🚀 go-pugleaf

Draft 5/5/95

Note:  This Position Paper has been prepared by Eric Parfrey and has been
reviewed by a small number of AEP members in the San Francisco Bay Area. 
The paper has not been formally reviewed or endorsed by members of the AEP
Legislative Committee or State Board of Directors.  Comments on this paper
may be directed to Eric Parfrey, BASELINE Environmental Consulting, 5900
Hollis Street, Emeryville, CA  94608, tel. (510) 420-8686, FAX (510) 420-
1707, or e-mailed to baseline@crl.com.  The text of this paper may be
retrieved in WordPerfect 5.1 format from
ftp.crl.com/users/ro/baseline/aep.pos.


                   ASSOCIATION OF ENVIRONMENTAL PROFESSIONALS
                             DRAFT POSITION PAPER:

                REFORM OF THE CALIFORNIA ENDANGERED SPECIES ACT
 

The purpose of this Position Paper is to outline the official position
adopted by the Association of Environmental Professionals on several major
bills introduced in the 1995 Session of the California State Legislature to
reform the California Endangered Species Act.  The Association of
Environmental Professionals (AEP) is an organization that represents over
4,000? environmental scientists, planners, and other professionals
throughout California.  AEP is quite concerned about the range of some of
the bills that have been introduced in the State Legislature.  AEP members
are often at the forefront of implementing the California Endangered
Species Act (CESA), whether through environmental analysis contained in
environmental impact reports, or through AEP members role as government
employees or consultants.

The Association of Environmental Professionals has been closely following
the debate over reform of the existing CESA laws.  The group is generally
concerned about the following broad issues that have been addressed in some
of the CESA reform bills:

Over-regulation  

AEP as an organization is well aware of the many arguments that have been
made in recent years regarding California's perceived loss of
competitiveness in the national and international economy. Many people
believe that the State's problems are directly linked to the increase in
environmental and other regulations which are hampering California
businesses in their ability to compete with other regions.  AEP supports
the need to regularly re-evaluate the State's most important environmental
law such as CESA and the California Environmental Quality Act to ensure
that the laws are being applied in the most effective and fair manner as
possible.  However, AEP absolutely opposes the current tone of much of the
proposed legislation to repeal or significantly weaken the original
Legislative intent of these laws.  

In our judgement, the following bills appear to be hostile to the original
intent of the California Endangered Species Act, and AEP will actively
oppose them:  AB 137 (Olberg); AB 428 (Olberg); AB 1086 (House); and AB
1428 (Woods).  In addition, although AB 131 (introduced by Sen. Maddy on
behalf of the Wilson Administration) has some specific provisions that we
may be able to support, a major intent of the bill is to overhaul the
entire law and force all protected species to be relisted under much
different criteria that the original law. AEP believes this onerous
requirement will wreak havoc and confusion during the period before all, or
most, of the species have been relisted, so the organization will actively
oppose this bill also.

Definition of "take"

Perhaps the single most important issue to resolve in CESA reform
legislation is the legal definition of "take" of a species.  The debate is
of national proportion; the U.S. Supreme Court has heard arguments on the
Sweet Home case in April, and is scheduled to render a decision by this
summer. The definition of take under the State law should be reconciled
with the definition under the federal law, as much as possible.  In
addition, "take" under the CESA should explicitly address issues related to
incidental take of species that may occur during normal agricultural
operations (see further discussion below under the "Exemption of certain
lands" section).

As a policy, AEP strongly supports the concept of take including the
destruction of habitat. Without such a definition, the original intent of
the CESA would be narrowed to apply only in a small number of situations,
and the law would lose much of its effectiveness in protecting species.

Economic or cost/benefit studies

Several of the CESA reform bills, including AB 137, mandate the preparation
of economic studies, or cost/benefit studies, to document the supposed
economic consequences of listing or delisting individual species. The
original intent of both the California and the U.S. Endangered Species Acts
was to focus on sound biological data when deciding whether an individual
species was being threatened with extinction.  Neither act provided for
economic considerations to enter into the decision-making process, since
the economic impacts of more or less biodiversity within a given region may
be difficult, if not impossible, to accurately quantify. 

Just as the California Environmental Quality Act (CEQA) specifically
excludes economic and financial considerations when studying the impacts of
a development project on the physical environment, so should the California
Endangered Species Act exclude economic or private financial factors from
weighing heavily when a decision is made to list or not to list a species. 
If cost/benefit analyses are required as part of the listing process, the
results of those studies may be widely debated, thereby making the process
even more contentious and susceptible to political, non-biological, and
unscientific data. AEP opposes the inclusion of cost benefit studies as
part of the CESA listing process.

AEP will support, however, the concept of requiring preparation of an
economic assessment report to address the costs and funding for management
and recovery programs, following listing of a species. SB 131 (Maddy)
requires that a Species Strategic Plan be completed within two years of the
listing of a species.  The stated purpose of the plan is to acknowledge
that "conservation of all species to the same level is impossible, and
therefore, the expenditure of resources must be prioritized according to
the feasibility and biological urgency of conserving different species." 
This appears to be a reasonable reform to address the reality of current
budget constraints at the Department of Fish and Game.

Public participation/peer review

AEP supports the attempts of some of the reform bills to address the need
for more efficient public participation during the listing process, such as
the provisions in AB 874 (Campbell, voted down in the Assembly Water,
Parks, and Wildlife Committee on April 18th).  The current process should
be modified to ensure more structured and open citizen and landowner
participation, through better notificiation and clearer hearings at the
California Fish and Game Commission. [We need more discussion here; I am
not entirely clear on what the best reforms should be] 

AEP believes the basic process of requiring petitions to be submitted to
the Commission requesting listing, or delisting, of individual species
should be retained. AEP strongly opposes any attempt to relieve the
Commission of their duty to make final decisions, such as shifting the
responsibility of listing to the Legislature, which at least one bill
proposes (AB 137, introduced by Assembly Member Keith Olberg, R-San
Bernardino).  

On the other hand, AEP believes there is some room for improvement of the
petition and listing process outlined under CESA, as proposed by several of
the CESA reform bills, including AB 350 (Bustamante).  The petitioning
process should be broadened to allow independent peer review of the
biological analyses that are prepared by the Department of Fish and Game;
however, the formal inclusion of outside consultant studies sponsored by
industry and other private representatives should not take precedence over
official State-sponsored biological studies.   [Note:  We need to talk
among ourselves about this--some members may feel strongly that making
biased industry studies a part of the legal record may poison or
unnecessarily bias the process away from "pure" science.]

"Takings" clauses

AEP strongly opposes all Legislative attempts to insert a "takings" clause
into the existing CESA law, as proposed by AB 137 and AB 1402.  Takings
clauses generally address the need for government to reimburse private
property owners for any financial loss purported to be a result of CESA
actions, such as designating a group of properties as habitat for an
endangered species.  Evaluating "takings" claims is very controversial and
could be subject to significant and widespread abuse, if it were to be
mandated as part of State law. As already noted above, the ability to
objectively and scientifically evaluate the effect of endangered species
habitat on individual property values, especially agricultural property
values, is highly questionable. Some AEP members believe takings clauses
will simply create an "appraisers' full employment act," without resulting
in any useful and objective information.  

The broad police powers that have been vested to local governments by the
State and federal Constitution, and Supreme Court decisions, clearly
include the responsibility for cities and counties to zone or redesignate
properties for the public good, e.g., zoning properties as within 100-year
flood plains or for agricultural, open space, and habitat uses.  Recent
court decisions relate to takings issues have not required local
governments to buy properties that are designated as open space or habitat.
Rather, recent Supreme Court decisions have reinforced and redefined the
legal principle that government agencies must prove a "nexus" between
development and environmental impacts to support required mitigation
measures, such as required dedication for public uses.  We feel that any
attempt to quantify supposed losses in property values due to CESA actions
will simply end up rewarding a few lucky landowners with windfalls of
taxpayer money.

Recovery plans/funding for DF&G

Some of the proposed bills address the need to require recovery plans for
individual species to be completed within a set time frame, e.g., AB 350
(Bustamante).  AEP shares the frustration of many participants in the CESA
process, who are disappointed in the small number of recovery plans that
have been prepared and adopted.  The original CESA legislation set forth a
process where a species would be listed as threatened or endangered, and a
formal plan to guide the species recovery and ultimate delisting would be
adopted by the Department of Fish and Game. Use of recovery plans by
developers and landowners would give some needed guidance to the
complicated system of development mitigation for individual projects. 
However, as we all are aware, the budget for the Department of Fish and
Game has never allowed for the preparation of many of these recovery plans.
Plans have only been adopted for some of the most important endangered
species, or when a willing developer or private group funded recovery plans
as part of project approval.

AEP opposes inclusion in CESA bills of strict time requirements for the
preparation of recovery plans within some period of time following listing
of a species, unless new funding sources are identified to ensure the plans
completion. The Department of Fish and Game has been overwhelmed in recent
years with increasing responsibilities to analyze development projects for
local agencies, as well as conserve and protect virtually all of the
State's natural wildlife resources.  The Governor and the State Legislature
have consistently refused to increase the department's budget in the wake
of increased responsibilities, or to dedicate significant new revenue
sources, beyond those enacted in 1990 under Public Resources Code 21089
(b), which allows the department to collect nominal fees for review of
environmental documents. It is unrealistic to expect that CDFG could
prepare recovery plans for all newly listed species within one year of
listing, as one bill requires, unless a new source of funding is provided. 
The end result of such an onerous requirement could be increased confusion
and inefficiencies in the implementation of the existing law.

Exemption of certain lands 

There has been discussion about the possibility exempting small properties,
or agricultural activities, from the provisions of the federal and State
Endangered Species Acts. U.S. Interior Secretary Bruce Babbitt has proposed
that the federal law exempt all parcels of land that are five acres or less
in size.  A similar provision has been included in at least one bill, SB
131 (Maddy), the Wilson Administration's proposed reform of the CESA. In
general, AEP would oppose such a wide exemption, since there are numerous
examples of valuable and irreplaceable habitat existing on five acres or
less of land.  [Note:  We may need to discuss this issue!  Personally, I
think this is a done deal, since Babbitt already suggested it.]

Some of the CESA reform bills that have been introduced also propose to
exempt certain agricultural practices from the law. For example, SB 1120,
introduced by Sen. Jim Costa (D-Fresno), proposes to protect farmers by
decriminalizing the accidental "take" of a listed or candidate species
resulting from "inadvertent or negligible acts that occur in the ordinary
course of otherwise lawful activities."  Another Senate bill, SB 1177 by
Killea (I-San Diego), would allow the Department of Fish and Game to issue
long term incidental take permits for public agencies and utilities, and
would require the department to consult with local agricultural
commissioners to develop best management practices for farm activities that
could affect endangered species.  AEP strongly supports the intent of these
provisions, which seek to minimize the impacts of normal agricultural
activities upon habitat through incentives, while decriminalizing
agricultural activities under the existing CESA.  A valuable outcome of the
reform of the law will be to finally recognize that the regulations should
treat agricultural operations different from land development activities. 
[Note: Do we need to debate this issue?] 

Sub-species and indicator species

AEP will oppose any Legislative attempts to limit listing to only species
level animals and plants, thereby discouraging sub-species and "indicator"
species from consideration.  This restriction is included in AB 350
(Bustamante).  The bill mandates a set of criteria that prioritizes the
allocation of funds by the Fish and Game Commission, by favoring the
preservation of single species genera occurring only in California over
subspecies and species that are "indicator, umbrella, or keystone" species
or that are "representative of a particular ecosystem."   Without further
justification for this overly broad restriction for listing sub-species,
such as the San Joaquin kit fox, or indicator species, such as the winter
run Chinook salmon, AEP will oppose such restrictions.  [Note:  I need help
on this biological issue, because I don't understand the subtleties of the
argument.  Are APA members who helped draft AB 350 supporting this
concept?]

Multiple species habitat planning

AEP strongly supports the concept of multiple species habitat planning,
which emphasizes planning for whole ecosystems, instead of the current
practice, which stresses recovery plans for individual species. The concept
has been proposed by California Resources Secretary Douglas Wheeler through
the new Natural Communities Conservation Program. This approach is clearly
the wave of the future in endangered species planning.  A provision of the
Maddy bill (AB 131) offers incentives to landowners and agencies to enter
into cooperative multiple species planning programs.  In addition, The bill
proposes a Conservation Partnership Act that would allow a landowner or
local agency to enter into a contract with the Fish and Game Department to
allow incidental take of a species, and would allow creation of assessment
districts to provide for long term maintenance of natural habitat areas. 
These forward-thinking ideas should be expanded upon and adopted as part of
a meaningful reform of the current CESA.

Relationship to FESA and CEQA

At least two important aspects of CESA reform that have not yet been fully
addressed in the reform bills introduced to date involve the act's
relationship with the federal Endangered Species Act (FESA) and with the
California Environmental Quality Act (CEQA).  SB 131 (Maddy) allows the
Fish and Game Commission to refuse a listing of a species if it is already
listed under the federal law.  This provision should be opposed because
CESA provides some protection to listed species beyond those protections of
the federal law.  There has been some discussion of rewriting the federal
ESA to allow states to take jurisdiction when a species is listed under
both laws. Programs should be developed that would further explore this
possibility, instead of keeping in place the current system, which is
unduly restrictive and redundant for species like the San Joaquin kit fox,
the salt marsh harvest mouse, the various kangaroo rats, and numerous other
species.

The relationship of the CESA to the California Environmental Quality Act
should also be clarified. One reform bill, AB 131, would exempt all CESA-
related actions from the requirements of CEQA. This is a much too broad
exemption that could cause all sorts of unintended ramifications. Further
though should be given to how CEQA may be most efficiently applied to CESA
actions, such as listing (and delisting) actions, adoption of habitat
management plans, and other actions.

Implementation of CESA during local agency approvals

Finally, AEP strongly urges the State Legislature to investigate how the
existing CESA law is implemented at the most important local level:  when a
City Council or Board of Supervisors is confronted with endangered species
issues during a development approval hearing.  It is our judgement that
many of the most important CESA-related decisions occur when mitigation
measures and conditions of approval are approved for individual development
projects. It is at the most critical juncture that "the rubber meets the
road."  In too many instances, debates over endangered species mitigation
(such as replacement of habitat lost at some specified ratio) degenerate
into shouting matches between lawyers for the applicant and for the public
agency. Planners are often caught in the middle.  Much of the confusion and
ambiguity in the current law (and in the working guidelines that have been
adopted internally within the Department of Fish and Game) must be removed,
so that all parties in the development process understand the rules of the
game at the start.  Adequate funding must also be assured for those
tireless field biologists at the department who form the all-important link
between the State and the local agency.  Without that working link, the
promise of CESA can never be realized.

If you have any questions regarding the AEP position on any of these
concepts or on any of the individual bills, please contact Eric Parfrey,
Senior Planner, BASELINE Environmental Consulting at (510) 420-8686, or the
AEP legislative advocate, Alan Lind at (916) 421-0954.
-- 
BASELINE Environmental Consulting           Emeryville, CA:  (510) 420-8686
                                              Petaluma, CA:  (707) 762-5233
                                         San Francisco, CA:  (415) 986-2871
                                                Internet:  baseline@crl.com