BILL ANALYSIS Ó
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2013-2014 Regular Session |
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BILL NO: AB 2193 HEARING DATE: June 24, 2014
AUTHOR: Gordon URGENCY: No
VERSION: June 17, 2014 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Habitat Restoration and Enhancement Act.
BACKGROUND AND EXISTING LAW
1. Establishes the Department of Fish and Wildlife (DFW) as the
trustee for the fish and wildlife resources of California and
prohibits any act which could directly or indirectly "take"
threatened or endangered species listed under the California
Endangered Species Act (CESA) unless authorized by DFW.
2. The Native Plant Protection Act requires DFW authorization
for actions that could affect an endangered or rare native plant
unless an exemption applies for agricultural activities, timber
operations or mining.
3. Lake or Streambed Alteration Agreements with DFW are
required in specific circumstances 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. There is an existing categorical exemption under the
California Environmental Quality Act for small habitat
restoration projects for fish, plants or wildlife that do not
exceed five acres in size.
5. DFW has an existing statute that creates 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
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or 500 linear feet of stream.
PROPOSED LAW
This bill would enact the Habitat Restoration and Enhancement
Act which would require the director of DFW to approved habitat
restoration and enhancement projects that meet specified
criteria. Individual permits required under CESA, streambed
alteration statutes, and the Native Plant Protection Act would
be combined into a single permit for 5 acre restoration
projects. Specifically, this bill does all the following:
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
project to determine whether the request includes all of the
required information. Requires that the written request include
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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. The bill
authorizes DFW to enter into agreements to accept funds for
deposit into the account to supplement existing resources. DFW
would be authorized 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 those fees would not exceed what is
charged for streambed alteration agreements. Those fees are now
capped by law at $5000 but the department has adopted a fee
schedule with lower fees for various categories of projects.
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. The most recent amendments
define "seasonal dam" for these purposes as one that is no
larger than 25 feet tall and impounds no more than 50 acre-feet.
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 wildlife friendly fencing and alternative
stock water supply infrastructure;
j) Restoration of freshwater and tidal hydrologic functions in
wetlands and estuaries;
k) Creation of off-channel habitat to restore historic rearing
and flow refugia;
l) Restoration of floodplains to restore natural hydrologic
function;
m) Restoration and maintenance of existing off-stream ponds,
including spillway repair and sediment removal from such ponds
that have existing water rights and where that project would
benefit native aquatic species.
n) 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.
Recent amendments do the following:
a) Add a provision for pre-consultation between a project
proponent and the department.
b) Add the content of what must be included in habitat
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restoration or enhancement project application.
c) Define the sorts of engineering plans or landscape plans that
may be required.
d) Add a limit on the effect of these projects on the streamflow
of affected streams.
e) Add provisions for minor amendments.
f) Authorize the director to deny the request if all the
information is not properly submitted.
7. The bill includes 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. Findings are included that also
advocate 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.
ARGUMENTS IN SUPPORT
Supporters of this bill, who include groups that work with
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.
ARGUMENTS IN OPPOSITION
None received.
COMMENTS
1. A similar measure was enacted last session, but applied only
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to a narrow group of projects designed to assist in recovery of
Coho salmon habitat. AB 1961 (Huffman), Chapter 541, Statutes of
2012, established the Coho Help Act which 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).
2. Although staff is not recommending any amendments at this
time, there are two provisions that the author may want to
further consider:
A. Page 7, line 8 is an important provision that would not allow
the bill to apply to legally required mitigation. The recent
language introduces the terms "nonhabitat restoration" and
"enhancement construction activity" which the author may want to
either define or state in another way. It may even be preferable
to resort to the pre-amendment language.
B. Page 7, line 16. The author may want to consider clarifying
that the stream diversion during construction must occur within
the footprint of the 5 acre project.
SUPPORT
Sustainable Conservation (Sponsor)
Alameda County Resource Conservation District
Audubon California
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Cachuma Resource Conservation District
California Association of Professional Scientists
California Forestry Association
California Invasive Plant Council
California Native Plant Society
California Watershed Network
Defenders of Wildlife
Ducks Unlimited
Environmental Defense Center
Environmental Defense Fund
Gold Ridge Resource Conservation District
Heal the Bay
Inland Empire Resource Conservation District
Mendocino County Resource conservation District
Napa County Resource Conservation District
Peninsula Open Space Trust
Placer Resource Conservation District
Point Blue Conservation Science
Resource Conservation District Santa Cruz County
Resource Conservation District of the Santa Monica Mountains
Resource Conservation District of Ventura County
Save The Bay
Shasta Valley Resource Conservation District
Sierra Business Council
Solano Resource Conservation District
South Coast Habitat Restoration
Tahoe Resource Conservation District
Tehama County Resource Conservation District
Upper Salinas-Las Tablas Resource Conservation District
Ventura County Resource Conservation District
Yolo County Resource Conservation District
OPPOSITION
None Received
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