BILL ANALYSIS                                                                                                                                                                                                    Ó





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          |                                                                 |
          |         SENATE COMMITTEE ON NATURAL RESOURCES AND WATER         |
          |                   Senator Fran Pavley, Chair                    |
          |                    2011-2012 Regular Session                    |
          |                                                                 |
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          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.
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          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 
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                    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] 
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          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 
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          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
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