BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2193| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 CONTINUED AB 2193 Page 2 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. CONTINUED AB 2193 Page 3 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. CONTINUED AB 2193 Page 4 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. CONTINUED AB 2193 Page 5 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 CONTINUED AB 2193 Page 6 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 CONTINUED AB 2193 Page 7 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. CONTINUED AB 2193 Page 8 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 CONTINUED AB 2193 Page 9 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 CONTINUED AB 2193 Page 10 **** END **** CONTINUED