BILL ANALYSIS Ó AB 1973 Page 1 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 AB 1973 Page 2 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 AB 1973 Page 3 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 AB 1973 Page 4 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 AB 1973 Page 5 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 AB 1973 Page 6 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 AB 1973 Page 7 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. AB 1973 Page 8 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 AB 1973 Page 9 Friends of the River California Coastal Protection Network Endangered Habitats League Analysis Prepared by : Diane Colborn / W., P. & W. / (916) 319-2096