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Note:  This is a revised version of an article which recently appeared in
the Association of Environmental Professionals (AEP) Bay Echo newsletter. 
This article (in WordPerfect 5.1 format) is also available from
ftp://ftp.crl.com/users/ro/baseline/cesa.wp

CESA Reform:  Here Comes the Steamroller!

      By Eric Parfrey, BASELINE Environmental Consulting

Even before the Republicans took control of the U.S. Congress in November,
1994 and almost wrested control of the California Assembly away from Speaker
Willie Brown, both the Federal and State Endangered Species Acts had become
targeted for major reform. It now appears likely that conservative
legislators in Washington, D.C. and Sacramento will make reform of the U.S.
Endangered Species Act, and its State counterpart, the California Endangered
Species Act (CESA), one of the hottest topics to be debated during the
current Congressional and Legislative sessions.  Many political players are
jockeying for position on this emotional and complex issue. 

The growing clamor for reform (and weakening) of the laws is being
orchestrated by several key California legislators from both political
parties.  Governor Pete Wilson has also made CESA reform one of his top
priorities.  The attempts to weaken the State law also come at time when the
Administration has finally convinced embattled State Fish and Game Director
Boyd Gibbons, whose agency is charged with implementing CESA, to step aside
and let the governor fill the position with a more effective (and politically
astute) director. Not coincidentally, the person who has reportedly been
chosen by the governor to succeed Gibbons is a forest products specialist;
the forestry industry has been one of the most active special interest groups
in efforts to reform the CESA law.

At the end of March, Governor Wilson joined the national debate on the
endangered species issue by introducing his Administration's proposed
overhaul of the CESA law, only days after newspapers reported that he had
made a decision to enter the 1996 Presidential race.  Wilson's proposal to
rein in the endangered species regulations are included in a bill carried by
the Republican leader of the California Senate, Ken Maddy.  The Maddy
legislation, SB 131, advocates a radical repeal and reenactment of CESA,
changing the Legislative findings that are at the heart of the original law
and "de-listing" (ending protection) of all currently listed threatened and
endangered species within five years.  SB 131 is analyzed in further detail
later in this article.  

Coupled with the provisions of SB 131, the Governor also signed in March an
executive order which would suspend the California Endangered Species Act for
a period of five years so that farmers and public agencies such as Caltrans
could proceed with repairs to storm damaged properties and facilities. The
provisions of SB 131 and suspension of the existing CESA law has infuriated
environmentalists who believe Wilson is pandering to some of the same special
interest groups that will be asked to contribute to his anticipated
Presidential campaign.  The timing for the unveiling of the SB 131 text and
the executive order suspending the current law for emergency repairs has
neatly coincided with the Governor's attempt to position himself as a leading
Republican candidate for the White House. 

Most recently, in April and May 1995 Assembly and Senate hearings have
already begun on several of the reform bills, although most people would
never know it since the reporting on the hearings has been non-existent to
date.  The major focus of the debate over how drastically to overhaul the
California Endangered Species Act is occurring in separate Assembly and
Senate committees of the State Legislature, as well as in joint oversight
hearings of the two committees. On April 18th, the Assembly Water, Parks and
Wildlife Committee took the first actions on CESA reform bills.  The
committee took testimony and voted AB 350 (Bustamante) and AB 137 (Olberg)
out of committee, at the same time killing two other relatively minor CESA
Assembly bills introduced by liberal Democrats Richard Katz and Bob Campbell
(AB 874 and 1086). 

It is important to understand what type of "reform" to the CESA Assembly
members are thinking about.  For example, AB 137 (sponsored by freshman Keith
Olberg, who was previously employed as staff member of the Building Industry
Association) would require that all future listings of endangered and
threatened species be approved by vote of the Legislature. The bill would
also mandate that the documented "benefits" of saving species would have to
outweigh the costs. The bill, similar to other Senate measures, also includes
a very vague "takings" clause that would require compensation for regulatory
takings.

Now, Sen. Tom Hayden's Natural Resources Committee has scheduled a first
(and, maybe only) hearing on the Wilson Administration's radical overhaul of
CESA (SB 131) and other bills next Tuesday, May 9th.  In addition, a schedule
of joint oversight workshops composed of the two committees has already
begun.  The next joint committee meeting is set for May 18th, when the topic
is a discussion of the strengths and weaknesses of the Natural Communities
Conservation Planning (NCCP) program.  There will be a final joint committee
meeting on July 18th to discuss recommendations for CESA reform, focussing on
the Clinton Administration's proposed reforms of the U.S. Endangered Species
Act and Pete Wilson's proposed reform of the State ESA.

This article identifies the major players in both houses of the State
Legislature who have introduced legislation to reform (and protect) the
California Endangered Species Act, summarizes the most important bills that
have been introduced, and touches upon the interrelationship of reform
efforts at the State and Federal level. 

Background

Most planners, biologists and other environmental consultants who are
familiar with the two endangered species laws and how they are implemented in
California admit that there are problems that should be addressed through
legislative reform.  However, there is a big difference between reforming
existing environmental regulations to make them more efficient while adhering
to the intent of the original act, versus using the mood for reform to
significantly weaken or gut the legislation, which is the stated goal of some
conservative Republicans and Democrats.

Four CESA reform bills were heard in the State Legislature in 1994, with
bipartisan support, were sent to a conference committee during the July and
August Legislative recess, to see if agreement could be reached on one or
more compromise CESA reform bills. The conference committee was composed of
legislative staffers, many special interest groups, environmentalists, the
General Counsel for the Department of Fish and Game, American Planning
Association and several other lobbyists.  The conference committee came close
to reaching consensus on a couple of technical issues that could have been
the basis of a compromise bill, but the shaky consensus blew up on the final
day of the Legislative session in August 1994, reportedly over the legal
definition of the word "conserve."

Now, following the conservative Republican gains in the November elections,
the special interest groups that are the most affected by the CESA law have
become emboldened in their pursuit of reform.  The CESA Reform Working Group,
active during last year, began meeting again in January 1995. The group is
composed primarily of representatives of the special interest groups that are
directly affected and regulated by the endangered species laws, including the
Building Industry Association, the Farm Bureau, mining, utility, and forestry
organizations, large land developers, and landowners such as the Irvine
Company. The working group has drafted legislation to make numerous changes
in the existing law and Assemblyman Cruz Bustamante (D-Fresno) has introduced
the bill (AB 350).

Within the Legislature, the key players in the unfolding political drama over
the endangered species issue are expected to be Assemblyman Bustamante;
Senator Ken Maddy, representing the Wilson Administration; Senator Tom Hayden
(D-Santa Monica), chair of the Natural Resources Committee and firmly in the
environmentalist camp; and Assemblymen Keith Olberg (R-Victorville).  Several
other members have introduced bills, including Senators Jim Costa (D-Fresno),
representing agricultural interests, and Lucy Killea (I-San Diego), and
freshman Assembly Members Tom Woods and George House, Republicans
representing Redding and Modesto, respectively.  All of these legislators
have introduced CESA bills.  Two previously noted CESA bills introduced by
Assemblyman Bob Campbell (D-Richmond) and Assemblyman Richard Katz (D-
Panorama City) have already been defeated in committee, although they could
be resurrected later as two year bills. 

The focus of much of the drama is expected to occur in Senator Hayden's
Natural Resources and Wildlife Committee.  It is rumored that Senate majority
leader Bill Lockyer appointed Hayden to chair the committee to blunt the
legislative assault on the CESA.  Hayden has attempted to delay hearing the
bills until later in 1995 or 1996, but he has been forced by the conservative
bill authors to schedule a series of joint Senate-Assembly hearings that have
already begun in May 1995. Clearly 

Hayden's committee has hired Charlie Warren to work as staff on the issue.
Warren is a long time liberal Democrat who is known for his savvy political
experience; he previously served as director of the State Lands Commission
and in President Jimmy Carter's cabinet. He also authored several pieces of
influential legislation during the 1960's and 1970's as an Assemblyman,
including establishment of the California Energy Commission.

On the other side of the debate, the CESA Reform Working Group has hired an
"issues management" public relations firm, Burson-Marsteller of Sacramento. 
A recent memo from the working group to its members states that "We all
recognize that to be successful, we have to effectively and regularly
communicate to the public the tremendous economic dislocations and unintended
consequences caused by the current state and federal endangered species
acts."  Members are being asked to submit specific examples of economic and
social problems caused by the laws. In a March 2 letter to Sen. Hayden, the
CESA Reform Working Group has challenged the Natural Resources Committee to
hold public hearings "in the areas of the state in which the listing of some
species has contributed to economic decline and job loss."   
  
A Brief Summary of CESA Reform Bills

At least a dozen bills have been introduced in the California Legislature
with the stated intent of amending the California Endangered Species Act,
and/or changing the authority of the department of Fish and Game and the Fish
and Game Commission to enforce it.  The bills are listed below in numerical
order.  Some of the draft bills are referred to as probable "spot" bills.  A
spot bill is one that has been introduced by a legislator with little
accompanying language in order to "hold a spot."  The intent of the
legislator may be to later amend the bill to include the substance of the
author's proposal, or to simply let the bill die after scoring some
ideological point or addressing some constituent request.

The following bills can be accessed via on-line services provided by the
California Senate through Internet.  Use a gopher client program to reach
"gopher.sen.ca.gov," and then select "Access bill text, analysis, codes,
etc."
 
AB 137 (Olberg).  This bill is one of three pieces of CESA-related
legislation introduced by newcomer Assemblyman Keith Olberg AB 137 would
enact a drastic change in the process for listing species as threatened or
endangered under the CESA. The bill would shift the responsibility for final
approval of a listing from the California Fish and Game Commission to the
Legislature.  AB 137 would prohibit the listing of any additional species
except by statute enacted by the Legislature, after an economic assessment
report had been prepared to show that the benefits outweigh the costs of
protecting the species.  The bill would also provide that just compensation
be paid for the "taking" of property, if the designation of critical habitat
or implementation of a species recovery plan reduces the fair market value of
the property by 20 percent or more.

AB 165 (Richter).  This is not really a CESA reform bill, but is included
here because it would severely curtail the ability of the Department of Fish
and Game to implement recovery plans and other endangered species related
actions in 35 counties of California.  The bill would require that any action
of the Department must be found to be consistent with General Plan policies
that have been adopted by rural counties (less than 200,000 population) in
the State. The bill was reportedly written by Bernie Richter (R-Chico) in
response to a local development controversy in Redding. A project was opposed
by the Department of Fish and Game at the last minute in testimony before the
Shasta County Board of Supervisors after the department had failed to submit
written comments in accordance with CEQA deadlines. The original intent of
the bill was to force the Department to adhere to CEQA deadlines for
comments, but the bill as drafted is much broader in scope.

AB 350 (Bustamante).  Cruz Bustamante, a conservative Democrat from the
Central Valley who sits on the Agriculture Committee, was a key player in
last year's unsuccessful CESA negotiations. His office works directly with
the development-oriented special interest groups that make up the CESA Reform
Working Group. AB 350 is a replica of a similar bill that he introduced last
year.  The bill changes the process by which the Department of Fish and Game
and its commission list individual species as endangered or threatened, and
requires the department to prepare recovery plans for newly listed species
within six months of the listing.  A major criticism of the existing CESA law
is that new species are continually added to the protected list, but the
mandated recovery plans that spell out how the species can be saved from
extinction (and then delisted) are rarely prepared unless there is a willing
developer to fund the effort.
 
A second frequent criticism of the CESA law is that isolated populations of
species or subspecies are being listed inappropriately, and that species
listed under the State law may be prevalent in other parts of the country.
For example, critics of the California and Federal ESA charge that the San
Joaquin kit fox, protected under both laws, is really a subspecies of the
more common desert kit fox, and thus the species itself is not in trouble. 
AB 350 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."  The bill also revamps the listing process by
establishing firm (and relatively short) deadlines for preparing studies
associated with the listing petition.

AB 428 (Olberg). The second CESA bill drafted by Assemblyman Olberg would
prevent the Department of Fish and Game from identifying lands as habitat
critical for the continued existence of a protected or candidate species if
individuals of the species "have not been directly observed by an employee of
the department to be present during the period of review" mandated by the
law.  The bill is a direct response to another of the most frequently voiced
criticism of the ESA laws, namely that properties are deemed by wildlife
biologists to be important breeding or foraging habitat for endangered
animals based upon historical sightings by non-biologists, scat or other
signs, or by vegetation type within a certain distance of a documented
sighting. The presence of some endangered species, such as San Joaquin kit
fox and Alameda whipsnakes, is very difficult to verify through a direct
visual sighting during a short period of time.  If enacted as written, AB 428
would represent a radical change in the ability of biologists to classify
land as habitat and require mitigation from developers, unless a recent
sighting of the species had been confirmed by department personnel, which in
some cases may take months or years to accomplish.

AB 1402 (House).  This bill by freshman Assemblyman George House (R-Modesto),
would require the department to compensate property owners for any damage
caused by a wide variety of species that are listed or otherwise "controlled
or relocated" by the department. The language of the bill appears to be
directed at "depredatory" mammals that damage agricultural land or livestock.

AB 1428 (Woods).  Under existing law, public officials are generally not
personally liable for discretionary acts they perform in accordance with
their jobs.  This short, but mean-spirited bill by freshman Assemblyman Tom
Woods (R-Redding), directly targets all Fish and Game employees, as well as
the independent biologists and citizens who provide information to them.  The
bill would make any employee personally liable "for economic damage to a
private business caused by any official act pursuant to the CESA, if the
public official or employee took that official act in reliance on scientific
information that cannot be scientifically verified."  Any person who gives
scientific information to the department would also be personally liable if
the information could not be verified.

AB 1630 (Olberg).  The third bill introduced by Olberg would enact a simple
and reasonable reform of the environmental review filing fees that are now
charged by the Department of Fish and Game to cover the cost of reviewing
Negative Declarations and EIRs for development projects.  This bill would
exempt projects from paying the fee if they are located within the boundaries
of a Habitat Conservation Plan or Natural Community Conservation Plan,
adopted according to CEQA and the State and Federal ESAs.

SB 131 (Maddy).  Republican whip Ken Maddy introduced a one page spot bill
last month that was amended on March 24th, only days after Governor Pete
Wilson's announcement that he was forming an exploratory committee to begin
collecting money for his Presidential campaign. By waiting one month after
the deadline for all new legislation to be introduced, the announcement was
part of a conscious strategy to time Wilson's entry into the CESA battle at
the most politically opportune moment in conjunction with his Presidential
campaign.  

Last year Maddy introduced SB 2091 on behalf of the administration. That bill
sought to make some of the same procedural changes to the listing process
that the Bustamante and other bills sought.  The 1994 Maddy bill, echoing
concerns of the Wilson administration and of the management at the Department
of Fish and Game, proposed to shift much of the authority to require
development projects to mitigate endangered species impacts away from the
department to local governments.  As I noted in my commentary last year, the
danger of this shift to local control is that protection of endangered
species in parts of the State that are openly hostile to the ESA (e.g., the
Central Valley) will be dependent on how many votes are available on any
given day at the City Council or Board of Supervisors.  It is also inevitable
that a radical shift to local control on endangered species issues will place
even more political pressure on planners, who will not have the ultimate
authority of the State or Federal government to back up their attempts to win
mitigation from developers.  

The new bill, SB 131, appears to include similar provisions that would give
local governments veto power over decisions by the State Department of Fish
and Game and the Fish and Game Commission.  However, the new Administration
proposal goes much further than the previous bill, dismantling the current
law and replacing it with an entirely new law and process.  AB 131 is truly
radical in the sense that it goes to the root of the perceived problem, the
clash of environmental protection for certain plant and animal species with
property rights and values. The bill proposes, for the first time, that the
legislative findings accompanying the California Endangered Species Act,
explicitly recognize this balancing of interests between the environment and
property values, and come down strongly on the part of economic interests
when a conflict arises. 

The second legislative finding for the newly enacted CESA states that
development project proponents will be required "to provide only those
measures to minimize, mitigate, or avoid the taking of those species that are
feasible and proportional in extent to the impact of the projects or
activities on those species."  The "proportional" language is highly
reminiscent of the recent U.S. Supreme Court decision, Dolan v. City of
Tigard, which held that exactions for a development permit must be "roughly
proportional" to the project's impacts.  However, the conscious use of the
word "feasible" in terms of mitigating wildlife impacts opens up a whole new
era of CESA legislation where the economic value of protecting and saving
species must be weighed against the economic value of growth and development. 
In such a calculation, the plants and animals will often lose.

SB 131 proposes a new, narrower definition of "take" that would allow the
destruction of endangered species habitat, as do some of the other bills
already discussed.  The bill also tightens the petitioning and listing
process so that listing a new species will be much more difficult.  The
existing CESA law allows a species to be listed if there is "sufficient"
evidence. The new law would require a much higher legal standard of proof. 
SB 131 would also exempt all CESA actions by the Fish and Game Department and
Commission from the California Environmental Quality Act (CEQA) and would
exempt development projects of less than five acres from endangered species
rules.

Perhaps the most disturbing provision of SB 131 is that it will cause the
"delisting" of all species that are currently listed as threatened or
endangered within five years, which corresponds with Wilson's executive order
to suspend the law so that emergency repairs can be completed.  The bill
states that all protection for listed species will expire on January 1, 2001,
"unless the department or any person prior to that time presents clear and
convincing evidence to the commission that the continued listing of the
species is warranted."  Thus, if this bill is enacted as written, developers
and land speculators will have a tremendous window of opportunity after the
turn of the century to bulldoze any suspected endangered species habitat,
while the Commission takes year and years wading through the relisting
petitions filed for the 328 animals and plants that are currently protected. 

On the positive side, SB 131 does propose some seemingly innovative solutions
to protecting habitat.  The legislation builds upon the regional planning and
ecosystem conservation approach advocated under the Administration's Natural
Communities Conservation Planning program, by proposing Species Strategic
Plans and a Conservation Partnership Act. A Species Strategic Plan would be
required to be prepared within two years of the listing of a species.  The
stated purpose of the plans 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."  The proposed Conservation
Partnership Act 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.  

SB 230 (Leslie).   This is another obvious spot bill, introduced by Senator
Tim Leslie (R-Carnelian Bay). The one page bill as currently drafted would
simply make a one word technical change int he existing law. It is unknown
whether Senator Leslie will play a major role in the CESA debate.

SB 883 (Hayden).  This short spot bill introduced by the Chair of the Natural
Resources and Wildlife Committee, strengthens the definition of "take" under
the CESA, so that it more closely approximates the definition under the
Federal ESA.  The "take" of a species would specifically include "degradation
of wildlife habitat so as to significantly disrupt essential behavioral
patterns of the affected species."  As many observers of the law know, one of
the hottest controversies of both the State and Federal laws is whether the
two laws give authority to the wildlife agencies to require mitigation based
upon habitat loss, not an actual "taking" (killing or harassing) of the
species. The U.S. Supreme Court has recently consented to hear the Sweet Home
case, in which the Appellate Court in Washington, D.C. decided that the
Federal ESA could not be construed to prohibit take of habitat.


SB 1120 (Costa).   Senator Jim Costa (D-Fresno) represents agricultural
interests.  This bill would 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."


SB 1177 (Killea).  A bill introduced by Senator Lucy Killea (I-San Diego)
addresses some of the agricultural community's concerns. The bill would
authorize the department to issue "take" permits to allow public agencies and
individuals to take listed species under specified conditions.  The bill
would require the department to work with public agencies and utilities to
develop long term incidental take agreements and to consult with agriculture
commissioners to develop best management practices for agricultural
activities that could affect endangered species.  SB 1177 would also allow
broadened judicial review of CESA actions.
-- 
BASELINE Environmental Consulting           Emeryville, CA:  (510) 420-8686
                                              Petaluma, CA:  (707) 762-5233
                                         San Francisco, CA:  (415) 986-2871
                                                Internet:  baseline@crl.com