Amended in Assembly May 23, 2014

Amended in Assembly April 2, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2193

Introduced by Assembly Member Gordon

February 20, 2014

An act to add Chapter 6.5 (commencing with Section 1650) to Division 2 of the Fish and Game Code, relating to fish and wildlife.

LEGISLATIVE COUNSEL’S DIGEST

AB 2193, as amended, Gordon. Habitat Restoration and Enhancement Act.

Existing law establishes the Department of Fish and Wildlife in the Natural Resources Agency, administered by the Director of Fish and Wildlife. Existing law requires the director to administer various programs for the protection and conservation of fish and wildlife resources.

This bill would enact the Habitat Restoration and Enhancement Act and require the director to approve a habitat restoration or enhancement project, as defined, if specified conditions are met as determined by the director. The act would create the Habitat Restoration and Enhancement Fund within the Fish and Game Preservation Fund and authorize the department to enter into an agreement to accept funds to achieve the purposes of the Habitat Restoration and Enhancement Act and deposit those funds into that account. The act would authorize the department to impose a schedule of fees for projects, based on the cost of a project, sufficient to recover all reasonable administrative and implementation costs of the department relating to the begin delete project, but not to exceed fees adopted by the department for standard lake or streambed alteration agreements for projects of comparable cost. end delete begin insert project. end insert Moneys in the account would be available to the department, upon appropriation, for the purposes of administering and implementing the Habitat Restoration and Enhancement Act.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

(a) The Legislature finds and declares all of the
following:

(1) California is home to over 300 animal and plant species
listed as either threatened or endangered by the state and federal
governments. Some of these species’ populations are so low that
recovery actions must be taken immediately to avoid further
population declines or extinctions of the species.

(2) Historic and continued degradation of our state’s ecosystems,
whether in remote areas or in our cities, continues to impact the
habitats of these protected species and other animals and plants.

(3) Recovery of listed species depends largely on significant
improvements in habitat quality and requires numerous habitat
restoration projects statewide.

(4) Tremendous demand exists for small-scale ecosystem
restoration projects aimed to benefit these species, yet current
regulatory mechanisms do not allow many willing private
landowners and local governments to efficiently access the
necessary environmental permits.

(5) Demand for these environmentally beneficial projects far
outpaces the regulatory approval process. As a result, hundreds of
small-scale projects designed to benefit California’s most
vulnerable species and natural habitats are not being implemented.

(6) Expedited and coordinated agency permitting processes for
small-scale restoration projects have been shown to greatly boost
the number and geographic distribution of environmentally
beneficial projects across California - projects that cumulatively
improve water quality and aid in the recovery of salmon and
steelhead populations, migratory birds, and other sensitive species.

(b) It is the intent of the Legislature in enacting this measure to
provide for substantial permitting efficiency and thereby encourage
increased implementation of voluntary, environmentally beneficial,
small-scale habitat restoration projects that do all of the following:

(1) Provide an individual and cumulative net environmental
benefit.

(2) Incorporate measures to protect against any short-term
substantial, or potentially substantial, adverse change in any of the
physical conditions within the area affected by the project.

(3) Follow applicable preexisting state and federal agency
permits, certifications, and exemptions.

SEC. 2.  

Chapter 6.5 (commencing with Section 1650) is added
to Division 2 of the Fish and Game Code, to read:

 

Chapter  6.5. Habitat Restoration and Enhancement
Act

 

1650.  

This chapter shall be known, and may be cited, as the
Habitat Restoration and Enhancement Act.

1651.  

As used in this chapter:

(a) “Fish passage guidelines” means those guidelines specified
in the department’s California Salmonid Stream Habitat Restoration
begin delete Manual, end delete begin insert Manual end insert and the National Marine Fisheries Service,
Southwest Region, Guidelines for Salmonid Passage at Stream
Crossings, and subsequent amendments or updates to either
document.

(b) “Habitat restoration or enhancement project” means a project
with the primary purpose of accomplishing one or more of the
following:

(1) Stream or river bank, lake, or other waterway revegetation,
the primary purpose of which is to improve habitat.

(2) Stream or river bank stabilization with native vegetation or
other predominantly nonrock bioengineering techniques, or both,
to reduce or eliminate erosion and sedimentation.

(3) Modification, replacement, or removal of existing fish
passage barriers to improve water quality and fish passage,
including associated bridge installation. Examples of fish passage
barriers include, but are not limited to, road crossings and fords,
or both; small permanent, flashboard, and seasonal dams; weirs,
sills, and aprons; and poorly designed, undersized, or failed
culverts.

(4) Modifications of existing water diversion infrastructure to
enhance stream flow and improve fish habitat and survival,
including, but not limited to, pump relocation or removal and fish
screen installation, operation, and maintenance, when the project
does not increase total water diversion.

(5) Placement or installation of anchored and unanchored large
wood, rootwads, spawning gravel, and other in-stream habitat
structures or materials that benefit native fish by enhancing habitat,
increasing stream channel complexity, or both.

(6) Sediment source reduction on existing roads, including
outsloping, berm removal, installation of rolling dips, culvert and
drainage upgrades, road decommissioning, and other techniques
designed to improve water quality and habitat for species.

(7) Upland erosion control using bioengineering techniques and
native revegetation for the purpose of improving water or habitat
quality for species.

(8) Control and removal of aquatic and terrestrial invasive plant
species.

(9) Installation of fencing and associated alternative stockwater
supply infrastructure for the purpose of excluding or managing
livestock to protect the bed and banks of streams, or other sensitive
habitats.

(10) Restoration of freshwater and tidal hydrologic functions
in wetlands and estuaries to improve fish and wildlife habitat.

(11) Creation of off-channel habitat to restore historic rearing
and flow refugia for native fisheries and other aquatic species.

(12) Restoration of floodplains to restore natural hydrologic
function, including, but not limited to, levee and dike setback and
breaching.

(13) Restoration and maintenance of existing off-stream ponds,
including spillway repair and sediment removal, to benefit native
amphibian and other species.

(14) Other habitat restoration projects requiring permits from
the department whose primary purpose is to recover listed species,
and are included in a state or federal species recovery plan or other
department-identified habitat and related species recovery actions,
as determined by the director.

(c) “Project proponent” means a person, public agency, or
nonprofit organization seeking to implement a habitat restoration
or enhancement project.

(d) “Species recovery plan” means a guidance document
prepared by a government agency that identifies recovery actions,
based upon the best scientific and commercial data available,
necessary for the protection and recovery of listed species.

1652.  

(a) Notwithstanding any other law, the director shall
approve a habitat restoration or enhancement project if the project
will maintain existing levels of human health and safety protection,
including, but not limited to, flood protection, and meets all of the
following requirements:

(1) The project purpose is voluntary habitat restoration and is
not required as mitigation.

(2) The project is no larger than five acres in size, measured by
calculating the direct area of construction and construction-related
impact.

(3) The project is consistent with, or identified in, one or more
of the following:

(A) Federal- and state-listed species recovery plans or published
protection measures, biological opinions, or previously approved
department agreements and permits.

(B) Department and National Marine Fisheries Service fish
screening criteria or fish passage guidelines.

(C) The department’s California Salmonid Stream Habitat
Restoration Manual.

(D) Scientifically researched studies, guidance documents, and
practice manuals that describe best available habitat restoration or
enhancement methodologies that are utilized or approved by the
department.

(4) The project will not result in cumulative negative
environmental impacts that are significant when viewed in
connection with the effects of past, current, or probable future
projects.

(b) The director’s approval of a habitat restoration or
enhancement project pursuant to subdivision (a) shall be in lieu
of any other permit, agreement, license, or other approval issued
by the department, including, but not limited to, those issued
pursuant to Chapter 1.5 (commencing with Section 2050) of
Division 3, Chapter 10 (commencing with Section 1900) of
Division 2, and Chapter 6 (commencing with Section 1600) of
Division 2.

(c) Nothing in this chapter shall be construed as expanding the
scope of projects requiring a permit, agreement, license, or other
approval issued by the department.

(d) The director’s approval of a habitat restoration or
enhancement project pursuant to subdivision (a) shall constitute
an action taken by a regulatory agency, as authorized by state law,
to ensure the maintenance, restoration, or enhancement of a natural
resource where the regulatory process involves procedures for the
protection of the environment.

(e) Within 60 days after the director receives a written request
to approve a habitat restoration or enhancement project, the director
shall determine whether the written request includes all of the
required information set forth in subdivision (f).

(f) A written request to approve a habitat restoration or
enhancement project shall contain all of the following:

(1) The name, address, title, organization, telephone number,
and email address of the natural person or persons who will be the
main point of contact for the project proponent.

(2) A full description of the habitat restoration and enhancement
project that includes the designs and techniques to be used for the
project, begin delete restoration- end delete begin insert restoration end insert or enhancement methods, an
estimate of temporary restoration or enhancement-related
disturbance, project schedule, anticipated maintenance activities,
and how the project will result in a net benefit to any affected
habitat and species, consistent with paragraph (3) of subdivision
(a).

(3) An assessment of the project area that provides a description
of the existing flora and fauna and the potential presence of
sensitive species or habitat.

(4) A description of the environmental protection measures
incorporated into the project design, including, but not limited to,
measures to avoid and minimize impacts to water quality and
potentially present species protected by state and federal law, such
that no potentially significant negative effects on the environment,
as defined in Section 15382 of Title 14 of the California Code of
Regulations, are likely to occur with the application of the specified
environmental protection measures.

(5) Substantial evidence to support a conclusion that the project
meets the requirements set forth in this section. Substantial
evidence shall include references to relevant design criteria and
environmental protection measures found in the documents
specified in paragraph (3) of subdivision (a).

(g) During project implementation, the project proponent shall
notify the department within seven days of any minor amendments
to the project necessary for improving the project’s habitat
restoration and enhancement outcome or further avoidance of
impacts.

(h) (1) If the director determines at any time that the project is
no longer consistent with subdivision (a), due to a material change
between the project as submitted and the project being implemented
or a change in the environmental circumstances in the area of
implementation, the director shall notify the project proponent in
writing and project implementation shall be suspended. Written
notice from the director shall be delivered in person, by certified
mail, or by electronic communication to the project proponent and
shall specify the reasons why approval of the project was
suspended. The approval for a project shall not be revoked pursuant
to this subdivision unless it has first been suspended pursuant to
this subdivision.

(2) Within 30 days of receipt of a notice of suspension, the
project proponent may file an objection with the director. Any
objection shall be in writing and state the reasons why the project
proponent objects to the suspension. The project proponent may
provide additional environmental protection measures, design
modifications, or other evidence that the project is consistent with
subdivision (a) and request that the notice of suspension should
be lifted and approval granted.

(3) The director shall revoke approval or lift the suspension of
project approval within 30 days after receiving the project
proponent’s objection pursuant to paragraph (2).

1653.  

(a) The Habitat Restoration and Enhancement Account
is hereby created in the Fish and Game Preservation Fund.

(b) The department may enter into an agreement to accept funds
from any public agency, person, business entity, or organization
to achieve the purposes of this chapter. The department shall
deposit any funds so received in the account. The funds received
shall supplement existing resources for projects and programs.

(c) The department may impose a schedule of fees for projects,
based on the cost of a project, sufficient to recover all reasonable
administrative and implementation costs of the department relating
to the begin delete project, but not to exceed fees adopted by the department
pursuant to Chapter 6 (commencing with Section 1600) of Division
2 for standard lake or streambed alteration agreements for projects
of comparable cost. end delete begin insert project. end insert

(d) Moneys in the account shall be available to the department,
upon appropriation by the Legislature, for the purposes of
administering and implementing this chapter.