BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 2193
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          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  








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            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  








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                 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  








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            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  








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          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  








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          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)  








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          319-2096