Existing law, the California Endangered Species Act, prohibits the taking of an endangered or candidate species, except as provided. Under the act, the Department of Fish and Wildlife may authorize the take of listed species pursuant to an incidental take permit if the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, and the issuance of the permit would not jeopardize the continued existence of the species. The act requires the department to adopt regulations for the issuance of incidental take permits. Existing law also generally provides that a violation of the Fish and Game Code is a crime.

The act also provides, until January 1, 2024, that the accidental take of a candidate, threatened, or endangered species resulting from an act that occurs on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is not prohibited by the act, as provided, and would require a person, when an accidental take is known to occur under these provisions, to report the take to the department within 10 days.

This bill would require the department to conduct outreach to raise awareness of the above-mentioned reporting requirement within the agricultural community, as specified, and would extend the above-mentioned exception to the act and the related reporting requirement until January 1, 2029. By extending the duration of this reporting requirement, the violation of which would be a crime, the 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 law, the California Endangered Species Act, prohibits the taking of an endangered or candidate species, except as provided. Under the act, the Department of Fish and Wildlife may authorize the take of listed species pursuant to an incidental take permit if the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, and the issuance of the permit would not jeopardize the continued existence of the species. The act requires the department to adopt regulations for the issuance of incidental take permits. Existing law also generally provides that a violation of the Fish and Game Code is a crime.

The act also provides, until January 1, 2024, that the accidental take of a candidate, threatened, or endangered species resulting from an act that occurs on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is not prohibited by the act, as provided, and would require a person, when an accidental take is known to occur under these provisions, to report the take to the department within 10 days.

This bill would require the department to conduct outreach to raise awareness of the above-mentioned reporting requirement within the agricultural community, as specified, and would extend the above-mentioned exception to the act and the related reporting requirement until January 1, 2029. By extending the duration of this reporting requirement, the violation of which would be a crime, the 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 law, the California Endangered Species Act, prohibits the taking of an endangered or candidate species, except as provided. Under the act, the Department of Fish and Wildlife may authorize the take of listed species pursuant to an incidental take permit if the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, and the issuance of the permit would not jeopardize the continued existence of the species. The act requires the department to adopt regulations for the issuance of incidental take permits. Existing law also generally provides that a violation of the Fish and Game Code is a crime.

The act also provides, until January 1, 2024, that the accidental take of a candidate, threatened, or endangered species resulting from an act that occurs on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is not prohibited by the act, as provided, and would require a person, when an accidental take is known to occur under these provisions, to report the take to the department within 10 days.

This bill would require the department to conduct outreach to raise awareness of the above-mentioned reporting requirement within the agricultural community, as specified, and would extend indefinitely the above-mentioned exception to the act and the related reporting requirements. requirement until January 1, 2029. By extending the duration of this reporting requirement, the violation of which would be a crime, the 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 law, the California Endangered Species Act, prohibits the taking of an endangered or candidate species, except as provided. Under the act, the Department of Fish and Wildlife may authorize the take of listed species pursuant to an incidental take permit if the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, and the issuance of the permit would not jeopardize the continued existence of the species. The act requires the department to adopt regulations for the issuance of incidental take permits. Existing law also generally provides that a violation of the Fish and Game Code is a crime.

The act also provides, until January 1, 2024, that the accidental take of a candidate, threatened, or endangered species resulting from an act that occurs on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is not prohibited by the act, as provided, and would require a person, when an accidental take is known to occur under these provisions, to report the take to the department within 10 days.

This bill would extend indefinitely the above-mentioned exception to the act and the related reporting requirements. By extending the duration of this reporting requirement, the violation of which would be a crime, the 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.

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 606

Author:(Mathis)

As Amended Ver:June 26, 2023

Majority vote

SUMMARY

Extends the sunset to authorize accidental take of listed species in the course of otherwise lawful and routine agricultural activities until January 1, 2029, and requires the Department of Fish and Wildlife (DFW) to conduct outreach to raise awareness within the agricultural community about required reporting of an accidental take, as specified.

Senate Amendments

1. Extend, rather than remove, the sunset.
2. Require DFW to conduct outreach to the extent feasible using existing channels to raise awareness within the agricultural community of the existing reporting requirement.

COMMENTS

The California Endangered Species Act (CESA) and the federal Endangered Species Act (ESA) generally provide a scientific basis for determining the status of species that potentially face extinction. Although there are differences between the federal and state acts, the overarching intent of both is to regulate and impose mitigation activities on activities that could contribute to the extinction of species. Under CESA, species whose survival are imperiled may be categorized as "endangered," "threatened," or "candidate" and once categorized, the take of those species is prohibited unless authorized by a permit issued by the appropriate regulatory agency. Under CESA, permitting resides with DFW.

One exception to the take prohibition in CESA is the "accidental take" provision. This provision was first enacted in 1997 with a sunset clause. It exempts the accidental take of protected species that occurs on a farm or ranch in the course of routine and ongoing agricultural activities. Since enactment, the Legislature has extended the provision five additional times with minor changes. The accidental take provision sunsets on January 1, 2024.

Routine and ongoing agricultural activities are defined in regulation, and include the cultivation and tillage of soil; crop rotation; fallowing; dairying; the production, cultivation, growing, replanting, and harvesting of any agricultural commodity including viticulture, vermiculture, apiculture, or horticulture; the raising of livestock, fur bearing animals, fish, or poultry; any practices performed by a farmer on a farm as incident to or in conjunction with those farming operations, including the preparation for market, delivery to storage or to market, or delivery to carriers for transportation to market, including any such activities recognized as compatible uses pursuant to the Williamson Act (Government Code Section 51200 et seq.) provided such activities are consistent with the economics of agricultural operations; and other similar agricultural activities as determined by DFW during its review and approval of a particular voluntary local program. Ordinary pasture maintenance and renovation and dry land farming operations consistent with rangeland management are also considered routine and ongoing agricultural activities.

Routine and ongoing agricultural activities do not include conversion of agricultural land to nonagricultural use, timber harvesting activities governed by the State Board of Forestry, or activities that intentionally reduce habitat and wildlife to facilitate conversion to non-agricultural use. The conversion of rangeland to more intensive agricultural uses such as permanent crops is not considered a routine and ongoing agricultural activity.

Reporting requirement. The most recent sunset extension (SB 62 (Dodd), Chapter 137, Statutes of 2019) requires the reporting of known instances of accidental take to the DFW within ten days. As of March 2023, DFW has not received any reports of accidental take since the reporting requirement became law. Absent any information, it is difficult to know what impacts routine and ongoing agricultural activities may have on listed species. It is also difficult to quantitatively assess the benefits to endangered species of extending the accidental take provisions. This bill requires DFW to raise awareness within the agricultural community of the existing reporting requirement.

According to the Author

"This measure protects both farmers and endangered species. [This bill] will ensure that there's a feasible way for farmers and ranchers to conduct their operations while allowing endangered and threatened species access to as much habitat as possible."

Arguments in Support

Supporters maintain that the accidental take law gives a farmer conducting normal and routine agricultural activities the ability to host a listed species on their property. Without the protection of the accidental take law, farmers might avoid activities that benefit wildlife, such as the planting of a certain crop, or the temporary flooding of a field, which in turn, would result in a loss of habitat for the species. Numerous agricultural groups write in support, stating that "[a]ccidental take is an important provision of CESA as it reduces liability for growers who either have no reason to believe a protected species is present on their land, or have taken action to prevent take of the species and still accidentally take a listed species."

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Senate Appropriations Committee, there are unknown, potentially significant ongoing costs (Fish and Game Preservation Fund) for DFW to compile accidental take reports, conduct outreach, and raise awareness.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 15-0-0

YES: Bauer-Kahan, Mathis, Alanis, Bennett, Megan Dahle, Davies, Friedman, Hart, Wood, Pellerin, Blanca Rubio, Schiavo, Villapudua, Ward, Weber

ASM APPROPRIATIONS: 14-0-2

YES: Holden, Megan Dahle, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Robert Rivas, Sanchez, Weber, Wilson

ABS, ABST OR NV: Bryan, Pellerin

ASSEMBLY FLOOR: 79-0-1

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones‑Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

ABS, ABST OR NV: Jim Patterson

UPDATED

VERSION: June 26, 2023

CONSULTANT: Keith Cialino / W., P., & W. / (916) 319-2096 FN: 0002268

 THIRD READING  

Bill No: AB 606

Author: Mathis (R), et al.

Amended: 6/26/23 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 11-0, 6/22/23

AYES: Min, Seyarto, Allen, Dahle, Grove, Hurtado, Laird, Limón, McGuire, Padilla, Stern

SENATE APPROPRIATIONS COMMITTEE: 7-0, 9/1/23

AYES: Portantino, Jones, Ashby, Bradford, Seyarto, Wahab, Wiener

ASSEMBLY FLOOR: 79-0, 4/27/23 (Consent) - See last page for vote

SUBJECT: California Endangered Species Act: accidental take: farms or ranches

SOURCE: California Farm Bureau Federation

DIGEST:

This bill extends the existing sunset to authorize accidental take at a ranch or farm of species protected pursuant to the California Endangered Species Act until January 1, 2029, as provided.

ANALYSIS:

Existing law:

1. Establishes the Department of Fish and Wildlife (department) and the Fish and Game Commission (commission) in the California Natural Resources Agency.
   1. The department’s charge is to manage the state’s diverse fish, wildlife, and plant resources, among other things.
   2. In general, the commission sets regulations that the department implements and enforces.
2. Prohibits the take of species listed as endangered or threatened under the California Endangered Species Act (CESA) (Fish and Game Code (FGC) §§2050 et seq.), as specified.
   1. A person is prohibited from importing, exporting, or taking, possessing purchasing, or selling within the state any species, or any part of product thereof that the commission determines to be an endangered or threatened species, with specified exceptions.
   2. Under CESA, the commission is authorized to designate species, including plants, as threatened or endangered. Species that have been advanced to candidacy by the commission have the same protections as listed species until resolution of their candidacy.
3. Authorizes the accidental take of a candidate, threatened, or endangered species by a farmer, rancher, employee, or contractor in the course of otherwise lawful routine and ongoing agricultural activities, as provided.
   1. Any known instances of accidental take are required to be reported to the department within 10 days.
   2. This section sunsets on January 1, 2024. (FGC §2087)

This bill extends the existing sunset to authorize accidental take of species protected pursuant to CESA at a ranch or farm until January 1, 2029, as provided. Specifically, this bill:

1. Extends the sunset authorizing the accidental take of candidate, threatened, or endangered species on a farm or ranch in the course of otherwise lawful routine and ongoing agricultural activities to January 1, 2029, as provided.
2. Requires the department to conduct outreach to the extent feasible using existing channels to raise awareness of this reporting requirement within the agricultural community.

Background

In 1997, a provision was added to CESA that provided that accidental take of candidate, threatened, or endangered species resulting from inadvertent or ordinary negligent acts that occur on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is allowed (FGC §2087). This provision sunset on December 31, 2002 (SB 231 (Costa, Chapter 528, Statutes of 1997). This accidental take provision in modified form was subsequently extended multiple times to the current sunset of January 1, 2024. The most recent sunset extension in 2019 added the reporting provision requiring department notification to the department after accidental take (SB 62 (Dodd, Chapter 137, Statutes of 2019)). There have been no reports of accidental take to the department.

Comments

Actual problem or a theoretical one? Various plausible scenarios that could result in the accidental take of listed species – particularly small listed species – during routine or ongoing activities at a ranch or farm are imaginable. As noted above, there have been no reports of accidental take under this provision despite the reporting requirement. It is not clear that the outreach when the reporting requirement was instituted had the reach or persistence to those most likely to be affected by the change in law.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes

According to the Senate Appropriations Committee, this bill’s fiscal impact is unknown, potentially significant ongoing costs (Fish and Game Preservation Fund [FGPF]) for the Department of Fish and Wildlife to compile accidental take reports, conduct outreach, and raise awareness.

SUPPORT: (Verified 9/1/23)

California Farm Bureau Federation (source)

African American Farmers of California

Agricultural Council of California

Almond Alliance of California

American Pistachio Growers

California Alfalfa and Forage Association

California Apple Commission

California Association of Pest Control Advisers

California Association of Winegrape Growers

California Blueberry Association

California Blueberry Commission

California Cattlemen’s Association

California Citrus Mutual

California Cotton Ginners and Growers Association

California Fresh Fruit Association

California Grain and Feed Association

California Pear Growers Association

California Seed Association

California Tomato Growers Association

California Walnut Commission

Nisei Farmers League

Olive Growers Council of California

Rural County Representatives of California

Western Agricultural Processors Association

Western Plant Health Association

Wine Institute

OPPOSITION: (Verified 9/1/23)

None received

ARGUMENTS IN SUPPORT: According to the author, “This is extremely important for our farmers and ranchers. This measure protects both farmers and endangered species. AB 606 will ensure that there’s a feasible way for farmers and ranchers to conduct their operations while allowing endangered and threatened species access to as much habitat as possible.”

ASSEMBLY FLOOR: 79-0, 4/27/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

NO VOTE RECORDED: Jim Patterson

Prepared by: Katharine Moore / N.R. & W. / (916) 651-4116

9/4/23 9:47:05

**** END ****

SENATE COMMITTEE ON

Senator Anthony Portantino, Chair

2023 - 2024 Regular Session

AB 606 (Mathis) - California Endangered Species Act: accidental take: farms or ranches

Bill Summary:

This bill would extend the sunset to authorize accidental take at a ranch or farm until January 1, 2029, and would require the Department of Fish and Wildlife (DFW) to conduct outreach to raise awareness within the agricultural community about required reporting of an accidental take, as specified.

Fiscal Impact:

• Unknown, potentially significant ongoing costs (Fish and Game Preservation Fund [FGPF]) for DFW to compile accidental take reports, conduct outreach, and raise awareness.

Background:

The California Endangered Species Act (CESA) and the federal Endangered Species Act (ESA) generally provide a scientific basis for determining the status of species that potentially face extinction. Although there are differences between CESA and ESA, the overarching intent of both laws is to conserve and protect plant and animal species at risk of extinction. Under CESA, species whose survival is imperiled may be categorized as “endangered,” “threatened,” or “candidate” and, once categorized, the “take” of those species is prohibited unless authorized by a permit issued by the appropriate regulatory agency. Under CESA, permitting resides with DFW.

“Take” is defined in state law as hunting, pursuing, catching, capturing, or killing, or attempting to hunt, pursue, catch, capture, or kill. This is different than the definition under the ESA, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct. California does not have a state equivalent for harassing or harming.

One exception to the take prohibition in CESA is the “accidental take” provision. This provision, which was first enacted in 1997 with a sunset clause, exempts the accidental take of protected species that occurs on a farm or ranch in the course of routine and ongoing agricultural activities, which are defined in state regulations. Since the enactment of the accidental take provision, the Legislature has extended the provision five times with minor changes. The accidental take provision sunsets on January 1, 2024.

The most recent sunset extension in SB 62 (Dodd), Chapter 137, Statutes of 2019, requires the reporting of known instances of accidental take to DFW within ten days. As of March 2023, DFW has not received any reports of accidental take since the reporting requirement became law. As noted in the Water, Parks, and Wildlife Committee analysis of this bill, absent any information, it is difficult to know what impacts routine and ongoing agricultural activities may have on listed species. It is also difficult to quantitatively assess the benefits to endangered species of extending the accidental take provisions.

Proposed Law:

This bill would extend the sunset to authorize accidental take at a ranch or farm, and would require DFW to conduct outreach to raise awareness within the agricultural community about required reporting of an accidental take. Specifically, this bill would:

1. Extend the sunset to authorize accidental take at a ranch or farm from January 1, 2024 until January 1, 2029.
2. Require DFW to conduct outreach, to the extent feasible and using existing channels, to raise awareness within the agricultural community of the requirement to report to DFW within 10 days the accidental take of a candidate, threatened, or endangered species that occurs on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities.

Related Legislation:

SB 62 (Dodd, Chapter 137, Statutes of 2019) extended the sunset date on the authority for accidental take of listed species in the course of otherwise lawful and routine agricultural activities until January 1, 2024, and required the reporting of known instances of accidental take to the department within ten days, among other provisions.

SB 749 (Wolk, Chapter 387, Statutes of 2013) extended the sunset of the accidental take provision until January 1, 2020, and defines accidental, among other provisions.

SB 1303 (Wolk, Chapter 290, Statutes of 2010) extended the sunset of the accidental take provision until January 1, 2014, among other provisions.

SB 1436 (Ducheny, Chapter 82, Statutes of 2008) extended the sunset of the accidental take provision until January 1, 2011.

SB 550 (Costa, Chapter 32, Statutes of 2002) extended the sunset of the accidental take provision until January 1, 2009, and deleted the requirement that the agricultural acts be inadvertent or ordinary negligent acts in order for the exception to apply.

SB 231 (Costa, Chapter 528, Statutes of 1997) created the accidental take provision in law for routine, ongoing agricultural activities, among other provisions.

Staff Comments:

The FGPF is among DFW’s largest funding sources, providing roughly one‑fifth of overall DFW resources. The fund receives revenues from a variety of fees, including recreational hunting and fishing license and permit fees. Expenditures from the FGPF support many of the department’s core activities, including various wildlife conservation efforts, law enforcement, management of both department‑owned lands as well as inland and coastal fisheries, and oversight over the state’s commercial fishing industries.

In recent years, expenditures from the FGPF have exceeded its revenues by roughly $20 million annually. This gap developed in large part because the state has created new costs for the fund without adding an equivalent amount of new revenues. These costs have resulted from significant employee salary increases negotiated through the state collective bargaining process, assigning new activities to DFW without providing new funding, and shifting activities from other funding sources to the FGPF. Current projections expect the FGPF fund balance to be exhausted by next year, in 2024-25.

DFW recently completed a service-based budget (SBB) review that identified the gaps between the department’s “mission” level of service (defined as the service standards and essential activities required for DFW to meet its mission and statutory requirements) and its current service levels. DFW determined that the number of staff hours currently being spent are far below what would be needed to meet mission levels in most service areas. Current services are less than one-third of mission levels in most areas. Existing service levels in the species and habitat conservation, permitting and environmental protection, law enforcement, and public use and enjoyment service areas each fall short of mission levels by at least 1.4 million hours a year.

The largest shortfall is in the species and habitat conservation service area. DFW staff currently spend about 750,000 hours per year on species and habitat conservation activities, compared to the 2.9 million hours that the department estimates would be needed to meet its mission in this area. The second largest shortfall is the Permitting and Environmental Protection service area.

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: AB 606 Hearing Date: June 22, 2023

Subject: California Endangered Species Act: accidental take: farms or ranches

BACKGROUND AND EXISTING LAW

1. Existing law establishes the Department of Fish and Wildlife (department) and the Fish and Game Commission (commission) in the California Natural Resources Agency.
   1. The department’s charge is to manage the state’s diverse fish, wildlife, and plant resources, among other things.
   2. In general, the commission sets regulations that the department implements and enforces.
2. Existing law prohibits the take of species listed as endangered or threatened under the California Endangered Species Act (CESA) (Fish and Game Code (FGC) §§2050 et seq.), as specified.
   1. A person is prohibited from importing, exporting, or taking, possessing purchasing, or selling within the state any species, or any part of product thereof that the commission determines to be an endangered or threatened species, with specified exceptions.
   2. Under CESA, the commission is authorized to designate species, including plants, as threatened or endangered. Species that have been advanced to candidacy by the commission have the same protections as listed species until resolution of their candidacy.
3. In 1997, a provision was added to CESA that provided that accidental take of candidate, threatened, or endangered species resulting from inadvertent or ordinary negligent acts that occur on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities is allowed (FGC §2087). This provision sunset on December 31, 2002 (SB 231 (Costa, Chapter 528, Statutes of 1997). This accidental take provision in modified form was subsequently extended multiple times to the current sunset of January 1, 2024 (SB 550 (Costa, Chapter 32, Statutes of 2002), SB 1436 (Ducheny, Chapter 82, Statutes of 2008), SB 1303 (Wolk, Chapter 290, Statutes of 2010), SB 749 (Wolk, Chapter 387, Statutes of 2013), and SB 62 (Dodd, Chapter 137, Statutes of 2019)).
4. When the sunset of accidental take provision was more recently extended in 2019, a reporting requirement was added. Any known instances of accidental take are required to reported to the department within 10 days (FGC §2087(b)).
5. Existing law authorizes the department to approve an application from an agricultural-based nonprofit or other nonprofit organization to initiate and undertake public education and outreach activities that promote the achievement of the objectives of CESA with certain information (FGC §2086(f)).

PROPOSED LAW

This bill would remove the existing sunset to authorize accidental take at a ranch or farm indefinitely.

ARGUMENTS IN SUPPORT

According to the author, “This is extremely important for our farmers and ranchers. This measure protects both farmers and endangered species. AB 606 will ensure that there’s a feasible way for farmers and ranchers to conduct their operations while allowing endangered and threatened species access to as much habitat as possible.”

ARGUMENTS IN OPPOSITION

None received.

COMMENTS

Actual problem or a theoretical one?

In reviewing records of previous legislative action and discussions with advocates, there is an argument for continuing the sunset extension. Various plausible scenarios that could result in the accidental take of listed species – particularly small listed species – during routine or ongoing activities at a ranch or farm are imaginable. That written, to Committee staff knowledge, there have been no reports of accidental take under this provision despite the reporting requirement. This is concerning. However, it must be acknowledged at the same time that the outreach when the reporting requirement was instituted may have not had the reach or persistence to those most likely to be affected.

In view of this, the Committee may wish to amend the bill to require the department, using its existing resources, to perform outreach, and to reinstitute a sunset in 5 years. It may be, for example, that the department’s outreach could fit under the existing public and agricultural outreach program identified in FGC §2086(f), or the department maintains numerous email lists that are regularly used to deliver news and other information to subscribers. The renewed sunset date will provide an opportunity to evaluate whether the outreach results in any reported accidental take. [Amendment #1]

Recent related legislation

SB 62 (Dodd, Chapter 137, Statutes of 2019) extended the sunset date on the authority for accidental take of listed species in the course of otherwise lawful and routine agricultural activities until January 1, 2024, and required the reporting of known instances of accidental take to the department within ten days, among other provisions.

SB 749 (Wolk, Chapter 387, Statutes of 2013) extended the sunset of the accidental take provision until January 1, 2020, and defines accidental, among other provisions.

SB 1303 (Wolk, Chapter 290, Statutes of 2010) extended the sunset of the accidental take provision until January 1, 2014, among other provisions.

SB 1436 (Ducheny, Chapter 82, Statutes of 2008) extended the sunset of the accidental take provision until January 1, 2011.

SB 550 (Costa, Chapter 32, Statutes of 2002) extended the sunset of the accidental take provision until January 1, 2009, and deleted the requirement that the agricultural acts be inadvertent or ordinary negligent acts in order for the exception to apply.

SB 231 (Costa, Chapter 528, Statutes of 1997) created the accidental take provision in law for routine, ongoing agricultural activities, among other provisions.

SUGGESTED AMENDMENTS

AMENDMENT 1

Please add on page 2, line 12, after “days.”

“The department shall conduct outreach to the extent feasible using existing channels to raise awareness of this reporting requirement within the agricultural community.”

Please insert after page 2, line 14:

“(d) This section shall remain in effect only until January 1, 2029, and as of that date is repealed, unless a later enacted statute that is enacted before January 1, 2029, deletes or extends that date.”

SUPPORT

California Farm Bureau Federation (sponsor)

African American Farmers of California

Agricultural Council of California

Almond Alliance of California

American Pistachio Growers

California Alfalfa and Forage Association

California Apple Commission

California Association of Pest Control Advisers

California Association of Winegrape Growers

California Blueberry Association

California Blueberry Commission

California Cattlemen’s Association

California Citrus Mutual

California Cotton Ginners and Growers Association

California Fresh Fruit Association

California Grain and Feed Association

California Pear Growers Association

California Seed Association

California Tomato Growers Association

California Walnut Commission

Nisei Farmers League

Olive Growers Council of California

Rural County Representatives of California

Western Agricultural Processors Association

Western Plant Health Association

Wine Institute

OPPOSITION

None Received

-- END --

Date of Hearing: April 19, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 606

Author:(Mathis) – As Introduced Ver:February 9, 2023

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

SUMMARY:

This bill indefinitely extends (1) the authority for an accidental take of listed species in the course of otherwise lawful routine and ongoing agricultural activities and (2) the requirement for a person, when an accidental take is known to occur, to report the take to the California Department of Fish and Wildlife (CDFW) within ten days.

FISCAL EFFECT:

CDFW anticipates no costs as a result of this bill.

COMMENTS:

1) Purpose. According to the author:

This measure protects both farmers and endangered species. [This bill] will ensure that there’s a feasible way for farmers and ranchers to conduct their operations while allowing endangered and threatened species access to as much habitat as possible.

2) Background. The California Endangered Species Act (CESA) and the federal Endangered Species Act (ESA) generally provide a scientific basis for determining the status of species that potentially face extinction. Although there are differences between CESA and ESA, the overarching intent of both laws is to conserve and protect plant and animal species at risk of extinction. Under CESA, species whose survival is imperiled may be categorized as “endangered,” “threatened,” or “candidate” and, once categorized, the “take” of those species is prohibited unless authorized by a permit issued by the appropriate regulatory agency. Under CESA, permitting resides with CDFW.

“Take” is defined in state law as hunting, pursuing, catching, capturing, or killing, or attempting to hunt, pursue, catch, capture, or kill. This is different than the definition under the ESA, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct. California does not have a state equivalent for harassing or harming.

One exception to the take prohibition in CESA is the “accidental take” provision. This provision, which was first enacted in 1997 with a sunset clause, exempts the accidental take of protected species that occurs on a farm or ranch in the course of routine and ongoing agricultural activities, which are defined in state regulations. Since the enactment of the accidental take provision, the Legislature has extended the provision five times with minor changes. The accidental take provision sunsets on January 1, 2024.

Supporters maintain that the accidental take law gives a farmer conducting normal and routine agricultural activities the ability to host a listed species on their property. Without the protection of the accidental take law, farmers might avoid activities that benefit wildlife, such as the planting of a certain crop, or the temporary flooding of a field, which in turn, would result in a loss of habitat for the species.

The most recent sunset extension in SB 62 (Dodd), Chapter 137, Statutes of 2019, requires the reporting of known instances of accidental take to CDFW within ten days. As of March 2023, CDFW has not received any reports of accidental take since the reporting requirement became law. As noted in the Water, Parks, and Wildlife Committee analysis of this bill, absent any information, it is difficult to know what impacts routine and ongoing agricultural activities may have on listed species. It is also difficult to quantitatively assess the benefits to endangered species of extending the accidental take provisions.

3) Support. Writing in support, a coalition of agricultural organizations state:

California’s farmers and ranchers provide habitat for wildlife throughout the state. Unfortunately, California’s wildlife protection laws can sometimes make farming and ranching a challenge. Section 2087 provides an incentive for California’s farmers and ranchers to produce food and fiber in an environmentally friendly manner by reducing some of the liability associated with providing wildlife habitat on their property. Many farmers are fearful that if they allow habitat to develop on their property that they will unwittingly attract threatened and endangered species. They are then fearful that in the course of their routine and ongoing agricultural activities that they will accidentally harm one of these listed species, which can trigger civil and criminal liability. Section 2087 provides them assurances that pure accidental take will not be the impetus for liability. As a result, there is a net benefit for wildlife in California.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: March 28, 2023

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Rebecca Bauer-Kahan, Chair

ABPCA Bill Id:AB 606 (

Author:Mathis) – As Introduced Ver:February 9, 2023

SUBJECT: California Endangered Species Act: accidental take: farms or ranches

SUMMARY: Indefinitely extends the authority for accidental take of listed species in the course of otherwise lawful and routine agricultural activities, and the requirement to report known instances of accidental take to the Department of Fish and Wildlife (DFW) within ten days.

EXISTING LAW:

1. Provides under the California Endangered Species Act (CESA) for the listing and protection of species determined through biological scientific analysis to be endangered or threatened with extinction [Fish and Game Code (FGC) §§ 2070 et seq.].
2. Prohibits the take of species listed as endangered or threatened under CESA (FGC § 2080).
3. Allows the accidental take of candidate, threatened, or endangered species resulting from an act by a person acting as a farmer or rancher, a bona fide employee of a farmer or rancher, or an individual otherwise contracted by a farmer or rancher that occurs on a farm or a ranch in the course of otherwise lawful routine and ongoing agricultural activities, and repeals these provisions as of January 1, 2024 (FGC § 2087).
4. Requires a person to report accidental take to DFW within 10 days when it is known to occur (FGC § 2087).
5. Defines accidental to mean unintended or unforeseen (FGC § 2087).
6. Defines routine and ongoing, and excludes several agricultural activities from the definition of “routine and ongoing” including the conversion of agricultural land to nonagricultural uses, timber harvesting activities governed by the Board of Forestry, or activities that intentionally reduce habitat and wildlife to facilitate conversion to non-agricultural use (FGC § 2089; California Code of Regulation Title 14 § 786.1).
7. Authorizes locally designed voluntary programs for routine and ongoing agricultural activities on farms that encourage wildlife habitat (FGC § 2086).
8. Permits DFW to authorize, by permit, the take of listed species, but not fully protected species, if the take is incidental to an otherwise lawful activity and the impacts are minimized and fully mitigated (FGC § 2081).

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

1. Purpose of this bill. The accidental take provision has been in law since 1997 with five sunset extensions. This bill removes the existing sunset and thereby extends the authority for accidental take indefinitely. According to the author, “This measure protects both farmers and endangered species. [This bill] will ensure that there’s a feasible way for farmers and ranchers to conduct their operations while allowing endangered and threatened species access to as much habitat as possible.”
2. Background. CESA and the federal Endangered Species Act (ESA) generally provide a scientific basis for determining the status of species that potentially face extinction. Although there are differences between the federal and state acts, the overarching intent of both is to regulate and impose mitigation activities on activities that could contribute to the extinction of species. Under CESA, species whose survival are imperiled may be categorized as “endangered,” “threatened,” or “candidate” and once categorized, the take of those species is prohibited unless authorized by a permit issued by the appropriate regulatory agency. Under CESA, permitting resides with DFW.
   
   What is take? Take is defined in FGC § 86 as hunting, pursuing, catching, capturing, or killing, or attempting to hunt, pursue, catch, capture, or kill. This is different than the definition under the federal ESA, where take is defined as harassing, harming, pursuing, hunting, shooting, wounding, killing, trapping, capturing, or collecting, or attempting to engage in any such conduct. California does not have a state equivalent for harassing or harming.
   
   Accidental take provision. One exception to the take prohibition in CESA is the “accidental take” provision. This provision was first enacted in 1997 with a sunset clause. It exempts the accidental take of protected species that occurs on a farm or ranch in the course of routine and ongoing agricultural activities. Since enactment, the Legislature has extended the provision five additional times with minor changes. The accidental take provision sunsets on January 1, 2024.
   
   Supporters maintain that the accidental take law gives a farmer conducting normal and routine agricultural activities the ability to host a listed species on their property. Without the protection of the accidental take law, farmers might avoid activities that benefit wildlife, such as the planting of a certain crop, or the temporary flooding of a field, which in turn, would result in a loss of habitat for the species.
   
   What are routine and ongoing agricultural activities? Routine and ongoing agricultural activities are defined in regulation, and include the cultivation and tillage of soil; crop rotation; fallowing; dairying; the production, cultivation, growing, replanting, and harvesting of any agricultural commodity including viticulture, vermiculture, apiculture, or horticulture; the raising of livestock, fur bearing animals, fish, or poultry; any practices performed by a farmer on a farm as incident to or in conjunction with those farming operations, including the preparation for market, delivery to storage or to market, or delivery to carriers for transportation to market, including any such activities recognized as compatible uses pursuant to the Williamson Act (Government Code § 51200 et seq.) provided such activities are consistent with the economics of agricultural operations; and other similar agricultural activities as determined by DFW during its review and approval of a particular voluntary local program. Ordinary pasture maintenance and renovation and dry land farming operations consistent with rangeland management are considered routine and ongoing agricultural activities.
   
   Routine and ongoing agricultural activities do not include conversion of agricultural land to nonagricultural use, timber harvesting activities governed by the State Board of Forestry or activities that intentionally reduce habitat and wildlife to facilitate conversion to non-agricultural use. The conversion of rangeland to more intensive agricultural uses such as permanent crops is not considered a routine and ongoing agricultural activity.
   
   Reporting Requirement. The most recent sunset extension [SB 62 (Dodd), Chapter 137, Statutes of 2019] requires the reporting of known instances of accidental take to the DFW within ten days. The committee analysis for SB 62 pointed out that while there is value in collecting data on the utilization of the accidental take provision, any reports compiled from this information will only be as good as the data the DFW receives. In this case, there is no data. As of March 2023, DFW has not received any reports of accidental take since the reporting requirement became law. Absent any information, it is difficult to know what impacts routine and ongoing agricultural activities may have on listed species. It is also difficult to quantitatively assess the benefits to endangered species of extending the accidental take provisions.
3. Arguments in support. Numerous agricultural groups write in support, stating that “[a]ccidental take is an important provision of CESA as it reduces liability for growers who either have no reason to believe a protected species is present on their land, or have taken action to prevent take of the species and still accidentally take a listed species.” Additionally, the accidental take protections “[…] provide an incentive for California’s farmers and ranchers to produce food and fiber in an environmentally friendly manner by reducing some of the liability associated with providing wildlife habitat on their property.”
4. Related legislation. SB 62 (Dodd), Chapter 137, Statutes of 2019, extends the sunset date on the authority for accidental take of listed species in the course of otherwise lawful and routine agricultural activities until January 1, 2024, and requires the reporting of known instances of accidental take to DFW within ten days. SB 62 also extends the California State Safe Harbor Agreement Program Act indefinitely.
   
   SB 749 (Wolk), Chapter 387, Statutes of 2013, extended the accidental take provision until January 1, 2020, and defines accidental, among other provisions.
   
   SB 1303 (Wolk), Chapter 290, Statutes of 2010, extended the accidental take provision until January 1, 2014, and encouraged public education for voluntary programs for agricultural activities that promote wildlife habitat.
   
   SB 1436 (Ducheny), Chapter 82, Statutes of 2008, extended the accidental take provision until January 1, 2011.
   
   SB 550 (Costa), Chapter 32, Statutes of 2002, extended the accidental take provision until January 1, 2009, and deletes the requirement that the agricultural acts be inadvertent or ordinary negligent acts in order for the exception to apply.
   
   SB 231 (Costa), Chapter 528, Statutes of 1997, created the accidental take provision in law for routine, ongoing agricultural activities, and requires the DFW to adopt regulations that authorize locally designed voluntary programs for routine and ongoing agricultural activities on farms or ranches to encourage habitat for candidate, threatened, and endangered species, and wildlife generally.

REGISTERED SUPPORT / OPPOSITION:

Support

California Farm Bureau Federation (Sponsor)
African American Farmers of California
Agricultural Council of California
American Pistachio Growers
California Alfalfa & Forage Association
California Apple Commission
California Association of Pest Control Advisers
California Association of Winegrape Growers
California Blueberry Association
California Blueberry Commission
California Cattlemen's Association
California Cotton Ginners & Growers Association
California Fresh Fruit Association
California Grain and Feed Association
California Pear Growers
California Seed Association
California Tomato Growers Association
California Walnuts
Nisei Farmers League
Olive Growers Council of California
Rural County Representatives of California
Western Agricultural Processors Association
Western Plant Health Association
Wine Institute

Opposition

None on file

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