BILL NUMBER: AB 2193 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 17, 2014
AMENDED IN ASSEMBLY MAY 23, 2014
AMENDED IN ASSEMBLY APRIL 2, 2014
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 Account
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
project. projects, but not to exceed fees adopted by
the department for standard lake or streambed alteration agreements
for projects of comparable cost. Moneys in the account would be
available to the department, upon appropriation,
appropriation by the Legislature, 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)
( 4) 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)
( 5) 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
Manual 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. For
purposes of this paragraph, "seasonal dam" means a dam that is no
larger than 25 feet in height and 50-acre feet in designed
impoundment capacity.
(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,
roads and trails, 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
Excluding or managing livestock to protect the
bed and banks of streams, or other sensitive habitats.
habitats, using wildlife friendly fencing and
associated alternative stockwater supply based upon an existing water
right. For purposes of this paragraph, wildlife-friendly
fencing means fencing that allows for the movement of species
indigenous to the area, including those species that normally migrate
or move through the project area.
(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, revegetation
levee and dike setback and breaching.
(13) Restoration and maintenance
maintenance, including spillway repair and sediment removal, of
an existing off-stream ponds, including spillway
repair and sediment removal, to benefit native amphibian and other
species. pond or a livestock stockpond subject to a
water right obtained pursuant to Article 2.7 (commencing with Section
1228) of Chapter 1 of Part 2 of Division 2 of the Water
Code, to benefit native aquatic species and their habitat.
(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
1652. (a) (1) Before a project proponent submits
a written request to the director pursuant to subdivision (b), the
project proponent may request a meeting with the department to
discuss the project proposal, required information, and the
application process.
(2) If a project proponent requests a meeting pursuant to
paragraph (1), the department shall inform the project proponent
whether any plan would be required to be submitted for the project
pursuant to subdivision (d).
(b) A project proponent may submit a written request to approve a
habitat restoration or enhancement project to the director.
(c) 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, restoration or enhancement methods, an estimate of temporary
restoration- or enhancement-related disturbance, project schedule,
anticipated maintenance activities and how the project is expect to
result in a net benefit to any affected habitat and species,
consistent with paragraph (4) of subdivision (e).
(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, such as appropriate seasonal
work limitations, measures to avoid and minimize impacts to water
quality and potentially present species protected by state and
federal law, and the use of qualified professionals for standard
preconstruction surveys where protected species are potentially
present, so that no potentially significant adverse effects on the
environment, as defined in Section 15382 of Title 14 of the
California Code of Regulations, are likely to occur with 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 (4) of subdivision (e).
(6) Engineering plans of the project if the project proponent
proposes a project to modify an existing levee or dike or if the
project proposes to modify, replace, or remove existing fish passage
barriers.
(7) Engineering or landscape architectural plans, or both,
required by the department pursuant to subdivision (d).
(d) The department may require a project proponent to submit in
the written request the following plans depending on the size and
scope of the project:
(1) Landscape architectural plans or engineering plans, or both,
for a project whose primary purpose is described in paragraph (2) of
subdivision (b) of Section 1651.
(2) Engineering plans for a project whose primary purpose is
described in paragraph (4) of subdivision (b) of Section 1651.
(e) Notwithstanding any other law,
within 60 days after receiving a written request to approve a habitat
restoration or enhancement project, the director shall
approve a habitat restoration or enhancement project if the director
determines that the written request includes all of the required
information set forth in subdivision (c), the project will
maintain existing levels of human health and safety protection,
including, but not limited to, flood protection, and the project
meets all of the following requirements:
(1) The project purpose is voluntary habitat restoration and
the project is not required as mitigation.
(2) The project is not part of a regulatory permit for a
nonhabitat restoration or enhancement construction activity, a
regulatory settlement, a regulatory enforcement action, or a court
order.
(2)
(3) The project is no larger than five acres in size,
measured by calculating the direct area of construction and
construction-related impact. The maximum length of stream that
may be dewatered is 1,000 feet. For purposes of this paragraph, "de
water" means to temporarily remove or divert, or both,
groundwater, standing water, or streamflow to allow for project
construction such that downstream water quality and flows are
maintained.
(3)
(4) The project is consistent with, or identified in,
sources that describe best available restoration and enhancement
methodologies, including one or more of the following:
(A) Federal- and state-listed species recovery plans or published
protection measures, programmatic and individual project
biological opinions, or previously approved department agreements and
permits. permits issued for habitat
restoration or enhancement projects.
(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)
(5) 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.
(f) If the director determines that the written request does not
contain all of the information required by subdivision (c), or fails
to meet the requirements set forth in subdivision (e), or both, the
director shall deny the written request and inform the project
proponent of the reason or reasons for the denial.
(b)
(g) The director's approval of a habitat restoration or
enhancement project pursuant to subdivision (a)
(e) 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)
(h) 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)
(i) The director's approval of a habitat restoration or
enhancement project pursuant to subdivision (a)
(e) 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, restoration 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)
(j) (1) During project
implementation, the project proponent shall notify the department
within seven days 48 hours of any minor
amendments to the project necessary for improving the
project's habitat restoration and enhancement outcome or further
avoidance of impacts. project.
(2) A minor amendment shall not create potentially significant
environmental impacts, trigger other permit requirements, or change
the scope of the project as a whole.
(3) For purposes of this subdivision, "minor amendment" means an
action necessary for improving the project's habitat restoration or
enhancement outcome or for further avoidance of impacts.
(h)
(k) (1) If the director determines at any time that the
project is no longer consistent with subdivision (a),
(e), 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) (e) 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 department administration and
permitting of projects and programs.
programs included in this chapter.
(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 project. projects, 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.
(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.