BILL ANALYSIS Ó AB 2193 Page 1 Date of Hearing: April 8, 2014 ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE Anthony Rendon, Chair AB 2193 (Gordon) - As Amended: April 2, 2014 SUBJECT : Habitat Restoration and Enhancement Act SUMMARY : Enacts the Habitat Restoration and Enhancement Act which would require the director of the Department of Fish and Wildlife (DFW) to approved habitat restoration and enhancement projects that meet specified criteria. Specifically, this bill : 1)Requires the director of DFW to 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: a) Is a voluntary habitat restoration project and not required for mitigation. b) Is no larger than 5 acres in size. c) In consistent with or identified in: i. Federal and state listed species recovery plans or published protection measures, biological opinions, or previously approved DFW agreements and permits; ii. DFW and National Marine Fisheries Service Screening Criteria or fish passage guidelines; iii. DFW's California Salmonid Stream Habitat Restoration Manual; or iv. Scientifically researched studies, guidance documents or practice manuals that describe best available habitat restoration or enhancement methodologies. d)Will not result in cumulative negative environmental impacts, as specified. 2)Provides that the director's approval of a project shall be in lieu of any other permit, agreement, or license. 3)Requires the director within 30 days of receiving a written request for approval of a habitat restoration or enhancement AB 2193 Page 2 project to determine whether the request includes all of the required information. Requires that the written request include specified information, including: a full description of the project and how it will result in a net benefit to any affected habitat and species; an assessment of the project area that includes a description of existing flora and fauna and the potential presence of sensitive species or habitat; a description of the environmental protection measures incorporated into the project to protect water quality and protected species, such that no potentially significant negative effects to the environment are likely to occur; and substantial evidence that the project meets the specified requirements. 4)Requires the director to notify the project proponent and suspend implementation of the project if at any time the director determines that the project is no longer consistent with all of the requirements due to a material change. Within 30 days of receipt of a notification of suspension, the project proponent may file a written objection with the director and request a lifting of the suspension. Requires the director within 30 days of receipt of an objection to suspension to either revoke the approval or lift the suspension. 5)Creates the Habitat Restoration and Enhancement Account within the Fish and Game Preservation Fund, the monies within which would be available to DFW upon appropriation of the Legislature to administer and implement this bill. Authorizes DFW to enter into agreements to accept funds for deposit into the account to supplement existing resources. Authorizes DFW to impose a schedule of fees for projects, based on the cost of a project and sufficient to recover all reasonable administrative and implementation costs of DFW related to the project, but not to exceed the fees adopted by DFW for streambed alteration agreements for projects of comparable cost. 6)Defines a "habitat restoration or enhancement project" for purposes of this bill to mean a project the primary purpose of which is to do one or more of the following: a) Stream, river bank, lake or other waterway revegetation to improve habitat; b) Stream or river bank stabilization with native vegetation or other predominantly non-rock bioengineering techniques to reduce erosion and sedimentation; c) Modification, replacement or removal of fish passage AB 2193 Page 3 barriers, as specified; d) Modifications of existing water diversion infrastructure to enhance stream flow and improve fish habitat and survival, including pumps and fish screens; e) Placement or installation of large wood, gravel, and other in-stream materials; f) Sediment source reduction on existing roads; g) Upland erosion control using bioengineering techniques and native revegetation; h) Control and removal of invasive plant species; i) Installation of fencing and alternative stock water supply infrastructure; j) Restoration of freshwater and tidal hydrologic functions in wetlands and estuaries; aa) Creation of off-channel habitat to restore historic rearing and flow refugia; bb) Restoration of floodplains to restore natural hydrologic function; cc) Restoration and maintenance of existing off-stream ponds, including spillway repair and sediment removal; dd) Other habitat restoration projects requiring permits from DFW whose primary purpose is to recover listed species and are included in species recovery plans or other DFW identified habitat and species recovery actions. 7) Defines various other terms for purposes of this bill. 8)States legislative findings and declarations regarding the need for small-scale ecosystem restoration projects to benefit listed species and the need for more efficient and expedited processes for willing landowners and local governments to obtain necessary regulatory approval and permits for such projects. States legislative intent to provide for substantial permitting efficiency to encourage increased implementation of voluntary, environmentally beneficial small-scale habitat restoration projects that provide an individual and cumulative net environmental benefit, incorporate measures to protect against any adverse change, and follow applicable preexisting state and federal agency permits, certifications and exemptions. EXISTING LAW : 1)Establishes DFW as the trustee for the fish and wildlife resources of California and prohibits any act which could AB 2193 Page 4 directly or indirectly "take" threatened or endangered species listed under the California Endangered Species Act (CESA) unless authorized by DFW. 2)Requires DFW authorization if an action could affect an endangered or rare native plant unless it fits into an exemption for agricultural activities, timber operations or mining. 3)Requires a Lake or Streambed Alteration Agreement with DFW in order to protect and conserve fish and wildlife resources if an activity could change the bed, bank or channel of a stream or lake. 4)States that specified activities to assure the maintenance, restoration, or enhancement of a natural resource, including small habitat restoration projects for fish, plants or wildlife that do not exceed five acres in size, are categorically exempt from further review under the California Environmental Quality Act. 5)Provides DFW with an expedited mechanism to approve specific types of voluntary on-the-ground habitat restoration projects that benefit Coho salmon. Projects eligible for the approval are limited to projects within a region described in an adopted state or federal Coho salmon recovery plan that do one or more of the following: restore stream banks, modify water crossings, or place wood to enhance habitat or increase stream complexity. Eligible projects are also limited to projects that are less than five acres in size or 500 linear feet. FISCAL EFFECT : Unknown; this bill authorizes DFW to impose fees for projects, but limits the amount of such fees to the amount of fees charged for streambed alteration agreements for projects of similar cost. It is unclear whether this will be sufficient to fully cover the costs of DFW's review of project applications. COMMENTS : The author has introduced this bill to provide private landowners, conservation organizations and local public agencies with streamlined access to the environmental permits required for small (less than 5 acres) ecosystem and urban watershed restoration projects. By providing an efficient path for regulatory compliance, the author seeks to create new opportunities for much-needed rural, urban, coastal, and inland ecosystem restoration projects. As the legislative findings and AB 2193 Page 5 declarations in the bill indicate, California is home to many species that are threatened or endangered, and for some of these species, immediate recovery actions are necessary to avoid further population declines or extinctions. While tremendous demand exists for small-scale ecosystem restoration projects, current regulatory mechanisms create barriers to the ability of many willing private landowners and local governments to efficiently access the necessary permits to implement the projects. Since demand for these public benefit projects outpaces the regulatory approval process's capacity, hundreds of small projects designed to benefit California's most vulnerable wildlife species are not being implemented. Current law generally requires that project proponents secure CEQA, CESA, Water Board permits, and streambed alteration agreement permits for many kinds of small-scale but important ecosystem restoration projects. Backlogs and delays associated with permitting have been identified as substantial barriers to implementing these small voluntary restoration projects in many regions throughout the state. This bill is designed to provide the DFW with a more efficient process for reviewing and approving small, voluntary restoration projects. One of the ways it does this is by requiring that more detailed information necessary for approval of the project be provided upfront in the application. Eligible projects would be limited to small-scale, voluntary projects of five acres or less. Project applicants would be required to demonstrate, among other things, that the project is consistent with existing state or federal recovery plans or other specified policies, would provide a net benefit to affected habitats and species, and would not result in cumulative impacts. A similar measure was enacted last session, but only applied to a more narrow group of projects designed to assist in recovery of Coho salmon habitat. AB 1961 (Huffman), known as the Coho Help Act, streamlined and expedited the approval process for Coho salmon habitat enhancement projects in order to prevent extinction. The habitat projects were limited to areas with an approved Coho salmon recovery plan and included modifications of water crossings to remove barriers to fish passage (e.g. replacing culverts), stream bank restoration, and wood placement to increase the complexity of stream flow (e.g. placing wood stumps or logs to form pools). Support Arguments : Supporters, who include groups that work with AB 2193 Page 6 farmers, ranchers, water districts, local governments and nonprofits on ecosystem restoration strategies, assert that important habitat restoration work to benefit vulnerable wildlife species in California could be significantly ramped up to meet the demand and need for this work if a new, consolidated environmental permitting process were developed for small-scale voluntary ecosystem restoration projects. Supporters assert this bill will simplify the permitting process at DFW for landowners, state and local governments, and conservation organizations proposing to implement small-scale environmentally beneficial projects, while also ensuring compliance with necessary environmental protections. This bill will also assist DFW in meeting goals for species recovery. REGISTERED SUPPORT / OPPOSITION : Support Sustainable Conservation (sponsor) California Association of Resource Conservation Districts California Invasive Plant Council California Watershed Network Cachuma Resource Conservation District Defenders of Wildlife Environmental Defense Center Environmental Defense Fund Gold Ridge Resource Conservation District Marin Resource Conservation District Mendocino County Resource Conservation District Monterey County Resource Conservation District Placer Resource Conservation District San Mateo County Resource Conservation District Shasta Valley Resource Conservation District Sierra Business Council South Coast Habitat Restoration Tahoe Resource Conservation District Tehama County Resource Conservation District The Land Conservancy of San Luis Obispo County Upper Salinas-Las Tablas Resource Conservation District Ventura County Resource Conservation Districts Yolo County Resource Conservation District Opposition None on file. Analysis Prepared by : Diane Colborn / W., P. & W. / (916) AB 2193 Page 7 319-2096