, Mexico, Japan and Russia, to protect migratory birds. In honor of that anniversary, and because migratory birds continue to face many new and serious threats, the National Geographic Society, National Audubon, and others have joined together to celebrate 2018 as the year of the bird. However, the Migratory Bird Treaty Act, which the National Geographic calls the most powerful and important bird-protection law ever passed, is under attack at the federal level through a new interpretation that significantly narrows the scope of the act. This bill reinforces California law to ensure that migratory birds continue to be protected in California, but also provides needed guidance to industry on how to reasonably comply with the law.

Protecting migratory birds is important for many reasons. Birds are critical to ecological health and the biodiversity of the planet. Beyond the joy and beauty they provide, as our last best connection to a natural world that is otherwise receding, birds play a vital role in the environment, pollinating plants, dispersing seeds, controlling insects, and removing carrion. Thousands of migratory birds are killed each year as a result of human activities such as those involved in power generation. However, many of those deaths are avoidable and unnecessary with implementation of best available practices and technologies. This bill seeks to provide guidance to both protect birds and allow needed projects to go forward.

ARGUMENTS IN OPPOSITION

Several renewable energy firms and trade associations are concerned that if DFW develops or approves BMPs, then that could provide a basis for additional regulations that were not contemplated. They are also concerned that DFW is under-staffed and without adequate funding to develop and certify best management practices.

Other opponents point out that the new legal guidance from the Trump administration does not yet have the effect of law and that the legality of that new guidance is being litigated, so the argument is that this bill is therefore premature.

Solar firms in particular want more consideration of the mitigation they performed pursuant to CEQA to get their projects permitted and that the bill retains liability for de minimis impacts.

COMMENTS

1. The MBTA is a United States federal law, first enacted in 1916 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to Federal regulations. As of the most recent update of the list on December 2, 2013, 1,027 species of birds are protected by the MBTA.
2. Some exceptions to the act, including the eagle feather law, are enacted in federal regulations. The U.S. Fish and Wildlife Service (USFWS) issues permits for otherwise prohibited activities under the act. These include permits for taxidermy, falconry, propagation, scientific and educational use, and depredation, an example of the latter being the killing of geese or other birds near an airport when they pose a danger to aircraft.
3. Both the MBTA and California law prohibit the take of non-game migratory birds. The two jurisdictions have different definitions of “take.” Take is defined in state law as hunting, pursuing, catching, capturing, or killing, or attempt to hunt, pursue, catch, capture, or kill. This is different than the definition under the federal endangered species act, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or to attempt to engage in any such conduct. California does not have a state equivalent for harassing or harming. In the context of endangered species, both federal and state law provide for incidental take permits that authorize the take of listed species under certain conditions.
4. Since at least the 1970’s, on a non-partisan basis, the MBTA had been interpreted to prohibit the unregulated killing of birds including the incidental take of birds. This conclusion was ratified in a legal memorandum on January 10, 2017 in the last days of the Obama administration.(Opinion M-37041) However, that memorandum also identified the steps that had been underway since 2015 to authorize through best management practices the incidental take of birds in ways that would nevertheless be consistent with the MBTA. Even before that, incidental take authority had been read into the law by prior administrations.
5. On December 22, 2017, the Trump Administration published a new solicitor’s opinion (M-37050) that reaches the opposite conclusion. The opinion states that it “permanently withdraws and replaces Opinion M-37041.” The new opinion concludes that the MBTA’s prohibitions on take apply only to affirmative actions that have as their purpose the taking or killing of migratory birds, their nests or eggs.
6. Three weeks after the Trump Administration opinion was released, seventeen former top officials at the Department of the Interior who served administrations from 1971-17 blasted the Trump administration opinion as “contrary to the long-standing interpretation by every administration since at least the 1970’s. It called the Trump administration opinion a “new, contrived legal standard that creates a huge loophole in the MBTA, allowing companies to engage in activities that routinely kill migratory birds so long as they were not intended that their operations would “render an animal subject to human control.” It pointed out that several court decisions rejected the interpretation now adopted by the Trump administration. The new interpretation specifically says that the law does not allow incidental take. If turned into a regulation, this would render federal agencies powerless to mitigate the impact of major industrial activities on migratory birds.
7. The letter also stated that significant progress had been made by the agency to define the limits of the MBTA through refined interpretations, court decisions, and common sense so that the enforcement of this law fairly balances the goal of economic progress with the impact of that progress on bird populations. It should be added that best management practices have been a significant part of this effort at the federal level as well.
8. It is against this backdrop that AB 2627 was introduced in order to provide a mechanism for incidental take of migratory non-game birds under California law in light of the fact that the current federal administration is clearly demonstrating an intent to impose a requirement of specific intent to kill birds before a violation of federal law is demonstrated and to interpret the MBTA not to prohibit the incidental take of migratory birds.
9. It is important to realize that the federal law has been incorporated by reference into state law. Moreover, enforcement of the federal law across the U.S. has traditionally been done by federal agencies. So the Trump administration opinion not only signals a fundamental re-interpretation of the law, but it adversely affects enforcement that could well have implications in California. Although the Trump approach has not yet been codified or turned into a regulation, many observers sense that is only a matter of time. Under such an approach, there would be no credible deterrent in federal law against the killing of migratory birds.
10. Even in the absence of a new federal regulation codifying this legal opinion, federal agencies have indicated they consider the opinion to be a mandatory directive and have advised companies that they no longer have any exposure to liability under the MBTA.
11. Earlier this year, National Audubon Society, Defenders of Wildlife, the American Bird Conservancy, and the Center for Biological Diversity challenged the new Trump legal opinion. That case is pending in the U.S. District Court for the Southern District of New York.

Recommended Amendments.

1. In discussions with the sponsors, along with some technical assistance from DFW the following points became apparent:
   1. Despite the appeal to some of a robust regulatory permitting mechanism for the incidental take of migratory-non game birds, the fiscal implications of such an approach are well beyond available resources at DFW. Even having DFW engage in approving “best management practices” (BMP) could cost a couple million dollars a year. A permitting program would be even more expensive.
   2. The use of BMPs for the MBTA is not a new concept. As noted earlier, it has been an emerging compliance mechanism at the pre-Trump federal level for a number of years. Also, many of the regulated industries in California are familiar with the development of BMPs although BMPs have not yet been developed for all industries. BMPs have been developed to reduce take from communication towers, power lines, wind turbines, and long line fisheries, as well as the development of measures to prevent bird losses at solar power plants. These efforts were intended to protect migratory birds and at the same time provide reasonable assurances to industries that sought to minimize or avoid their impacts to migratory birds that they would likely not be subject to prosecution.
   3. Those interested in wardens enforcing the California prohibition on the take of non-migratory birds are probably aware that this has not been an enforcement priority of CDFW. CDFW works to achieve compliance first through voluntary efforts which is the same approach undertaken by the amendments proposed below.
   4. The bill allows for additional regulations when necessary to protect migratory birds. It remains to be seen if safeguards such as these are adequate to have industries develop robust BMPs. If not, the Legislature would retain the ability to reconsider and perhaps strengthen the provisions of this bill.
   5. DFW’s does retain oversight of the process in several respects: It has to determine, based on the best available scientific evidence, that the activity will not have a significant adverse impact on migratory nongame birds. It also retains the obligation to notify applicants of any noncompliance with BMPs.
   6. The draft retains the prohibition on the take of migratory birds except when BMPs and the annual reporting provisions are followed. It also adopts the current list of migratory bird species maintained by the federal government, which amounts to approximately 600 species in California.
   7. Annual reports are required that contain specified information including the BMPs that were followed, and those that were not implemented, along with a description of BMPs that will be used in the future. These reports are mandatory in order to maintain incidental take coverage.
   8. The amendments require DFW to issue guidance, and require that the guidance consider the practical limitations of BMPs at existing facilities or those that have already received federal permits. This provision should help with some of the concerns of the opposition.
   9. The bill contains an exemption for accidental take of species occurring from otherwise lawful routine and ongoing agricultural activities similar to a provision in the state endangered species act.
   10. The bill encourages the retroactive application of the BMP provision to regulated industries, although it is not a requirement. For such industries interested in obtaining take coverage, the bill’s provisions are available to them. If they choose not to participate, they remain potentially liable for any take.
   11. The amendments below do not affect the state endangered species act or the fully protected bird statute. The amendments also do not affect any federal permits provided DFW does not find them inconsistent with this proposal.
   12. The amendments below are significant in reducing the complexity and verbiage within the bill, and in placing the burden of developing BMPs on affected industries, although the Committee should be aware that discussions will be ongoing.
   13. There are unresolved issues, including whether and how to handle existing section 3503 which prohibits the take, possession, or destruction of the nest or eggs of any bird. That statute does allow for regulations to authorize take. It may also be important to give DFW authority to impose a monitoring requirement at least on a selective basis. Another recommended amendment is to add CEQA to the savings clause. There should also be a provision that BMPs may be updated from time to time to reflect new scientific information.

SUGGESTED AMENDMENTS

AMENDMENT 1

SECTION 1.

 Section 3513 of the Fish and Game Code is amended to read:

3513.

(a) For purposes of this section, the following terms have the following meanings:

(1) “Accidental” means unintended or unforeseen.

(2) “Best management practices” means best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds so that there is no significant adverse impact to migratory nongame birds from the activity or activities for which the practices are designed to address.

(3) “Migratory nongame bird” means a migratory nongame bird as designated in the federal Migratory Bird Treaty Act (16 U.S.C. Sec. 703 et seq.) as of January 1, 2017.

(4) “Significant adverse impact on a migratory nongame bird species” means an impact that has the potential to either individually or cumulatively significantly reduce the number or the range of a migratory nongame bird.

(b)  It is unlawful to take or possess any migratory nongame bird as designated in the Migratory Bird Treaty Act  or any part of such a  migratory nongame bird bird,  except as provided by rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Treaty Act. in subdivisions (c) or (k). 

(c) An entity may take a migratory nongame bird in the following circumstances:

(1) The take is accidental, and results from an act that occurs on a ranch or farm in the course of otherwise lawful routine and ongoing agricultural activities. Accidental take pursuant to this paragraph shall not be subject to the requirements in paragraph (2), and this paragraph shall not be construed to require any entity to comply with best management practices or provide certification pursuant to this section in order for the take to be exempt from the prohibition in subdivision (b).

(2) The take is incidental to otherwise lawful activity, and, unless paragraph (1) applies, and the entity certifies to the department pursuant to subdivisions (d) and (e) that the entity has implemented best management practices to avoid significant adverse impacts to the migratory nongame bird that the entity is taking.

(3) The department has determined based on the best available scientific information that the activity will not have a significant adverse impact on migratory nongame birds.

d) Prior to commencement of activities that are initiated after December 31, 2019 that may result in significant adverse impacts to a migratory nongame bird species, the entity seeking to comply with subdivision (c)(2) shall submit a report to the department that certifies, at a minimum, the following information:

(1) The name of the entity, including the name and contact information of the person responsible for submitting the report.

(2) A description of the activity, including the location, type, date of commencement, and expected duration of the activity.

(3) Identification of best management practices to be implemented by the entity during the period for which take authorization is being sought.

(4) A description of the expected scope and magnitude of impacts, if any, to migratory birds.

(e) For activities initiated on or before December 31, 2019, or annually for after activities initiated after December 31, 2019, the entity seeking to comply with subdivision (c)(2) shall submit an annual report to the department that certifies, at a minimum, the following information:

(1) The name of the entity, including the name and contact information of the person responsible for submitting the report.

(2) A description of the activity, including the location, type, date of commencement, and expected duration of the activity.

(3) Identification of best management practices that were implemented by the entity during the prior year.

(4) Identification of best management practices that were not implemented as expected during the prior year and a description of methods to ensure proper implementation of best management practices, if necessary, in the future.

(5) A description of the scope and magnitude of impacts, if any, to migratory birds from the activities during the past year.

(f) In complying with subdivision (c)(2), the entity may rely on existing permits or other local, state, or federal approvals provided

(1) the permits or approvals relied upon included an assessment of adverse impacts to migratory nongame birds and the implementation, if necessary, of best management practices; and

(2) the department does not determine that the permits or approvals are inconsistent with this chapter.

(g) An entity that has implemented best management practices and filed its report pursuant to subdivisions (d) or (e) with the department shall be deemed in compliance with this section unless the department has notified the entity of the alleged noncompliance in writing within 90 days from the submission of the report. The department’s notification shall identify the reasons for the alleged noncompliance and shall provide the entity with a reasonable period of time to come into compliance.

(1) In any review of best management practices, the department shall consider practical limitations to implementing certain best management practices at existing facilities or for ongoing operations and for projects that have already received necessary permits and other approvals.

(h) Not later than 30 days after receiving a certification or annual status report pursuant to this section, the department shall make the certification or report publicly available on its Internet Web site in a format that is readily accessible by members of the public.

(i) Not later than December 31, 2019, though a public consensus-based stakeholder process, the department shall establish guidelines for compliance with this section, which shall, at a minimum do all of the following:

(1) Establish procedures for the preparation and filing of compliance reports.

(2) Specify methods for verifying compliance over the time period during which take may occur.

(j) The determination of whether a significant adverse impact to migratory nongame birds may occur shall rely on the best available science at the time of the determination.

(k) The identification and selection of best management practices shall rely on the best available scientific information and other relevant information, including, but not limited to

(1) peer-reviewed scientific studies or reports;

(2) guidance documents accepted by state and federal agencies; and

(3) documentation prepared for approved permits or other agency approvals for the activity for which take authorization is sought.

(l)

(1) This section does not supersede or otherwise limit any requirement or prohibition of the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3) or Section 3511.

(2) This section shall not apply to take of a migratory nongame bird if the take is authorized pursuant to another provision of this code, or any rule, regulation, or order made or adopted pursuant to this code.

(3)  This section shall not apply to the take of a migratory nongame bird if the take is authorized by a permit issued pursuant to federal law, unless the department determines that the permit is inconsistent with this chapter, or an order issued pursuant to the Code of Federal Regulations, Title 50, Section 21.

SEC. 2.

No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SUPPORT

Audubon California

Azul

California League of Conservation Voters

California ReLeaf

California State Parks Foundation

Californians for Pesticide Reform

California Waterfowl

Center for Oceanic Awareness, Research, and Education

Clean Water Action

Environment California

Environmental Action Committee of West Marin

Environmental Defense Fund

External Affairs & Policy

Grassland Water District

Los Angeles Waterkeeper

Latino Outdoors

Mono Lake Committee

Natural Resources Defense Council

Plastic Pollution Coalition

Save the Bay

Seventh Generation Advisors

Sierra Club California

The 5 Gyres Institute

The Trust for Public Land

Wholly H2O

OPPOSITION

American Pistachio Growers

American Wind Energy Association

California Association of Nurseries and Garden Centers

California Cattlemen’s Association

California Chamber of Commerce

California Council for Environmental and Economic Balance

California Farm Bureau Federation

California Forestry Association

California Licensed Foresters Association

California Wind Energy Association

EDF Renewable Energy

First Solar

Forest Landowners of California

Large-Scale Solar Association

Solar Energy Industry Association

Western Plant Health Association

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:

Author:(Kalra)

As Amended Ver:

Majority vote

SUBJECT: Migratory nongame birds: Migratory Bird Treaty Act: incidental take

SUMMARY: Permits an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity certifies their compliance with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds. Specifically, this bill:

1. Removes the codification of the federal Migratory Bird Treaty Act (MBTA) from the Fish and Game Code (FGC).
2. Defines best management practices, migratory nongame bird, and significant impact on a migratory nongame bird species for the purposes of this bill.
3. Prohibits the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, except as provided.
4. Permits an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity complies with available best management practices.
5. Requires the Department of Fish and Wildlife (DFW) to identify existing best management practices, as prescribed, for activities that may result in a significant impact on a migratory nongame bird species and to establish certification guidelines, as prescribed, for compliance with the identified best management practices no later than December 31, 2019, through a public consensus-based stakeholder process.
6. Identifies best management practices and a self-certification process that are temporarily applicable until the DFW formally identifies best management practices for an activity and issues certification guidelines.
7. Allows the DFW to exempt an entity from compliance with best management practices and certification guidelines if the DFW determines that take resulting from an activity is not intended and will not have a significant impact on a migratory nongame bird species.
8. Deems an entity that has implemented best management practices and filed a self-certification report with the DFW as in compliance, unless the DFW notifies the entity of the alleged noncompliance in writing within 90 days of the submission of the self-certification report. Requires the DFW to identify the reasons for the alleged noncompliance and to provide the entity with time, as prescribed, to come into compliance.
9. Requires the DFW to encourage industries that lack best management practices to consult with the DFW on best management practices and develop best management practices.
10. Requires the DFW to make a certification or annual status report available on its Internet Web site within 30 days of receipt.
11. Specifies that nothing in this law supersedes or otherwise limits any requirements or prohibitions of the California Endangered Species Act (CESA) or the FGC section on fully protected birds.
12. Specifies that this law does not apply to the take of a migratory nongame bird if the take is authorized pursuant to another provision of the FGC, or any rule, regulation, or order made or adopted pursuant to the FGC.
13. Specifies that this law does not apply to the take of a migratory nongame bird if the take is authorized by a permit issued pursuant to federal law.
14. Imposes a state mandated local program but excludes a local agency or school district from receiving reimbursement for any costs incurred as a result.

EXISTING LAW:

1. Under the federal MBTA, provides for protection of migratory birds, as specified. The MBTA authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs.
2. Prohibits the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the MBTA, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act.
3. Defines nongame birds as all birds occurring naturally in California that are not resident game birds, migratory game birds, or fully protected birds.
4. States that it is unlawful to take any nongame bird except as provided in the FGC or in accordance with regulations of the Fish and Game Commission or, when relating to mining operations, a mitigation plan approved by the Department of Fish and Wildlife (DFW).
5. Allows the Fish and Game Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.
6. Makes it a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information to the DFW for any purpose.

FISCAL EFFECT: According to the Assembly Appropriations Committee, there are increased one-time costs to the DFW of approximately $350,000 from the General Fund (2 positions) to develop best management practices, plus increased costs to the DFW of between $150,000 and $300,000 General Fund to develop self-certification guidelines through regulation. There are unknown, likely significant, increased law enforcement costs.

COMMENTS:

Background and Purpose: The MBTA is a United States federal law, first enacted in 1916 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations. As of the most recent update of the list on December 2, 2013, 1,027 species of birds are protected by the MBTA. Currently, California law codifies the MBTA and the DFW generally relies on the federal government for enforcement.

A U.S. Department of the Interior Solicitor’s opinion (M-37050) issued on December 22, 2017, concludes incidental take is no longer prohibited under the MBTA. Incidental take refers to both takings and/or killings that directly and foreseeably result from, but are not the purpose of, an activity.

This bill establishes state guidance and permitting processes for incidental take of migratory nongame birds in order to protect birds and provide a pathway for entities to obtain authorization of incidental take of migratory birds if they implement effective best management practices. This bill repeals the statute that codifies the federal MBTA.

Related Legislation:

AB 2388 ( Francis), Chapter 1972, Statutes of 1957, codified the MBTA in state law.

Analysis Prepared by: Keith Cialino / W., P., & W. / (916) 319-2096 FN: 0003310

Date of Hearing: May 16, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2627

Author:(Kalra) – As Amended Ver:April 17, 2018

Urgency: No State Mandated Local Program: Yes Reimbursable: No

SUMMARY:

This bill permits an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity certifies their compliance with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds.

FISCAL EFFECT:

1. Increased one-time Department of Fish and Wildlife (DFW) costs of approximately $350,000 GF (2 PY) to develop best management practices.
2. Increased DFW costs of between $150,000 and $300,000 GF to develop self-certification guidelines through regulation.
3. Unknown, likely significant increased law enforcement costs.

COMMENTS:

Background and Purpose. The federal Migratory Bird Treaty Act (MTBA)was enacted in 1916 for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to federal regulations. Recent U.S. Solicitor’s opinions conclude incidental take is no longer prohibited under the MTBA.

California law codifies the MBTA and DFW relies on the federal government for enforcement. This bill repeals the statute that codifies the MBTA and instead establishes state guidance and permitting process for incidental take to protect birds and provide guidance to industry on how to comply with the law.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 24, 2018

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Eduardo Garcia, Chair

ABPCA Bill Id:AB 2627 (

Author:Kalra) – As Amended Ver:April 17, 2018

SUBJECT: Migratory birds: Migratory Bird Treaty Act

SUMMARY: Permits an entity to take a migratory nongame bird, as defined, if the take is incidental to otherwise lawful activity and the entity certifies their compliance with best management practices, as defined, for avoiding, minimizing, and mitigating take of migratory nongame birds. Specifically, this bill:

1. Defines best management practices and migratory nongame bird for the purposes of this bill.
2. Prohibits the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, except as provided.
3. Permits an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and all of the following criteria are met:
   1. Best management practices for the activity are available.
   2. The entity certifies to the Department of Fish and Wildlife (DFW) in accordance with guidelines, as prescribed, that the entity will comply with the best management practices for that activity.
   3. The entity carries out the activity as certified to the DFW.
4. Requires the DFW to identify best management practices for activities that may result in take of migratory nongame birds and to establish certification guidelines for compliance with those best management practices no later than December 31, 2019.
5. Requires the best management practices identified by the DFW be based on the best available scientific information and other relevant information. Requires the DFW to prioritize practices, and the use of technologies, that have the greatest impact in avoiding and minimizing take of migratory nongame birds and mitigating unavoidable significant impacts on migratory nongame birds.
6. Allows the DFW to utilize similar best management practices developed by other state and federal agencies.
7. Requires the DFW to develop certification guidelines that do all of the following:
   1. Establish deadlines for filing compliance documents.
   2. Prohibit a self-certifying entity from commencing any activity that may result in take of a migratory nongame bird until the entity has notified the DFW of its self-certification and ensured that the activity will be carried out in compliance with this law.
   3. Specify methods of verifying compliance over the time period during which take may occur.
   4. Specify procedures for notifying the DFW of noncompliance and methods for remedying noncompliance within 60 days of that notice.
   5. Requires the entity to submit an annual status report, until completion of the activity, that contains information as prescribed.
8. Allows the DFW to authorize an entity to self-certify their compliance with the certification guidelines, or at the DFW’s discretion, require the DFW’s approval for certification of compliance.
9. Identifies best management practices and self-certification rules that are temporarily applicable until the DFW formally identifies best management practices for an activity and issues certification guidelines.
10. Allows the DFW to exempt an entity from compliance with best management practices and certification guidelines if the DFW determines that take resulting from an activity is not intended and will have a de minimis effect on migratory nongame birds.
11. Requires the DFW to encourage industries that lack best management practices to consult with the DFW on best management practices. When practicable, the DFW can work with industry participants and other stakeholders to incentivize research on, and development of, best management practices, including technologies that may improve these practices.
12. Requires the DFW to make a certification or annual status report available on its Internet Web site within 60 days of receipt.
13. Specifies that nothing in this law supersedes or otherwise limits any requirements or prohibitions of the California Endangered Species Act (CESA) or the Fish and Game Code (FGC) section on fully protected birds.
14. Specifies that this law does not apply to the take of a migratory nongame bird if the take is authorized pursuant to another provision of the FGC, or any rule, regulation, or order made or adopted pursuant to the FGC.
15. Imposes a state mandated local program due to it being a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information to the DFW for any purpose, but excludes a local agency or school district from receiving reimbursement for any costs incurred as a result of this.
16. Removes the codification of the Migratory Bird Treaty Act (MBTA) from the FGC.

EXISTING LAW:

1. Provides for protection of migratory birds, under the federal Migratory Bird Treaty Act (MBTA), as specified. The MBTA authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs.
2. Prohibits the taking or possession of any migratory nongame bird, or part of any migratory nongame bird, as designated in the MBTA, except as provided by rules and regulations adopted by the United States Secretary of the Interior under provisions of the act.
3. Defines nongame birds as all birds occurring naturally in California that are not resident game birds, migratory game birds, or fully protected birds.
4. States that it is unlawful to take any nongame bird except as provided in the FGC or in accordance with regulations of the Fish and Game Commission or, when relating to mining operations, a mitigation plan approved by the Department of Fish and Wildlife (DFW).
5. Allows the Fish and Game Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.
6. Makes it a crime to submit, or conspire to submit, any false, inaccurate, or otherwise misleading information to the DFW for any purpose.

FISCAL EFFECT: Unknown

COMMENTS: This bill permits an entity to take a migratory nongame bird if the take is incidental to otherwise lawful activity and the entity certifies their compliance with best management practices for avoiding, minimizing, and mitigating take of migratory nongame birds.

Author’s Statement:

This year is the 100th anniversary of the signing of the Migratory Bird Treaty Act, a federal law which implements agreements between the United States, Canada, Mexico, Japan and Russia, to protect migratory birds. In honor of that anniversary, and because migratory birds continue to face many new and serious threats, the National Geographic Society, National Audubon, and others have joined together to celebrate 2018 as the year of the bird. However, the Migratory Bird Treaty Act, which the National Geographic calls the most powerful and important bird-protection law ever passed, is under attack at the federal level through a new interpretation that significantly narrows the scope of the act. This bill reinforces California law to ensure that migratory birds continue to be protected in California, but also provides needed guidance to industry on how to reasonably comply with the law.

Protecting migratory birds is important for many reasons. Birds are critical to ecological health and the biodiversity of the planet. Beyond the joy and beauty they provide, as our last best connection to a natural world that is otherwise receding, birds play a vital role in the environment, pollinating plants, dispersing seeds, controlling insects, and removing carrion. Thousands of migratory birds are killed each year as a result of human activities such as those involved in power generation. However, many of those deaths are avoidable and unnecessary with implementation of best available practices and technologies. This bill seeks to provide guidance to both protect birds and allow needed projects to go forward.

Background: Migratory Bird Treaty Act. The MBTA is a United States federal law, first enacted in 1916 to implement the convention for the protection of migratory birds between the United States and Great Britain (acting on behalf of Canada). The statute makes it illegal for anyone to take, possess, import, export, transport, sell, purchase, barter, or offer for sale, purchase, or barter, any migratory bird, or the parts, nests, or eggs of such a bird except under the terms of a valid permit issued pursuant to Federal regulations. As of the most recent update of the list on December 2, 2013, 1,027 species of birds are protected by the MBTA.

Some exceptions to the act, including the eagle feather law, are enacted in federal regulations. The U.S. Fish and Wildlife Service (USFWS) issues permits for otherwise prohibited activities under the act. These include permits for taxidermy, falconry, propagation, scientific and educational use, and depredation, an example of the latter being the killing of geese near an airport when they pose a danger to aircraft.

Current Protections Under California Law. FGC Section 3513 codifies the MBTA in state law. This section of code currently states: It is unlawful to take or possess any migratory nongame bird as designated in the Migratory Bird Treaty Act or any part of such migratory nongame bird except as provided by rules and regulations adopted by the Secretary of the Interior under provisions of the Migratory Treaty Act.

FGC Section 3800 defines nongame birds as all birds occurring naturally in California that are not resident game birds, migratory game birds, or fully protected birds. This section also states that it is unlawful to take any nongame bird except as provided in the FGC or in accordance with regulations of the Fish and Game Commission or, when relating to mining operations, a mitigation plan approved by the DFW.

FGC Section 355 allows the Fish and Game Commission to annually adopt regulations pertaining to migratory birds to conform with or to further restrict the rules and regulations prescribed pursuant to the MBTA.

What is Take? Take is defined in the FGC as hunting, pursuing, catching, capturing, or killing, or attempt to hunt, pursue, catch, capture, or kill. This is different than the definition under the Federal Endangered Species Act, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or to attempt to engage in any such conduct. California does not have a state equivalent for harassing or harming.

Take of Migratory Birds. While take of migratory nongame birds is banned under the MBTA and California law, incidental take still occurs. According to the National Audubon Society, the operation of industrial facilities results in the take of millions of birds nationally each year. Best practices are utilized in order to limit the take of birds, but individuals and organizations may face liability under existing Federal and state laws for impacts to migratory nongame birds.

According to the USFWS, the top human-related threats to birds in the United States are:

• Cats, which kill an estimated 2.4 billion birds per year;
• Collisions with building glass, which kills an estimated 303.5 million birds per year;
• Collisions with vehicles, which kill an estimated 200 million birds per year;
• Poisons, which kill an estimated 72 million birds per year;
• Collisions with electrical lines, which kill an estimated 25 million birds per year;
• Collisions with communications towers, which kill an estimated 6.5 million birds per year;
• Electrocutions, which kill an estimated 5.4 million birds per year;
• Oil pits, which kill an estimated 750 thousand birds per year; and
• Collisions with wind turbines, which kill an estimated 174 thousand birds per year.

Other forms of alternative energy, such as solar farms, also kill migratory birds but reliable numbers are not available.

Solicitor’s Opinions. The U.S. Solicitor’s Office has issued two legal opinions recently involving the interpretation of the MBTA.

On January 10, 2017, opinion M-37041 stated that the prohibition on taking and killing migratory birds under the MBTA applies broadly to any activity, by any means, and in any manner. Therefore, those prohibitions can and do apply to direct incidental take. Liability under the MBTA is bounded by limits of proximate causation, however, and applies to "direct" take where there is a close causal connection between an action and its effect of taking migratory birds. The prohibitions of the MBTA do not apply to indirect take, such as that caused by habitat modification. The opinion found that the USFWS has long recognized that the MBTA’s prohibition on take includes incidental take. Consistent with that view, the USFWS in 2015 initiated a process to develop federal regulations providing legal authorization of incidental take under specific circumstances. That regulatory process was not completed before the change in administration occurred. The opinion also found that the courts of appeal have generally agreed with that interpretation, but acknowledged that there have been a few court decisions that came to the opposite conclusion. This opinion was suspended and withdrawn on February 6, 2017.

On December 22, 2017, opinion M-37050 concluded that based upon the text, history, and purpose of the MBTA, and consistent with decisions in the Courts of Appeals for the Fifth, Eighth, and Ninth circuits, the prohibition on pursuing, hunting, taking, capturing, killing, or attempting to do the same under the MBTA applies only to direct and affirmative purposeful actions that reduce migratory birds, their eggs, or their nests, by killing or capturing. According to the opinion, while the MBTA does contemplate the issuance of permits authorizing the taking of wildlife, it requires such permits to be issued by regulation. No permit scheme is generally available to permit incidental take, so most potential violators have no mechanism to ensure that their actions comply with the law. There are voluntary USFWS guidelines issued for different industries that recommend best practices to avoid incidental take of protected birds. However, the solicitor’s opinion wonders to what degree such guidelines are truly "voluntary" when non-compliance with the guidelines is accompanied by a credible threat of prosecution.

Incidental Take and the MBTA. Due to opinion M-37050, incidental take is no longer prohibited under the MBTA. The federal Endangered Species Act, Bald and Golden Eagle Protection Act, and some state laws and regulations are not affected by the opinion. The USFWS states that birds should be included in relevant environmental review processes under the National Environmental Policy Act. Voluntary impact reductions to migratory birds and their habitats are allowed.

Best Management Practices. This bill requires the DFW to identify best practices that entities would be required to comply with in order to be permitted to take a migratory nongame bird. Examples of best practices currently used by industry to prevent the take of migratory nongame birds include considerations for site location, construction outside of known breeding seasons, burial of power lines, use of high visibility marking devices, and minimizing the amount of lighting at the site. The bill identifies appropriate publications for entities to use when self-certifying their compliance to the DFW prior to the DFW identifying appropriate best practices.

Compliance Guidelines. This bill also requires the DFW to develop certification guidelines. These would identify how entities could certify their compliance with the best management practices identified by the DFW and would also require an annual report. Prior to the issuance of the certification guidelines, entities are able to self-certify compliance by providing prescribed information to the DFW.

Preemption Concerns. The Supremacy Clause is a clause within Article VI of the U.S. Constitution, which dictates that federal law is the "supreme law of the land." Under the doctrine of preemption, which is based on the Supremacy Clause, federal law preempts state law, even when the laws conflict. This bill attempts to formalize the voluntary provisions of the MBTA in California law as they existed on January 1, 2017 in California law. If regulations under the MBTA were to change based on the U.S. Solicitor’s Office opinion M-37050, issued on December 22, 2017, the MBTA currently authorizes states and territories of the United States to make and enforce laws or regulations that give further protection to migratory birds, their nests, and eggs.

Definitions:

• Incidental take: refers to both takings and/or killings that directly and foreseeably result from, but are not the purpose of, an activity.
• Migratory nongame bird: defined as all birds occurring naturally in California that are not resident game birds, migratory game birds, or fully protected birds (FGC Section 3800). This bill defines a migratory nongame bird as a migratory nongame bird designated in the federal MBTA as of January 1, 2017.
• Take: defined as hunting, pursuing, catching, capturing, or killing, or attempt to hunt, pursue, catch, capture, or kill (FGC Section 86). Under the federal Endangered Species Act, take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or to attempt to engage in any such conduct. California does not have a state equivalent to harassing or harming.

Prior and Related Legislation:

Chapter 1972, Statutes of 1957, codified the MBTA in state law.

Arguments in Support: Those in support argue that AB 2627 promotes conservation of migratory birds while providing guidance to industry on compliance with laws protecting migratory birds. AB 2627 ensures that birds protected under the federal MBTA continue to be protected in California and provides a pathway for entities to obtain authorization of incidental take of migratory birds where they implement effective best management practices. Supporters maintain that the bill does not change the status quo for any entity that does not seek take authorization. In other words, AB 2627 creates a pathway for compliance for entities that want it, but entities may also choose to continue to operate as they always have without any additional requirements.

Arguments in Opposition: None on file

REGISTERED SUPPORT / OPPOSITION:

Support

5 Gyres Institute; The

Audubon California

Azul

California Coastal Protection Network

California League of Conservation Voters

California ReLeaf

Californians for Pesticide Reform

Center for Biological Diversity

Center for Oceanic Awareness, Research, and Education; The

Clean Water Action

Defenders of Wildlife

Environment California

Environmental Action Committee of West Marin

Environmental Defense Fund

Latino Outdoors

Los Angeles Waterkeeper

Mono Lake Committee

Natural Resources Defense Council

Plastic Pollution Coalition

Save the Bay

Seventh Generation Advisors

Sierra Club California

State Parks Foundation

Trust For Public Land; The

Wholly H2O

Opposition

None on file

Analysis Prepared by: Keith Cialino / W., P., & W. / (916) 319-2096