BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  AB 2193
          Author:   Gordon (D)
          Amended:  8/22/14 in Senate
          Vote:     21

           
           SENATE NATURAL RESOURCES AND WATER COMMITTEE  :  9-0, 6/24/14
          AYES:  Pavley, Cannella, Evans, Fuller, Hueso, Jackson, Lara,  
            Monning, Wolk

           SENATE APPROPRIATIONS COMMITTEE  :  5-0, 8/14/14
          AYES:  De León, Hill, Lara, Padilla, Steinberg
          NO VOTE RECORDED:  Walters, Gaines

           ASSEMBLY FLOOR  :  77-0, 5/28/14 - See last page for vote


           SUBJECT  :    Habitat Restoration and Enhancement Act

           SOURCE  :     Sustainable Conservation


           DIGEST  :    This bill enacts the Habitat Restoration and  
          Enhancement Act (Act) which requires the Director of the  
          Department of Fish and Wildlife (Director) to approve a habitat  
          restoration and enhancement project, as defined, if specified  
          conditions are met as determined by the Director.

           Senate Floor Amendments  of 8/22/14 provide another option for  
          applicants to use the bill's permit streamlining approach for  
          small scale restoration projects by adding that projects could  
          be eligible if they have received certification by the State  
          Water Resources Control Board (Board) and meet other specified  
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          criteria.

           ANALYSIS  :    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.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.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. 

          This bill:

          1.Allows a project proponent may submit a written request to  
            approve a habitat restoration or enhancement project to the  
            Director if the project has not yet received certification  
            pursuant to the 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 writing request. 

          2.Requires a written request to approve a habitat restoration or  
            enhancement project to contain specified information  
            including, but not limited to:

             A.   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.


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             B.   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, as specified.

             C.   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. 

             D.   A geographic description of the project site including  
               maps, land ownership information, and other relevant  
               location information.

             E.   A description of the environmental protection measures  
               incorporated into the project design, so that no  
               potentially significant adverse effects on the environment,  
               as defined, are likely to occur with application of the  
               specified environmental protection measures. 

             F.   Substantial evidence to support a conclusion that the  
               project meets the requirements set forth in this bill.

             G.   A certifying statement that the project will comply with  
               the California Environmental Quality Act, which may  
               include, but not limited to, specified requirements.

          1.Provides that 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 and the project meets  
            all of the following requirements: 

             A.   The project purpose is voluntary habitat restoration and  
               the project is not required as mitigation.

             B.   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.

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             C.   The project meets the eligibility requirements of the  
               Board's 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  
               current equivalent.

             D.   The project is consistent with, or identified in,  
               sources that describe best available restoration and  
               enhancement methodologies, as specified.

             E.   The project will not result in cumulative adverse  
               environmental impacts that are significant when viewed in  
               connection with the effects of past, current, or probable  
               future projects.

          1.Specifies if the Director determines that the written request  
            does not contain all of the information or fails to meet the  
            requirements set forth in this bill, the Director shall deny  
            the written request and inform the project proponent of the  
            reason or reasons for the denial. 

          2.Requires the project proponent to submit a notice of  
            completion to the DFW no later than 30 days after the project  
            approved 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.

          3.Requires the project proponent to submit a monitoring report  
            describing whether the restoration project is meeting each of  
            the restoration goals stated in the project application.  Each  
            report must include photographs, as specified.  The monitoring  
            reports for Section 401 Water Quality Certification or waste  
            discharge requirements of the Board or a regional water  
            quality control board, or for the DFW or federal voluntary  
            habitat restoration programs, including, but not limited to,  
            the Fisheries Restoration Grant Program, may be submitted in  
            lieu of this requirement.


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          4.Allows a project proponent to submit a written request, as  
            specified, to approve a habitat restoration or enhancement  
            project to the Director if the project has received  
            certification pursuant to the Board's Projects, or its current  
            equivalent at the time the project proponent submits the  
            written request.

          5.Requires the Director, upon receipt of the specified notice,  
            to immediately have the receipt of that notice published in  
            the General Public Interest section of the California  
            Regulatory Notice Register (Register). 

          6.Requires the Director, within 30 days after the Director has  
            received the notice of applicability, to determine whether the  
            written request accompanying the notice of applicability is  
            complete.  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,  
            as specified.  The Director shall then immediately publish the  
            determination pursuant to the Register.

           7. Requires the project proponent to submit the monitoring  
             plan, monitoring report, and notice of completion to the DFW  
             as required by the Board's 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.

           8. Provides that the Director's approval of a habitat  
             restoration or enhancement project shall be in lieu of any  
             other permit, agreement, license, or other approval issued by  
             the DFW, as specified.

           9. Provides that if the Director determines at any time that  
             the project is no longer consistent with provisions set forth  
             in this bill, 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 a specified manner, and shall specify the  
             reasons why approval of the project was suspended.  The  

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             approval for a project shall not be revoked unless it has  
             first been suspended.

           10.Authorizes, within 30 days of receipt of a notice of  
             suspension, the project proponent to file an objection with  
             the Director.  Any objection must be in writing and state the  
             reasons why the project proponent objects to the suspension. 

           11.Authorizes the Director to revoke approval or lift the  
             suspension of project approval within 30 days after receiving  
             the project proponent's objection. 

           12.Creates the Habitat Restoration and Enhancement Account  
             within the Fish and Game Preservation Fund and authorizes the  
             DFW to enter into an agreement to accept funds to achieve the  
             purposes of the Act and deposit those funds into that  
             account.  

           13.Requires the DFW to assess an application fee for a project  
             submitted to the DFW consistent with specified fees adopted  
             by the DFW, but prohibits the application fee from exceeding  
             reasonable administrative and implementation costs of the DFW  
             relating to the project. 

           14.Provides that monies in the account will be available to the  
             DFW, upon appropriation by the Legislature, for the purposes  
             of administering and implementing the Act. 

           15.Requires the DFW to submit a report on the implementation of  
             the Act to the Legislature no later than December 31, 2020,  
             and repeals the Act on January 1, 2022.

           16.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  

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             agency permits, certifications and exemptions. 

           Background
           
          Under CESA, DFW is the trustee for the fish and wildlife  
          resources of the state.  CESA prohibits any act which could  
          directly or indirectly harm threatened or endangered species  
          unless authorized by DFW.  Regulations generally require that  
          CESA reviews occur within 90 days.

          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. 

          Section 1602 of the Fish and Game Code prohibits the substantial  
          diversion or obstruction of the natural flow of any river,  
          stream, or lake without approval from DFW.  If DFW determines  
          that an activity may have a substantially adverse effect  
          existing fishing or wildlife resources, DFW may require  
          necessary measures to protect the resource as part of a  
          streambed alteration agreement.  Streambed alteration agreements  
          are required to be acted upon within 90 days.  Under §1609, the  
          Director may establish a schedule of fees for a streambed  
          alteration activities that are sufficient to pay the total costs  
          incurred by DFW in administering and enforcing the chapter up to  
          an inflation adjusted cap of $5,000. 

          The California Environmental Quality Act has a categorical  
          exemption for small habitat restoration projects for fish,  
          plants or wildlife that do not exceed five acres in size.  

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee:
           
              Minor and absorbable costs to the Habitat Restoration and  
              Enhancement Account within the Fish and Game Preservation  
              Fund (special) to DFW for increased and expedited permit  
              review.

              Unknown fee revenues, but likely minor, to the Habitat  
              Restoration and Enhancement Account.

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           SUPPORT  :   (Verified  8/25/14)

          Sustainable Conservation (source) 
          Alameda County Resource Conservation District
          Association of California Water Agencies 
          Audubon California
          Cachuma Resource Conservation District
          California Association of Professional Scientists
          California Association of Resource Conservation Districts
          California Council of Land Trusts
          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
          Humboldt County Resource Conservation District
          Inland Empire Resource Conservation District
          Land Conservancy of San Luis Obispo County 
          Marin Resource Conservation District
          Mendocino and Humboldt Redwood Company
          Mendocino County Resource conservation District
          Napa County Resource Conservation District
          Peninsula Open Space Trust
          Placer Resource Conservation District
          Point Blue Conservation Science
          Prunuske Chatham, Inc.
          Resource Conservation District of Monterey County
          Resource Conservation District of the Santa Monica Mountains
          Resource Conservation District of Ventura County
          Resource Conservation District Santa Cruz County
          San Mateo County 
          San Mateo Resource Conservation District
          Save The Bay
          Shasta Valley Resource Conservation District
          Sierra Business Council
          Solano Resource Conservation District 
          Solano Resource Conservation District

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          Sonoma 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


           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. 



           ASSEMBLY FLOOR  :  77-0, 5/28/14
          AYES: Achadjian, Alejo, Allen, Ammiano, Bigelow, Bloom,  
            Bocanegra, Bonilla, Bonta, Bradford, Brown, Buchanan, Ian  
            Calderon, Campos, Chau, Chávez, Chesbro, Conway, Cooley,  
            Dababneh, Dahle, Daly, Dickinson, Eggman, Fong, Fox, Beth  
            Gaines, Garcia, Gatto, Gomez, Gonzalez, Gordon, Gorell, Gray,  
            Grove, Hagman, Hall, Harkey, Roger Hernández, Holden, Jones,  
            Jones-Sawyer, Levine, Linder, Logue, Lowenthal, Maienschein,  
            Mansoor, Medina, Melendez, Mullin, Muratsuchi, Nazarian,  
            Nestande, Olsen, Pan, Patterson, Perea, John A. Pérez, V.  
            Manuel Pérez, Quirk, Quirk-Silva, Rendon, Ridley-Thomas,  
            Rodriguez, Salas, Skinner, Stone, Ting, Wagner, Waldron,  
            Weber, Wieckowski, Wilk, Williams, Yamada, Atkins
          NO VOTE RECORDED: Donnelly, Frazier, Vacancy


          RM:nl  8/25/14   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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