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FGC Sec 2080-2085 Taking, Importation, Exportation, or Sale (Endangered Species)
FISH AND GAME CODE
2080. No person shall import into this state, export out of this
state, or take, possess, purchase, or sell within this state, any
species, or any part or product thereof, that the commission
determines to be an endangered species or a threatened species, or
attempt any of those acts, except as otherwise provided in this
chapter, the Native Plant Protection Act (Chapter 10 (commencing with
Section 1900) of this code), or the California Desert Native Plants
Act (Division 23 (commencing with Section 80001) of the Food and
2080.1. (a) Notwithstanding any other provision of this chapter, or
Chapter 10 (commencing with Section 1900) or Chapter 11 (commencing
with Section 1925) of Division 2, but subject to subdivision (c), if
any person obtains from the Secretary of the Interior or the
Secretary of Commerce an incidental take statement pursuant to
Section 1536 of Title 16 of the United States Code or an incidental
take permit pursuant to Section 1539 of Title 16 of the United States
Code that authorizes the taking of an endangered species or a
threatened species that is listed pursuant to Section 1533 of Title
16 of the United States Code and that is an endangered species,
threatened species, or a candidate species pursuant to this chapter,
no further authorization or approval is necessary under this chapter
for that person to take that endangered species, threatened species,
or candidate species identified in, and in accordance with, the
incidental take statement or incidental take permit, if that person
does both of the following:
(1) Notifies the director in writing that the person has received
an incidental take statement or an incidental take permit issued
pursuant to the federal Endangered Species Act of 1973 (16 U.S.C.A.
Sec. 1531 et seq.).
(2) Includes in the notice to the director a copy of the
incidental take statement or incidental take permit.
(b) Upon receipt of the notice specified in paragraph (1) of
subdivision (a), the director shall immediately have published in the
General Public Interest section of the California Regulatory Notice
Register the receipt of that notice.
(c) Within 30 days after the director has received the notice
described in subdivision (a) that an incidental take statement or an
incidental take permit has been issued pursuant to the federal
Endangered Species Act of 1973, the director shall determine whether
the incidental take statement or incidental take permit is consistent
with this chapter. If the director determines within that 30-day
period, based upon substantial evidence, that the incidental take
statement or incidental take permit is not consistent with this
chapter, then the taking of that species may only be authorized
pursuant to this chapter.
(d) The director shall immediately publish the determination
pursuant to subdivision (c) in the General Public Interest section of
the California Regulatory Notice Register.
(e) Unless deleted or extended by a later enacted statute that is
chaptered before the date this section is repealed, this section
shall remain in effect only until, and is repealed on, the effective
date of an amendment to Section 1536 or Section 1539 of Title 16 of
the United States Code that alters the requirements for issuing an
incidental take statement or an incidental take permit, as
2081. The department may authorize acts that are otherwise
prohibited pursuant to Section 2080, as follows:
(a) Through permits or memorandums of understanding, the
department may authorize individuals, public agencies, universities,
zoological gardens, and scientific or educational institutions, to
import, export, take, or possess any endangered species, threatened
species, or candidate species for scientific, educational, or
(b) The department may authorize, by permit, the take of
endangered species, threatened species, and candidate species if all
of the following conditions are met:
(1) The take is incidental to an otherwise lawful activity.
(2) The impacts of the authorized take shall be minimized and
fully mitigated. The measures required to meet this obligation shall
be roughly proportional in extent to the impact of the authorized
taking on the species. Where various measures are available to meet
this obligation, the measures required shall maintain the applicant's
objectives to the greatest extent possible. All required measures
shall be capable of successful implementation. For purposes of this
section only, impacts of taking include all impacts on the species
that result from any act that would cause the proposed taking.
(3) The permit is consistent with any regulations adopted pursuant
to Sections 2112 and 2114.
(4) The applicant shall ensure adequate funding to implement the
measures required by paragraph (2), and for monitoring compliance
with, and effectiveness of, those measures.
(c) No permit may be issued pursuant to subdivision (b) if
issuance of the permit would jeopardize the continued existence of
the species. The department shall make this determination based on
the best scientific and other information that is reasonably
available, and shall include consideration of the species' capability
to survive and reproduce, and any adverse impacts of the taking on
those abilities in light of (1) known population trends; (2) known
threats to the species; and (3) reasonably foreseeable impacts on the
species from other related projects and activities.
(d) The department shall adopt regulations to aid in the
implementation of subdivision (b) and the requirements of Division 13
(commencing with Section 21000) of the Public Resources Code, with
respect to authorization of take. The department may seek
certification pursuant to Section 21080.5 of the Public Resources
Code to implement subdivision (b).
2081.1. Nothing in this chapter or in any other provision of law
prohibits the taking or the incidental taking of any endangered,
threatened, or candidate species if the taking was authorized by the
department through a permit or memorandum of understanding, or in a
natural communities conservation plan, habitat conservation plan,
habitat management plan, or other plan or agreement approved by or
entered into by the department, or in an amendment to such a permit,
memorandum of understanding, plan, or agreement and all of the
following conditions are met:
(a) The application process commenced on or before April 10, 1997.
(b) The department approved the permit, memorandum of
understanding, plan, agreement, or amendment thereto within either of
the following timeframes:
(A) On or before April 10, 1997.
(B) Between April 10, 1997, and January 1, 1998, and the
department also certifies that the permit, memorandum of
understanding, plan, agreement, or amendment thereto meets the
substantive criteria of subdivision (b) of Section 2081.
The permits, memoranda of understanding, plan, agreements, and
amendments thereto described in this section are deemed to be in full
force and effect, as of the date approved or entered into by the
parties insofar as they authorize the take of species. This section
does not apply to the "Emergency Management Measures Permit" issued
by the department on March 15, 1995.
2081.5. If an ongoing surface mining operation has been issued a
permit pursuant to Section 2770 of the Public Resources Code by the
lead agency, as defined in Section 2728 of the Public Resources Code,
is in compliance with the permit with regard to matters relating to
plants, and is in compliance with any memorandum of understanding
with the department for any of the purposes specified in Section 2081
of this code, the following provisions shall apply:
(a) The surface mining operator is not liable for criminal
prosecution pursuant to this code for any take of a threatened or
endangered plant species that is incidental to the surface mining
(b) If a plant species that exists on the private property of the
surface mining operator is added to the list of threatened species or
endangered species pursuant to this chapter after the date that the
operator was issued the permit, or if a plant species on the list of
threatened species or endangered species adopted pursuant to this
chapter is newly discovered on the private property of the operator
after that date, the department shall notify the operator by mail
within 14 days of the addition to the list or knowledge of the new
discovery by the department. Within 30 days from the date of the
notification, the department shall meet with the operator to discuss
an interim and permanent plan for the protection of the newly added
or newly discovered plant species. Within 60 days of the initial
meeting with the operator, the department shall issue reasonable and
feasible interim management measures required to protect the newly
added or newly discovered plant species that take into account the
economic impact on the surface mining operation. The department
shall work with the operator to develop and finalize a reasonable
memorandum of understanding for one of the purposes specified in
Section 2081 for the protection of the newly added or newly
discovered plant species as expeditiously as possible. Both the
interim management measures and the final memorandum of understanding
shall, to the extent feasible, avoid interference with ongoing
surface mining operations. The department shall send a copy of the
final memorandum of understanding to the lead agency that issued the
permit to the operator for the lead agency's information.
(c) The surface mining operator shall pay a fee to the department
in the amount the department determines is necessary to pay the
department's actual costs incurred in preparing interim management
measures and developing and finalizing a memorandum of understanding
for the protection of the newly added or newly discovered plant
species. The fees shall be deposited in the Endangered and Rare
Fish, Wildlife, and Plant Species Conservation and Enhancement
Account in the Fish and Game Preservation Fund and, notwithstanding
Section 13340 of the Government Code, are continuously appropriated
to the department for purposes of implementing this section.
2081.7. (a) Notwithstanding Sections 3511, 4700, 5050, and 5515,
and contingent upon the fulfillment of the conditions listed in
subdivisions (b), (c), and (d), the department may authorize, under
Chapter 1.5 (commencing with Section 2050) or Chapter 10 (commencing
with Section 2800), the take of species resulting from impacts
attributable to the implementation of the Quantification Settlement
Agreement, as defined in subdivision (a) of Section 1 of Chapter 617
of the Statutes of 2002, on all of the following:
(1) The salinity, elevation, shoreline habitat, or water quality
of the Salton Sea.
(2) The quantity and quality of water flowing in the All American
Canal, the Coachella Canal, the Imperial Valley and Coachella Valley
drains, the New and Alamo Rivers, the Coachella Valley Stormwater
Channel, and the habitat sustained by those flows.
(3) Agricultural lands in the Imperial Valley.
(4) The quantity and quality of water flowing in the Colorado
River, the habitat sustained by those flows, and the collection of
that water for delivery to authorized users.
(b) The Quantification Settlement Agreement is executed by the
appropriate parties on or before October 12, 2003.
(c) The department has determined that the appropriate agreements
have been executed to address environmental impacts at the Salton Sea
that include enforceable commitments requiring all of the following:
(1) Imperial Irrigation District to transfer 800,000 acre-feet of
conserved water, by conservation methods selected by the Imperial
Irrigation District, to the Department of Water Resources on a
mutually agreed-upon schedule in exchange for payment of one hundred
seventy-five dollars ($175) per acre-foot. The price shall be
adjusted for inflation on an annual basis.
(2) Imperial Irrigation District to transfer up to 800,000
additional acre-feet of conserved water, by conservation methods
selected by the Imperial Irrigation District, to the Department of
Water Resources during the first 15 years of the Quantification
Settlement Agreement on the schedule established for the mitigation
water that was previously to be transferred to the San Diego Water
Authority, or on a mutually agreed-upon schedule, at no cost for the
water in addition to the payment for the water from the mitigation
fund described in paragraph (1) of subdivision (b) of Section 3 of
Chapter 613 of the Statutes of 2003.
(3) As a condition to acquisition of the water described in
paragraph (1), the Department of Water Resources shall be responsible
for any environmental impacts, including Salton Sea salinity,
related to use or transfer of that water. As a condition to
acquisition of the water described in paragraph (2), the Department
of Water Resources shall be responsible for environmental impacts
related to Salton Sea salinity that are related to the use or
transfer of that water.
(4) The Metropolitan Water District of Southern California (MWD)
to purchase up to 1.6 million acre-feet of the water provided in
accordance with paragraphs (1) and (2) from the Department of Water
Resources at a price of not less than two hundred fifty dollars
($250) per acre-foot on a mutually agreed-upon schedule. The price
shall be adjusted for inflation on an annual basis. The Department
of Water Resources shall deposit all proceeds from the sale of water
pursuant to this paragraph, after deducting costs and reasonable
administrative expenses, into the Salton Sea Restoration Fund
established in Section 2932.
(5) The Metropolitan Water District of Southern California to pay
not less than twenty dollars ($20) per acre-foot for all special
surplus water received by MWD as a result of reinstatement of access
to that water under the Interim Surplus Guidelines by the United
States Department of Interior subtracting any water delivered to
Arizona as a result of a shortage. The money shall be paid into the
Salton Sea Restoration Fund. The price shall be adjusted for
inflation on an annual basis. Metropolitan Water District of
Southern California shall receive a credit against future mitigation
obligations under the Lower Colorado River Multi-Species Conservation
Plan for any funds provided under this paragraph to the extent that
those funds are spent on projects that contribute to the conservation
or mitigation for species identified in the Lower Colorado River
Multi-Species Conservation Plan and that are consistent with the
preferred alternative for Salton Sea restoration.
(6) Coachella Valley Water District, Imperial Irrigation District,
and San Diego County Water Authority to pay a total of thirty
million dollars ($30,000,000) to the Salton Sea Restoration Fund as
provided in paragraph (2) of subdivision (b) of Section 3 of Chapter
613 of the Statutes of 2003.
(d) All of the following conditions are met:
(1) The requirements of subdivision (b) and (c) of Section 2081
are satisfied as to the species for which take is authorized.
(2) The take authorization provides for the development and
implementation, in cooperation with federal and state agencies, of an
adaptive management process for monitoring the effectiveness of, and
adjusting as necessary, the measures to minimize and fully mitigate
the impacts of the authorized take. The adjusted measures are
subject to Section 2052.1.
(3) The take authorization provides for the development and
implementation in cooperation with state and federal agencies of an
adaptive management process that substantially contributes to the
long-term conservation of the species for which take is authorized.
Preparation of the adaptive management program and implementation of
the program is the responsibility of the department. The department'
s obligation to prepare and implement the adaptive management program
is conditioned upon the availability of funds pursuant to the Water
Security, Clean Drinking Water, Coastal and Beach Protection Act of
2002, if it is approved by the voters at the statewide general
election to be held November 5, 2002 (Proposition 50), or other funds
that may be appropriated by the Legislature or approved by the
voters for that purpose. The failure to appropriate funds does not
relieve the applicant of the obligations of paragraphs (1) and (2).
However, the applicant shall not be required to fund any program
pursuant to this paragraph.
(4) The requirements of paragraph (1) may be satisfied if the take
is authorized under Chapter 10 (commencing with Section 2800).
(e) (1) The Secretary of the Resources Agency, in consultation
with the department, the Department of Water Resources, the Salton
Sea Authority, appropriate air quality districts, and the Salton Sea
Advisory Committee, shall undertake a restoration study to determine
a preferred alternative for the restoration of the Salton Sea
ecosystem and the protection of wildlife dependent on that ecosystem.
The Secretary of the Resources Agency shall extend an invitation to
the United States Geological Survey Salton Sea Science Office to
also participate in the restoration study, and the office may
participate if it accepts the invitation. The restoration study
shall be conducted pursuant to a process with deadlines for release
of the report and programmatic environmental documents established by
the secretary, in consultation with the department, the Department
of Water Resources, the Salton Sea Authority, and the Salton Sea
Advisory Committee, and the United States Geological Survey Salton
Sea Science Office, if it is a participant. The secretary shall use
all available authority to enter into a memorandum of understanding
(MOU) with the Secretary of the Interior, as provided in Section 101
(b)(1)(B)(i) of the Salton Sea Reclamation Act of 1998 (P.L. 105-372)
for the purpose of obtaining federal participation in the
restoration of the Salton Sea.
(2) The restoration study shall establish all of the following:
(A) An evaluation of alternatives for the restoration of the
Salton Sea that includes consideration of strategies for salinity
control, habitation creation and restoration, and different shoreline
elevations and surface area configurations. The alternatives shall
consider the range of possible inflow conditions. The evaluation
established pursuant to this subparagraph shall also include
suggested criteria for selecting and evaluating alternatives
consistent with Chapter 13 (commencing with Section 2930), including,
but not limited to, at least one most cost-effective, technically
(B) An evaluation of the magnitude and practicability of costs of
construction, operation, and maintenance of each alternative
(C) A recommended plan for the use or transfer of water provided
by paragraph (2) of subdivision (c). No water may be transferred
pursuant to that subdivision unless the secretary finds that transfer
is consistent with the preferred alternative for Salton Sea
(D) The selection of a preferred alternative consistent with
Section 2931, including a proposed funding plan to implement the
preferred alternative. The proposed funding plan shall include a
determination of the moneys that are, or may be, available to
construct and operate the preferred project, including, but not
limited to, all of the following moneys:
(i) Moneys in the Salton Sea Restoration Fund established by
(ii) State water and environmental bond moneys.
(iii) Federal authorizations and appropriations.
(iv) Moneys available through a Salton Sea Infrastructure
Financing District established pursuant to Section 53395.9 of the
Government Code and local assessments by the Salton Sea Authority or
its member agencies.
(v) Moneys derived from user or other fees.
(3) The study identifying the preferred alternative shall be
submitted to the Legislature on or before December 31, 2006.
(4) The Secretary of the Resources Agency shall establish an
advisory committee for purposes of this subdivision as follows:
(A) The advisory committee shall be selected to provide balanced
representation of the following interests:
(ii) Local governments.
(iii) Conservation groups.
(iv) Tribal governments.
(v) Recreational users.
(vi) Water agencies.
(vii) Air pollution control districts.
(viii) Geothermal energy development.
(B) Appropriate federal agency representatives may be asked to
serve in an ex officio capacity.
(C) The Resources Agency shall consult with the advisory committee
throughout all stages of the alternative selection process.
(D) The advisory committee shall meet no fewer than six times
(E) The secretary shall appoint a vice chair of the advisory
committee from the committee membership. The vice chair shall work
with the secretary to develop advisory committee agendas and to
schedule meetings of the committee. The secretary and vice chair
shall appoint an agenda subcommittee to assist in the preparation of
advisory committee agendas.
(F) The advisory committee shall submit to the Resources Agency
recommendations to assist the agency in preparation of its
restoration plan. The Resources Agency shall develop a schedule for
the completion of these recommendations to ensure that these
recommendations will be considered by the agency in a timely and
meaningful manner as the restoration plan is developed. These
recommendations may include, but are not limited to:
(i) The specific goals and objectives of the restoration plan.
(ii) The range of alternative restoration actions that must be
developed and analyzed.
(iii) The no action alternative.
(iv) The criteria for determining economic and technical
feasibility of the alternatives.
(v) The range of options for funding the restoration plan.
(vi) The selection of a preferred alternative for a restoration
(G) The Resources Agency shall periodically provide an update to
the advisory committee of the current work plan and schedule for the
development of the restoration plan.
(f) This section shall not be construed to exempt from any other
provision of law the Quantification Settlement Agreement and the
Agreement for Transfer of Conserved Water by and between the Imperial
Irrigation District and the San Diego County Water Authority, dated
April 29, 1998.
2081.8. The Resources Agency shall undertake the necessary
activities to assess the protection of recreational opportunities,
including, but not limited to, hunting, fishing, boating, and
birdwatching, and the creation of opportunities for improved local
economic conditions, surrounding the Salton Sea. The Resources
Agency shall not undertake any of those activities if the agency
determines they would constitute a project purpose for environmental
documentation that is prepared pursuant to Section 2081.7.
2082. This chapter does not prohibit the sale of any endangered
species or threatened species, or any part or product thereof, when
the owner can demonstrate that the species, or part or product
thereof, was in the person's possession before the date upon which
the commission listed the species as an endangered species or
threatened species or as an endangered animal or rare animal prior to
January 1, 1985, and shall not prohibit the sale of that part or
product by an individual not normally engaged in that sale if it was
originally possessed by the seller for the seller's own use and so
used by that seller. However, it shall be unlawful to sell any
species, or part or product thereof, if that sale would have been
unlawful prior to the date upon which the commission added the
species to the listing of endangered species or threatened species or
to the listing of endangered animals or rare animals prior to
January 1, 1985.
2083. This chapter does not apply to the taking of fish otherwise
authorized pursuant to Part 3 (commencing with Section 7600) of
Division 6 or to the possession of individual animals which were
lawfully possessed before the commission listed the species as an
endangered species or as a threatened species or as an endangered
animal or rare animal prior to January 1, 1985.
2084. The commission may authorize, subject to terms and conditions
it prescribes, the taking of any candidate species, or the taking of
any fish by hook and line for sport that is listed as an endangered,
threatened, or candidate species.
2085. The provisions of this article shall apply to any species
designated as a candidate species under Section 2074.2 if notice has
been given pursuant to Section 2074.4.