BILL ANALYSIS
AB 1189
Page 1
Date of Hearing: April 27, 2009
ASSEMBLY COMMITTEE ON TRANSPORTATION
Mike Eng, Chair
AB 1189 (Skinner) - As Amended: April 13, 2009
SUBJECT : California Department of Transportation: Fish Passage
Barriers
SUMMARY : Requires the California Department of Transportation
(Caltrans) to assess and remediate fish barriers associated with
any state or federally funded transportation project, including
repairs, retrofits, alterations, maintenance and construction,
if the project affects a stream crossing on a stream where
anadromous fish are or historically were found. Specifically,
this bill :
1)Requires Caltrans to assess potential fish passage barriers
prior to commencing project design for any project using state
or federal transportation funds, if the project affects a
stream crossing on a stream where anadromous fish are or were
historically found. Requires Caltrans to use the Department
of Fish and Game's (DFG's) assessment protocol and to include
the status of each barrier, including whether it is a partial,
total, or temporal barrier, to submit the results of the
assessment to DFG, and to add them to the California Fish
Passage Assessment Database.
2)Requires Caltrans to remediate any fish passage barriers
associated with any project using state or federal funds, as
specified, and requires that remediation be part of the
project design and programmed into the State Transportation
Improvement Program (STIP) or the State Highway Operation and
Protection Program (SHOPP). Requires remediation plans to be
developed in consultation with DFG. Requires Caltrans to
provide notice to DFG of each remediated barrier and to
include a description of each remediated project on the
California Fish Passage Assessment Database no less than 30
days after completion of the project.
3)Defines "project" for these purposes to include any
construction action that is state or federally funded,
including new construction, rehabilitations, repairs,
retrofits, alterations or maintenance projects eligible under
funding through either the STIP or SHOPP.
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4)Defines "barrier" for these purposes to mean a complete,
partial, or temporal obstruction or impediment to fish
passage, including physical conditions associated with
infrastructure that may impede passage.
5)Requires Caltrans to provide notice to DFG at least six months
prior to initiating design of any project using state or
federal transportation funds and to post this notice in a
conspicuous location on its website.
6)Requires Caltrans' annual report required by existing law on
the status of its progress in locating, assessing and
remediating fish barriers, to include the precise location of
past, current, or future remediation projects and a schedule
for the remediation of existing fish barriers identified.
7)Requires Caltrans and DFG by July 1, 2010, to jointly identify
and annually update thereafter high-priority fish barriers in
each district, and requires Caltrans to post a list of these
priorities on its website.
8)Requires Caltrans to remediate fish barriers using any federal
funds received pursuant to the federal American Recovery and
Reinvestment Act of 2009 to the extent permitted under federal
law.
EXISTING LAW :
1)Provides that Caltrans has possession and control over all
state highways, including over 50,000 lane miles of highways,
12,500 bridges, and about 205,000 culverts. Currently, local,
state, and federal transportation funds are allocated to
projects that are selected by Caltrans and by local and
regional transportation entities. Basically, projects for the
maintenance, rehabilitation, and construction of state and
regional projects are programmed in the STIP and SHOPP.
Capital improvements programmed in the SHOPP are limited to
maintenance, safety, and rehabilitation of the transportation
infrastructure projects that do not expand the highway system
capacity. STIP projects generally include, but are not
limited to, improving state highways, local roads, public
transit (including buses), intercity rail, pedestrian and
bicycle facilities, grade separations, transportation system
management, transportation demand management, soundwalls,
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intermodal facilities, and safety.
2)Authorizes DFG to divide areas of the state into districts or
wildlife management areas, for purposes of regulating,
monitoring, and restricting hunting or fishing in those areas.
3)Provides that, under Section 5901 of the Fish and Game Code,
it is unlawful to construct or maintain in a stream any device
that prevents or impedes the passage of migratory fish in
certain districts as defined by DFG. Makes it unlawful to
construct or maintain in any stream in specified fish and game
districts any device or contrivance that prevents or impedes
fish passage.
4)Requires Caltrans, for any project using state or federal
transportation funds programmed after January 1, 2006 that
affects an anadromous fish stream crossing, to assess
potential barriers to fish passage prior to commencing project
design, and to design remediation of any structural barrier to
fish passage that exists into the project. Requires that all
new projects be constructed so that they do not present a
barrier to fish passage.
5)Requires Caltrans to perform an assessment for potential fish
barriers for any repair project using state or federal
transportation funds that affects an anadromous fish stream
crossing and to submit the assessment to DFG.
6)Requires Caltrans to file an annual report with the
Legislature describing the status of Caltrans' progress in
locating, assessing, and remediating fish barriers.
FISCAL EFFECT : Unknown costs, potentially significant, to
Caltrans to assess and remediate fish barriers. Unknown costs
to DFG to prioritize all fish barriers throughout the state.
COMMENTS : This bill would expand existing law, SB 857 (Kuehl)
Chapter 589, Statutes of 2005, by providing additional fish
barrier remediation requirements. That bill required Caltrans,
for any project using state or federal transportation funds
after January 1, 2006, to assess and remediate structural
barriers to fish passage at stream crossings that prevent salmon
and steelhead from accessing habitat. Further, under SB 857,
new projects must be designed to prevent such barriers. The law
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also requires Caltrans to report to the Legislature on its
progress in assessing and remediating fish barriers. Since SB
857 was enacted, Caltrans has remediated only 13 barriers and
plans to remediate only two this year. At this rate, it will
take Caltrans about 465 years to remediate the estimated 2,000
barriers along the coast. Due to limited data, the exact number
of Caltrans fish barriers in the state is unknown. There are
close to 10,000 stream crossings at sites owned or managed by
Caltrans, including 3,600 along the coast. Of all fish barriers
statewide, Caltrans is likely the single largest owner, and owns
or operates approximately 2,000 culverts along the coast. Of
the sites surveyed by Caltrans in the North Coast, 60% blocked
access to migrating fish, including salmon.
The reasons for the slow progress include the fact that Caltrans
only remediates fish barriers when they are associated with a
priority transportation project. The existing law also lacks
clarity as to the types of projects for which fish barrier
remediation is required. In addition, the barrier assessments
conducted by Caltrans are generally only reconnaissance level
surveys, and do not include details on the status of the
barriers. The lack of detailed information contained in the
reports filed by Caltrans have made it difficult for the
Legislature to evaluate the progress Caltrans has made on
assessments, and the actual status of barrier remediation
projects. At an April 23, 2009 hearing of the Legislature's
Joint Fisheries and Aquaculture Committee, Caltrans testified
that it redefines or reprioritizes transportation projects that
are found to require remediation of fish barriers to avoid the
added costs of remediating the barrier. This has further
delayed implementation of state public policy to remediate fish
barriers.
This bill seeks to address these problems by clarifying the
types of projects for which Caltrans shall be required to
remediate fish barriers affecting stream crossings on anadromous
fish streams. This bill also requires improvements and added
specificity in the annual report filed by Caltrans, so the
Legislature can better evaluate the progress made, and requires
Caltrans and DFG to work together in identifying high-priority
barriers for fisheries restoration.
California's salmon runs are in crisis, with several populations
at record lows, numerous species threatened with extinction, and
commercial and recreational salmon seasons expected to be closed
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again this year for the second year in a row. Some of the
factors contributing to the decline are complicated to solve and
may cost billions of dollars and take many years, including, for
example, restoration of the San Joaquin River, restoration of
the Delta, and removal of dams on the Klamath River. In
comparison, there are hundreds of smaller fish barriers in
California at Caltrans stream crossings that could be remediated
in a relatively shorter period of time, many at comparatively
lower cost, while still providing the transportation function
and opening up miles of critical salmon habitat.
Arguments in Support :
1)The County of Sonoma notes this bill will strengthen the
provisions of SB 857 by requiring enhanced reporting of fish
passage barrier locations and remediation schedules. They
also note that Caltrans barriers often occur downstream from
county-owned barriers, limiting the effectiveness of county
efforts to remove or modify fish barriers on county roads.
Other supporters note this bill provides greater oversight and
transparency on remediation of fish barriers.
2)Implementation of fish passage improvement projects on the
state highway system has the potential to pull anadromous fish
from the brink of extinction and restore historic populations
of these fish in coastal streams.
3)The Washington Department of Transportation has completed an
inventory of anadromous fish bearing streams and has committed
to upgrade culverts to accommodate fish passage when
maintenance or reconstruction work is needed. In addition,
Oregon and Idaho each support research programs to provide
policy makers with reliable data that allows effective
expenditures for the maintenance and remediation for fish
passage improvements.
Arguments Against :
1)This bill broadens the scope of assessments and remediation on
the state highway system to possibly include routine
maintenance projects. By using this broad definition, some
maintenance construction work eligible for funding through the
SHOPP but generally not funded out of it would require a full
survey and assessment and, potentially, remediation which
could include costly upgrades and/or facility replacement.
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Specifically, by including routine maintenance projects and
other repairs, this bill would require Caltrans to conduct
remediation on state highway system streams crossings where
migratory fish are, or were historically present.
Accordingly, there could possibly be significant costs to
Caltrans in meeting these requirements. Additionally, this
bill could slow and/or halt all maintenance and repair work
activities on the state highway system including emergency
repairs.
2)This bill singles out Caltrans, creating remediation
requirements that are beyond those required for other
landowners or facility operators (such as other state, local,
and federal agencies) whose facilities present an equal or
greater threat to migratory fish passage.
3)Given current budget considerations and SHOPP funding
shortfall, specifically the lack of transportation funding
necessary to complete important safety and maintenance
projects, Caltrans could be hard pressed to commit funds
necessary to remediate all barriers on the state highway
system unless the work is part of a larger transportation-need
based project. In the absence of a transportation improvement
project whereby a problem fish passageway would be identified
and remediated, the mandate to improve fish migration, aside
from transportation need, should fall within the purview of
the California Resources Agency, specifically DFG.
4)Detractors could contend that Caltrans would be required to
expend substantial amounts of taxpayer money remediating
barriers under bridges and that those monies would be wasted
unless downstream barriers outside the state highway system
are also remediated.
Suggested Committee Amendments :
On page 3, line 15, delete "eligible" and replace with the
following: programmed for funding
On page 3, line 16, delete "and" and replace with: or
On page 5, after line 40, add the following: (3) The
department shall prioritize transportation projects that
complement planned or active streambed remediation or
restoration efforts, based upon streambed restoration needs as
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prioritized by the Department of Fish and Game.
On page 6, line 1, change "(3)" to: (4)
Double-referred : This bill was previously heard in the Assembly
Committee on Water Parks & Wildlife. The bill passed out on a
9-3 vote.
REGISTERED SUPPORT / OPPOSITION :
Support
California Trout
County of Sonoma
East Bay Municipal Utility District
Fishery Network of Central California Coastal Counties (Fish Net
4C)
Five Counties Salmonid Conservation Program (5C)
Trout Unlimited
Opposition
None on file
Analysis Prepared by : Ed Imai / TRANS. / (916) 319-2093