BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1973
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          Date of Hearing:   April 10, 2012

                   ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
                                Jared Huffman, Chair
                 AB 1973 (Olsen) - As Introduced:  February 23, 2012
           
          SUBJECT  :   Fully Protected Species: Ferguson Slide Permanent 
          Restoration Project

           SUMMARY  :   Authorizes the Department of Fish and Game (DFG) to 
          authorize the taking of two fully protected species, the 
          ring-tailed cat and the limestone salamander, resulting from the 
          Department of Transportation's (CalTrans) implementation of a 
          rockslide road restoration project in Mariposa County.  
          Specifically,  this bill  :

          1)Provides that notwithstanding California laws prohibiting take 
            of fully protected species, DFG may authorize the incidental 
            take of limestone salamanders and ring-tailed cats resulting 
            from impacts attributable to CalTrans' implementation of the 
            Ferguson Slide Permanent Restoration Project on State Route 
            140 (SR 140), as described, contingent on the following 
            conditions:

               a)     CalTrans begins construction on or before January 1, 
                 2016;

               b)     DFG determines that CalTrans will adopt appropriate 
                 avoidance and mitigation measures to protect the 
                 limestone salamander through enforceable commitments that 
                 at a minimum include:
                    i.          A construction window that prevents 
                      ground-disturbing activities on the southern slope 
                      during the salamander's active season of December to 
                      March;
                    ii.         Environmentally sensitive area fencing and 
                      salamander protection exclusionary fencing, as 
                      described, will be erected if construction-related 
                      activities will occur adjacent to limestone 
                      salamander habitat during their active season;
                    iii.        A biological monitor will be onsite during 
                      active building to inspect the worksite and all 
                      exclusionary fencing;
                    iv.         All ground-disturbing activities within 
                      100 feet will cease if a limestone salamander is 








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                      detected in an active construction site until the 
                      animal can be safely removed from the area according 
                      to an agreed-upon salvage plan.
                     
               c)     DFG determines that CalTrans will adopt appropriate 
                 avoidance and mitigation measures to protect the 
                 ring-tailed cat through enforceable commitments that at a 
                 minimum include:
                    i.          If ground disturbance occurs during the 
                      ring-tailed cat reproductive season of March to 
                      August a qualified biologist will conduct a field 
                      identification survey for active dens, and, if an 
                      active den is located, construction activities 
                      within 150 feet of the den will be stopped 
                      temporarily and DFG consulted as to how to protect 
                      the den;
                    ii.         A biological monitor will be present 
                      onsite during active building;
                    iii.        If a ring-tail cat is detected in an 
                      active construction site, all ground-disturbing 
                      activities will cease within 150 feet of the den 
                      until the animal can be safely removed from the 
                      area.

               d)     All of the following conditions are met:
                    i.          The requirements of specified provisions 
                      of the California Endangered Species Act (CESA) are 
                      met, including minimization and full mitigation of 
                      any authorized take, and determination by DFG that 
                      issuance of the permit will not jeopardize the 
                      continued existence of the species.
                    ii.         The take authorization provides for 
                      development and implementation, in  consultation 
                      with DFG, of an adaptive management process for 
                      monitoring and adjustments as necessary;
                    iii.        Failure to appropriate funds does not 
                      relieve the applicant of these obligations;
                    iv.         Any observations of the species in the 
                      worksite, and any accidental injury or mortality 
                      from vehicle strikes or other means are reported to 
                      DFG immediately and the onsite biological monitor 
                      will notify the resident engineer who will halt work 
                      immediately.
                    v.          The applicable CESA requirements may be 
                      satisfied if the take is authorized pursuant to the 








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                      Natural Community Conservation Planning Act (NCCP).

          1)Clarifies that this bill does not exempt the Ferguson Slide 
            Permanent Restoration Project from any other law.  

           EXISTING LAW  :

          1)Prohibits the taking or possession of any species that is 
            listed as protected under California's Fully Protected Species 
            statutes.  The limestone salamander and the ring-tailed cat 
            are among the species listed as fully protected.  Prohibits 
            the issuance of any permits or licenses to take any fully 
            protected species, with three exceptions.  Exceptions include: 
            for scientific research; for certain activities related to the 
            Salton Sea and the Quantification Settlement Agreement; and 
            when the species is covered by an NCCP.  

          2)Authorizes DFG at the time of approval of an NCCP to authorize 
            by permit the taking of a fully protected species if it is a 
            covered species whose conservation and management is provided 
            for in the NCCP.   

          3)Prohibits the taking of any species that is listed as 
            endangered or threatened under the California Endangered 
            Species Act (CESA) or the federal Endangered Species Act 
            (ESA).  Allows for the incidental take of such species 
            pursuant to a state or federal incidental take statement or 
            incidental take permit if certain conditions are met, 
            including that the authorized take is minimized and fully 
            mitigated, and the issuance of the permit will not jeopardize 
            the continued existence of the species.   

           FISCAL EFFECT  :   Unknown

           COMMENTS  :  The author indicates this bill, which provides DFG 
          authority to issue an incidental take permit for two fully 
          protected species, is necessary for CalTrans to proceed with 
          permanent restoration of two-lane access on SR 140 in Mariposa 
          County through the Ferguson slide area.  SR 140 provides one of 
          the main access routes into Yosemite National Park.  On April 
          29, 2006 a rockslide at Ferguson Ridge caused the road to close. 
           Two bridges built by CalTrans are providing temporary access 
          for small and large vehicles but are not intended to serve as a 
          permanent solution.  CalTrans completed a draft Environmental 
          Impact Report (DEIR) which looked at several alternatives, some 








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          but not all of which would potentially impact two fully 
          protected species - the ring-tailed cat and the limestone 
          salamander.  CalTrans maintains that if construction begins 
          without an incidental take permit, and take of either species 
          occurs, it would shut down the reconstruction project and put 
          CalTrans at risk of lawsuits unless permits authorizing 
          incidental take are in place when construction begins.  The 
          author asserts this bill will allow reconstruction and 
          restoration of SR 140 to occur pursuant to an incidental take 
          permit, while still requiring steps be taken to minimize the 
          take and provide mitigation. The author also notes that in 
          addition to providing one of the main access routes to Yosemite 
          National Park, reconstruction of SR 140 is essential to the 
          health and stability of Mariposa County's economy.  The Mariposa 
          County Fire Department also notes that SR 140 to Mariposa is an 
          emergency service and evacuation route for residents of the 
          community of El Portal.  The United States Department of the 
          Interior notes that SR 140 is the only all-weather highway to 
          and from Yosemite Valley and a major corridor for National Park 
          Service and concession staff.

          Six different alternatives were considered for restoration of 
          the highway.  The six alternatives include different 
          realignments of the highway, a bridge over the Merced River with 
          column supports, construction of a rock shed structure through 
          the slide material at the existing alignment, and construction 
          of a tunnel under the slide material. In addition to potential 
          impacts on fully protected species, there are issues of concern 
          with regard to potential impact on the Wild and Scenic River 
          designation of the Merced River which SR 140 borders. According 
          to correspondence from CalTrans and DFG, only two of the six 
          alternatives under consideration would impact the limestone 
          salamander which is the species of greater concern due to its 
          extremely limited range.  The other alternatives do not impact 
          the limestone salamander but, according to CalTrans staff, may 
          impact the Wild and Scenic River designation.

          Fully Protected Species Law.   California's fully protected 
          species statutes predate the enactment of the state and federal 
          endangered species laws, and was the state's initial effort to 
          identify and protect those animals that were rare or faced 
          possible extinction.  Many of the species on the fully protected 
          species lists have subsequently been listed under the federal or 
          state endangered species acts, however, the ringtail cat is one 
          of the exceptions that has not.  Unlike the state and federal 








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          endangered species acts, California's fully protected species 
          statutes do not allow for issuance of incidental take permits 
          but instead require total avoidance of take.  Some exceptions to 
          this prohibition have been enacted.  Most notably, last year the 
          Legislature enacted SB 618 (Wolk), Chapter 596, Statutes of 
          2011, which allows a permit to be issued for incidental take of 
          a fully protected species as part of an NCCP if the species is a 
          covered species whose conservation and management is provided 
          for under the NCCP.

          Status of the Limestone Salamander and Ring-tailed Cat.  The 
          limestone salamander, Hydromantes brunus, in addition to its 
          status as a fully protected species, has been listed as a 
          threatened species under CESA since 1971.  The species is 
          threatened with extinction due to, among other things, it's 
          extremely limited range.  The limestone salamander exists only 
          in the Merced River Canyon in the vicinity of Briceburg and 
          along Bear Creek, a tributary to the Merced River.  It has also 
          been found in Hell Hollow, at the confluence of Hell Hollow 
          Creek and Lake McClure.  It inhabits mossy limestone crevices 
          and talus in the pine-oak woodlands of lower Merced Canyon and 
          is not known to exist anywhere else in the world.  Its 
          population status is unknown.  DFG's Limestone Salamander 
          Ecological Reserve in Mariposa County protects 120 acres of 
          limestone salamander habitat and the Bureau of Land Management 
          has designated 1,600 acres as the Limestone Salamander Area of 
          Critical Environmental Concern, which includes both confirmed 
          and potential limestone salamander habitat.

          The ring-tailed cat, Bassariscus astutus, also known as the 
          Ringtail, is a small raccoon-like nocturnal animal that occurs 
          in riparian forests and shrub habitats.  A report prepared for 
          DFG in 1985 indicated that the species was found throughout most 
          of California, that urbanization and loss of riparian 
          communities in California had depleted and extirpated some 
          populations, but that there was no evidence at that time of 
          threats over a broad area.  DFG information from 2005 indicates 
          little information is available on distribution and relative 
          abundance among habitats, but it is not considered to be 
          threatened with extinction at the present time.        

          Is an incidental take permit necessary for a permanent 
          restoration project to go forward? Whether a take permit for 
          either or both species is necessary for a permanent restoration 
          project to go forward is not entirely clear.  DFG, in comments 








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          submitted to CalTrans in 2011, did not indicate that the project 
          could not go forward without an incidental take permit for fully 
          protected species.  Rather, they advised that the DEIR should 
          evaluate and address all potential project-related impacts, and 
          include appropriate species-specific avoidance and minimization 
          measures.  The DFG also stated that the proposed mitigation 
          measures in the DEIR were not specific enough to be effective in 
          demonstrating to DFG that take would not occur.  They then went 
          on to provide recommendations on the types of total avoidance 
          and minimization measures that could be included, much of which 
          have been included as minimum conditions for the take permit 
          that would be authorized by this bill.  Moreover, it appears 
          based on subsequent discussions with DFG that take of 
          ring-tailed cats could be prevented through implementation and 
          inclusion in the final EIR of the species-specific avoidance and 
          minimization measures recommended by the DFG, making a take 
          permit for that species unnecessary.  The species of greater 
          concern, and the one more difficult to avoid take of is the 
          limestone salamander due to its limited range and threatened 
          status. 

          The two alternatives DFG identified as of greatest impact to 
          limestone salamander are alternatives that do not cross the 
          river and would require disturbance of known limestone 
          salamander habitat on either side of the rock slide.  According 
          to DFG, these two alternatives also increase the risk of 
          destabilizing the rock slide and possibly leading to further 
          slides in the future.  CalTrans has indicated that the other 
          alternatives impact the Wild and Scenic river designation of the 
          Merced River, since they would involve construction of bridges 
          over the river.  Whether or not impacts to the Wild and Scenic 
          River designation could be mitigated is unknown.

          The Fully Protected Species laws have a mixed record of 
          enforcement.  One of the primary reasons for Caltrans' desire to 
          seek an incidental take permit appears to be the desire to avoid 
          potential litigation should take of a fully protected species 
          occur despite implementation of species-specific avoidance and 
          minimization measures approved by DFG.  While the fully 
          protected species laws set a high standard prohibiting take of 
          fully protected species, the laws have been in effect for over 
          40 years and committee staff is unaware that during that time 
          very many projects have been halted as a result of the law.  In 
          fact, many other projects in California over the past 40 years 
          with potential impacts to fully protected species have been 








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          approved and constructed without a fully protected species take 
          permit.  Such projects include but are not limited to wind 
          energy projects that impact fully protected species such as 
          golden eagles and peregrine falcons.  Either the statutes have 
          not been enforced, allowing the take to occur, or the projects 
          in some instances have been able to incorporate avoidance and 
          minimization measures to address take issues.  Fully protected 
          species concerns have also been an issue in the siting of desert 
          renewable projects.  However, those concerns appear to have been 
          addressed through the NCCP process and implementation of 
          avoidance and minimization measures.  In any case, there does 
          not appear to have been much litigation over the fully protected 
          species laws, although it may nevertheless be reasonable to 
          assume some risk of litigation exists.

          Are single project exemptions from environmental laws good 
          public policy?  As noted above, the Legislature recently enacted 
          a broader exemption to the fully protected species statutes for 
          species covered under an NCCP.  That exemption aims to achieve 
          the objective of species recovery and conservation while also 
          allowing development projects that are compatible with the NCCP 
          to move forward. The committee may wish to consider whether 
          granting a single project exemption as proposed in this bill is 
          a good precedent for public policy.

          Suggested Amendments:   If the committee desires to approve this 
          bill, staff recommends that amendments be adopted that would 
          require additional steps be taken by the project proponent to 
          provide for mitigation and conservation of the limestone 
          salamander, as a condition of receiving a take permit allowing a 
          permanent highway restoration project to go forward.  The 
          Legislature last year, in SB 618, approved an amendment to the 
          NCCP statute that allows take of fully protected species to be 
          approved where the species are covered under an NCCP that 
          provides for conservation of the species.  While an NCCP may not 
          necessarily be a practical solution for all projects, including 
          projects like SR 140 since Mariposa County is not currently 
          participating in an NCCP, the conservation standard required 
          under the NCCP statute could nevertheless be applied to this 
          project.  Such an amendment would require additional mitigation 
          to be taken to provide for conservation of the species within 
          the permit area, but without requiring an actual NCCP.   To do 
          this, a new subsection (B) could be added on page 4, requiring 
          that further measures approved by DFG be incorporated into the 
          project plan that meet the conservation standard of an NCCP.  








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          Such an amendment would be consistent with the other prior 
          exemptions granted by the Legislature for the Salton Sea 
          Quantification Settlement Agreement and for projects covered by 
          an NCCP.

          In addition, since avoidance and minimization measures can be 
          incorporated into the project to avoid take of ring-tailed cat, 
          making an incidental take permit unnecessary, it is recommended 
          that this bill be amended to delete references to the 
          ring-tailed cat, and also to strike references to exemptions 
          under Section 2800 since that is already allowed under existing 
          law.     

           Arguments in Support  :  The Mariposa County Board of Supervisors 
          adopted a resolution supporting this bill which finds that the 
          restoration of SR 140 is critical to the economic wellbeing of 
          Mariposa County citizens.  The Regional Council of Rural 
          Counties believes an exception allowing take of the species 
          should be approved so that planning for a permanent highway 
          reconstruction can move forward and impacts can be minimized to 
          the species, noting the importance of the project for Mariposa 
          County, neighboring counties and the millions of visitors to 
          Yosemite.

           Arguments in Opposition  :  Opponents oppose this bill unless 
          amended to allow for the take of limestone salamander only if 
          DFG first determines that issuance of an incidental take permit 
          will meet the conservation standard of the NCCP Act.  They note 
          that exceptions to the Fully Protected Species statutes granted 
          by the Legislature in the past have allowed take only when 
          either the action is in furtherance of recovery of a protected 
          species, or the project in need of a take permit meets the 
          conservation or recovery standard of an NCCP.  They also 
          recommend that the references to ring-tailed cat in the bill be 
          deleted since the take of ring-tailed cats can be avoided 
          through implementation of avoidance measures making a take 
          permit unnecessary.  Finally, they make other technical 
          suggestions such as placing the amendment allowing a take permit 
          for this project in the NCCP Act rather than in CESA.   

           REGISTERED SUPPORT / OPPOSITION  :   

           Support                         Opposition (Unless Amended)  
          Mariposa County (sponsor)          Defenders of Wildlife 
          Regional Council of Rural Counties Sierra Club of California 








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                                             Friends of the River
                                             California Coastal Protection 
          Network
                                             Endangered Habitats League

           Analysis Prepared by  :    Diane Colborn / W., P. & W. / (916) 
          319-2096