BILL NUMBER: AB 2193	AMENDED
	BILL TEXT

	AMENDED IN SENATE  AUGUST 22, 2014
	AMENDED IN SENATE  AUGUST 19, 2014
	AMENDED IN SENATE  AUGUST 4, 2014
	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 and repeal Chapter 6.5 (commencing with Section
1650) of 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,  or a project that has
received certification pursuant to a specified order of the State
Water Resources Control Board  if specified conditions are
met as determined by the director. The act would create the Habitat
Restoration and Enhancement 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 require the department to assess  fees
  an application fee  for a project 
according to a specified fee schedule   submitted to the
department   consistent with specified fees adopted by the
department  but would prohibit  those fees 
 the application fee  from exceeding reasonable
administrative and implementation costs of the department relating to
the project.  Moneys in the account would be available to the
department, upon appropriation by the Legislature, for the purposes
of administering and implementing the Habitat Restoration and
Enhancement Act. The bill would require the department to submit a
report on the implementation of the act to the Legislature no later
than December 31, 2020.  The bill would repeal the act on January 1,
2022.
   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) 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.
   (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 improving fish and wildlife habitat. A
habitat restoration or enhancement project shall meet the eligibility
requirements for the State Water Resources Control Board's Order for
Clean Water Act Section 401 General Water Quality Certification for
Small Habitat Restoration Projects, or its current 
equivalent,   equi   valent  at the time
the  director reviews a project, which   project
proponent submits a written request pursuant to Section 1652 or
1653. The order or current equivalent  may  also
 include programmatic waivers or waste discharge
requirements for small habitat restoration  projects for
waters of the state that include similar conditions.  
projects. 
   (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) A project proponent may submit a written request to
approve a habitat restoration or enhancement project to the director
pursuant to this section if the project has not  yet
 received certification pursuant to the State Water
Resources Control Board's Order for Clean Water Act Section 401
General Water Quality Certification for Small Habitat Restoration
 Projects.   Projects, or its current equivalent
at the time the project proponent submits the written request. 
If the project has received certification pursuant to that order,
 or its current equivalent,  the project proponent may
submit a request for approval of the project pursuant to Section
1653.
   (b) A written request to approve a habitat restoration or
enhancement project  pursuant to this section  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 activities, and how the project is expected to result in
a net benefit to any affected habitat and  species. 
 species, consistent with paragraph (4) of subdivision (c).

   (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. The assessment shall include preproject
photographs of the project area that include a descriptive title,
date taken, the photographic monitoring point, and photographic
orientation.
   (4) A geographic description of the project site including maps,
land ownership information, and other relevant location information.
   (5) A description of the environmental protection measures
incorporated into the project design, 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. Environmental protection measures may include, but are not
limited to, 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.
   (6) 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 (c).
   (7) A certifying statement that the project  complies
  will comply  with the California Environmental
Quality Act (Division 13 (commencing with Section  21000))
  21000)  of the Public Resources  Code, by
conforming   Code), which may include, but not be
limited  to  ,  the requirements of Section 15333 of
Title 14 of the California Code of Regulations.
   (c) 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 (b), 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.
   (3) The project meets the eligibility requirements of the State
Water Resources Control Board's Order for Clean Water Act Section 401
General Water Quality Certification for Small Habitat Restoration
Projects,  or its current equivalent at the time the project
proponent submits the   written request,  but has not
 yet  received certification pursuant to that order
 or its equivalent  .
   (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, or previously approved department agreements and
permits issued for voluntary 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) Guidance documents and practice manuals that describe best
available habitat restoration or enhancement methodologies that are
utilized or approved by the department.
   (5) The project will not result in cumulative  negative
  adverse  environmental impacts that are
significant when viewed in connection with the effects of past,
current, or probable future projects.
   (d) If the director determines that the written request does not
contain all of the information required by subdivision (b), or fails
to meet the requirements set forth in subdivision (c), or both, the
director shall deny the written request and inform the project
proponent of the reason or reasons for the denial. 
   (e) The director's approval of a habitat restoration or
enhancement project pursuant to subdivision (c), 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.  
   (f) 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.  
   (g) (1) If the director determines at any time that the project is
no longer consistent with subdivision (c), 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 (c) 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).  
   (h) (1) The project proponent shall submit a monitoring plan,
monitoring report, and notice of completion to the department in a
manner to be determined by the department.  
   (2) A project proponent may comply with the requirements of
paragraph (1) by submitting to the department a monitoring report,
monitoring plan, and notice of completion required to be completed
pursuant to the State Water Resources Control Board's Order for Clean
Water Act Section 401 General Water Quality Certification for Small
Habitat Restoration Projects or its equivalent.  
   (i) Pursuant to Section 818.4 of the Government Code, the
department and any other state agency exercising authority under this
section shall not be liable with regard to any determination or
authorization made pursuant to this section.  
   (e) The project proponent shall submit a notice of completion to
the department no later than 30 days after the project approved
pursuant to this section is completed. The notice of completion shall
demonstrate that the project has been carried out in accordance with
the project's description. The notice of completion shall include a
map of the project location, including the final boundaries of the
restoration area or areas and postproject photographs. Each
photograph shall include a descriptive title, date taken,
photographic monitoring point, and photographic orientation. 

   (f) The project proponent shall submit a monitoring report
describing whether the restoration project is meeting each of the
restoration goals stated in the project application. Each report
shall include photographs with a descriptive title, date taken,
photographic monitoring point, and photographic orientation. The
monitoring reports for Section 401 Water Quality Certification or
waste discharge requirements of the State Water Resources Control
Board or a regional water quality control board, or for department or
federal voluntary habitat restoration programs, including, but not
limited to, the Fisheries Restoration Grant Program, may be submitted
in lieu of this requirement.  
   1653.  (a) A person may carry out a project that has received
certification pursuant the State Water Resources Control Board's
Order for Clean Water Act Section 401 General Water Quality
Certification for Small Habitat Restoration Projects without
obtaining a permit, agreement, license, or other approval that would
otherwise be required to carry out the project 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, if the person meets the
requirements of subdivision (b) and the director approves the
project pursuant to subdivision (d).
   (b) (1) The person shall submit a written request to the director
to approve the project described in subdivision (a). The written
request shall contain all of the following:
   (A) A statement that the person has received a notice of
applicability that indicates that the project has received
certification pursuant to the State Water Resources Control Board's
Order for Clean Water Act Section 401 General Water Quality
Certification for Small Habitat Restoration Projects.
   (B) A copy of the notice of intent that the person provided to the
State Water Resources Control Board or a regional water quality
control board.
   (C) A copy of the notice of applicability.
   (2) The person shall submit to the director the fees required
pursuant to Section 1654.
   (c) Upon receipt of the written request, the director shall
immediately have published in the General Public Interest section of
the California Regulatory Notice Register the receipt of the written
request.
   (d) Within 30 days after receiving a written request to approve a
project described in subdivision (a), the director shall approve the
project if the director determines that the written request satisfies
all of the requirements set forth in subdivision (b) and that, based
upon substantial evidence, the project meets all of the requirements
set forth in subdivision (c) of Section 1652.
   (e) The director shall immediately publish the determination made
pursuant to subdivision (d) in the General Public Interest section of
the California Regulatory Notice Register.  
   1653.  (a) A project proponent may submit a written request to
approve a habitat restoration or enhancement project to the director
pursuant to this section if the project has received certification
pursuant to the State Water Resources Control Board's Order for Clean
Water Act Section 401 General Water Quality Certification for Small
Habitat Restoration Projects, or its current equivalent at the time
the project proponent submits the written request.
   (b) A written request to approve a habitat restoration or
enhancement project pursuant to this section shall include all of the
following:
   (1) Notice that the project proponent has received a notice of
applicability that indicates that the project is authorized pursuant
to the State Water Resources Control Board's Order for Clean Water
Act Section 401 General Water Quality Certification for Small Habitat
Restoration Projects, or its equivalent at the time the project
proponent submits the written request.
   (2) A copy of the notice of applicability.
   (3) A copy of the notice of intent provided to the State Water
Resources Control Board or a regional water quality control board.
   (4) A description of species protection measures incorporated into
the project design, but not already included in the notice of
intent, to avoid and minimize impacts to potentially present species
protected by state and federal law, such as appropriate seasonal work
limitations and the use of qualified professionals for standard
preconstruction surveys where protected species are potentially
present.
   (5) The fees required pursuant to Section 1655.
   (c) Upon receipt of the notice specified in paragraph (1) of
subdivision (b), the director shall immediately have published in the
General Public Interest section of the California Regulatory Notice
Register the receipt of that notice.
   (d) Within 30 days after the director has received the notice of
applicability described in subdivision (b), the director shall
determine whether the written request accompanying the notice of
applicability is complete.
   (e) If the director determines within that 30-day period, based
upon substantial evidence, that the written request is not complete,
then the project may be authorized under Section 1652.
   (f) The director shall immediately publish the determination
pursuant to subdivision (d) in the General Public Interest section of
the California Regulatory Notice Register.
   (g) The project proponent shall submit the monitoring plan,
monitoring report, and notice of completion to the department as
required by the State Water Resources Control Board's Order Clean
Water Act Section 401 General Water Quality Certification for Small
Habitat Restoration Projects, or its current equivalent at the time
the project proponent submits the written request. The order or its
current equivalent may include programmatic waivers or waste
discharge requirements for small scale restoration projects. 

   1654.  (a) The director's approval of a habitat restoration or
enhancement project pursuant to Section 1652 or 1653 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 6 (commencing with Section 1600) and Chapter 10
(commencing with Section 1900) of this Division and Chapter 1.5
(commencing with Section 2050) of Division 3.
   (b) 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.
   (c) (1) If the director determines at any time that the project is
no longer consistent with subdivision (c) of Section 1652 or
subdivision (b) of Section 1653, as applicable, 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 (c) of Section 1652 or subdivision (b) of Section 1653,
as applicable, and request that the notice of suspension 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).
   (d) Pursuant to Section 818.4 of the Government Code, the
department and any other state agency exercising authority under this
section shall not be liable with regard to any determination or
authorization made pursuant to this section. 
    1654.   1655.   (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 included in this chapter.
   (c) The department shall assess  fees   an
application fee  for  projects approved   a
project submitted to the department  pursuant to 
Sections   Section  1652  and 
 or  1653  according to the fee schedule found in
paragraph (2) of subdivision (b) of Section 699.5 of Title 14 of the
California Code of Regulations,   consistent with the
fees adopted by the department pursuant to Chapter 6 (commencing with
Section 1600)   ,  but  those fees 
 the application fee  shall not exceed the reasonable
administrative and implementation costs of the department relating to
the project.
   (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.
    1655.  1656.   (a) The department shall
submit a report on the implementation of this chapter to the
Legislature no later than December 31, 2020, which shall include, but
not be limited to, the number, type, and geographical distribution
of approved projects, funding adequacy, and recommendations for
changes and improvements in the program.
   (b) A report to be submitted pursuant to subdivision (a) shall be
submitted in compliance with Section 9795 of the Government Code.
    1656.   1657.   This chapter shall
remain in effect only until January 1, 2022, and as of that date is
repealed, unless a later enacted statute, that is enacted before
January 1, 2022, deletes or extends that date.