BILL ANALYSIS Ó ----------------------------------------------------------------- | | | SENATE COMMITTEE ON NATURAL RESOURCES AND WATER | | Senator Fran Pavley, Chair | | 2011-2012 Regular Session | | | ----------------------------------------------------------------- BILL NO: AB 1961 HEARING DATE: June 26, 2012 AUTHOR: Huffman URGENCY: No VERSION: June 19, 2012 CONSULTANT: Katharine Moore DUAL REFERRAL: No FISCAL: Yes SUBJECT: Coho salmon: habitat. BACKGROUND AND EXISTING LAW The Department of Fish and Game (department) is the trustee for fish and wildlife resources in California. The department is administered by the director (Fish and Game Code (FGC) §700). Numerous activities related to fish and wildlife resources require permits from the department. For example, existing law requires that the department issue permits to authorize the direct or indirect "take" of any species listed under the California Endangered Species Act (CESA) (FGC §2050 et seq.) and any action that could affect an endangered or rare native plant (FGC §1900 et seq.). Further, in order to protect and conserve fish and wildlife resources, any activity that will alter a streambed must also obtain a permit from the department (FGC §1600 et seq.). However, while a permit is still required, there is a categorical exemption from further review under the California Environmental Quality Act (CEQA) (Public Resources Code (PRC) §21000 et seq.). for certain small scale projects performed to maintain, restore or enhance natural resources. Coho salmon are native to many northern California coastal streams. Its historic range in California waters is from the Oregon border to as far south as Santa Cruz county. There has been a dramatic drop in coho salmon populations and estimates are that only 1% of the original population - a few thousand fish at best - remain. The species is at risk of extinction. Both distinct "evolutionary significant units" - the Southern Oregon/Northern California Coast and Central California Coast coho salmon - are listed under the federal Endangered Species Act and CESA. Coho in the southern end of the range are endangered, and considered virtually extinct. Coho populations have threatened status farther north. 1 It is state policy to increase the state's salmonid resources (FGC §6900 et seq., for example). Habitat restoration is widely recognized as a critical factor to the restoration of coho and other salmonid species. Coho need appropriate freshwater habitat to survive including cold and clean water, clean gravel for spawning, adequate food, and sufficient and varied stream flow. Habitat restoration includes the placement of large woody debris to increase stream complexity, facilitating fish passage through the redesign of culverts and other structures blocking migration, and restoring eroded or denuded streambanks by re-vegetating stream corridors, among others. The department's Recovery Strategy for Coho Salmon as well as recovery strategies developed by the National Marine Fisheries Service contain these and other recommendations to help restore coho populations. On August 16, 2011, the Joint Legislative Committee on Fisheries and Aquaculture held an oversight hearing titled "Coho on the Brink". In addition to testifying to the dangerously low coho salmon populations and proposed recovery strategies, the department also noted that recovery projects boost economic activity in local communities where they occur. Testimony by the department and others indicated that risks of coho extinction warranted rapid action. PROPOSED LAW This bill would: Establish the Coho Salmon Habitat Enhancement Leading to Preservation Act (the Coho HELP Act) (act) Streamline and expedite the approval process for coho salmon habitat enhancement projects in order to prevent extinction. The habitat projects are limited to areas with an approved coho salmon recovery plan and include modifications of water crossings to remove barriers to fish passage (e.g. replacing culverts), streambank restoration, and wood placement to increase the complexity of stream flow (e.g. placing wood stumps to form pools). Require the director to approve a coho salmon habitat enhancement project if certain conditions are met within 60 days of receiving a complete written request. The project must maintain existing levels of human health and safety protection, flood protection, and meet specified requirements including that the project: o is limited in size (less than 5 acres or 500 linear feet) and length (must be completed within 5 years), o consists primarily of voluntary habitat 2 restoration consistent with existing recovery and fish passage plans, and o will not result in a cumulative negative impact. Provide that the director's approval of the project shall be in lieu of any other permit or license requirement under specified statutes (for example, CESA), and is a regulatory action to ensure the maintenance, restoration or enhancement of a natural resource that includes procedures protective of the environment. Specify that the written request provided to the director for any proposed project include specified materials; such as a project schedule, a map, and an explanation of the project's net benefit to coho salmon recovery, among others. Ensure regulatory oversight and authorize the director to suspend and then revoke a permit issued under the authority of the act if act criteria are no longer met. Authorize the department to adopt emergency regulations to further the implementation of the act. Create the Coho Salmon Recovery Account (account) and authorize the department to enter into agreements to accept funds to achieve the purposes of the act and deposit those funds in the account. These funds shall supplement existing resources. Authorize the department to impose and collect fees to cover its administrative and implementation costs for each project and cap the fee at the amount imposed for lake or streambed alteration agreements. The fees shall be deposited in the account and, upon appropriation, the department can use them to administer and implement the act. Legislative intent language authorizes funding from the Hatchery and Inland Fisheries Fund (HIFF) (FGC §13007) for half-time funding to facilitate project review. Make relevant legislative findings including charging the department to seek agreements and partnerships with state and federal agencies to expedite permitting for habitat enhancement projects to the benefit of the coho. Sunset on January 1, 2018. ARGUMENTS IN SUPPORT According to the author, "despite state and federally adopted recovery plans, stream restoration manuals, and protection under the state and federal endangered species acts, coho salmon continue to be pushed towards extinction. New, focused state policies are needed to promote immediate on-the-ground habitat restoration projects, while also guaranteeing Ýthe department] 3 has sufficient regulatory oversight." The Coho HELP Act authorizes the department to "efficiently and effectively approve specific habitat enhancement projects that are necessary to prevent the extinction of California's coho salmon populations. In doing so, AB 1961 promotes effective collaboration between Ýthe department] and its local public agency and non-profit habitat restoration partners." The Mendocino County Board of Supervisors adds that "unfortunately, while non-profit restoration specialist, local water agencies, resources conservation districts, tribes, landowners, and many others stand by to help with their expertise and financial resources, the need for restoration projects is overwhelming the ability of the state to sanction them. Urgent action is necessary to give the state and its restoration partners new tools to help ensure the efficient approval and implementation of coho habitat restoration projects." ARGUMENTS IN OPPOSITION None received. COMMENTS Act projects are eligible for permit streamlining as small habitat restoration projects . The State Water Resources Control Board (SWRCB) has approved a general water quality certification order for small habitat restoration projects that qualify for a categorical exemption under CEQA for discharges into state waters. The proposed criteria for act projects mirror the requirements of the categorical exemption and act projects should qualify for this exemption. This bill streamlines the department's permitting process but does not alter the SWRCB's. South Fork of the Big River habitat restoration project. Trout Unlimited in collaboration with the Department of Parks and Recreation and a private landowner are developing a habitat restoration project placing large woody debris such as root wads and logs into a 2.1 mile stretch of the South Fork of the Big River in Mendocino County where coho are found. This project is an example of one that would be expedited by AB 1961 should it be chaptered. Is HIFF funding appropriate? HIFF receives 33-1/3% of revenues from all sport fishing licenses sold. HIFF was created as part of the "AB 7" (Cogdill, c. 689, Statutes of 2005) trout fishing stocking program. Currently, HIFF funds may be used to support department programs "related to the management, maintenance, and 4 capital improvement of California's fish hatcheries, the Heritage and Wild Trout Program, and enforcement activities related thereto, and to support other activities eligible to be funded from revenue generated by sport fishing license fees." As noted above, several statutory provisions recognize that habitat restoration and protection is a critical element of the recovery of anadromous fish populations, and the department's overall stewardship responsibilities. Sport fishing license fees are collected and used to pay for "all necessary expenses incurred in carrying out this code and any other laws for the protection and preservation of birds, mammals, reptiles, and fish (FGC §13220). The legislative intent language to provide funding for the position to review act documents falls under the "other activities" provision of HIFF. SUPPORT California Trout (co-sponsor) The Nature Conservancy (co-sponsor) Trout Unlimited (co-sponsor) Big Sur Land Trust California Farm Bureau Federation California Fish and Game Commission The Endangered Species Coalition Golden West Women Flyfishers Humboldt County Board of Supervisors Humboldt Redwood Company, LLC Land Trust of Santa Cruz County Marin Agricultural Land Trust Marin County Board of Supervisors Marin Resource Conservation District Mendocino County Board of Supervisors Mendocino Redwood Company, LLC Monterey Bay Aquarium Northern California/Nevada Council Federation of Fly Fishers Pacific Forest Trust Peninsula Open Space Trust San Mateo County Board of Supervisors City of Santa Cruz Santa Cruz County Board of Supervisors Shasta Valley Resource Conservation District Sonoma County Board of Supervisors Sonoma County Agricultural Preservation and Open Space District Sonoma County Water Agency Sustainable Conservation OPPOSITION None Received 5 6