BILL ANALYSIS Ó
AB 353
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 353
(Lackey) - As Amended April 22, 2015
SUBJECT: Protected species: take: Bouquet Canyon: habitat
restoration project
SUMMARY: Amends the Fully Protected Species statute to
authorize the Department of Fish and Wildlife (DFW) to authorize
the take of unarmored threespine stickleback, a fully protected
species, resulting from a habitat restoration project in Bouquet
Canyon and Bouquet Creek, if specified conditions are met.
Specifically, this bill:
1)Authorizes DFW to authorize take of unarmored threespine
stickleback resulting from impacts attributable to a habitat
restoration project to restore and improve riparian habitat on
public lands in the Bouquet Canyon area, and projects to
restore the flow capacity to Bouquet Creek in Bouquet Canyon
on public lands, undertaken by the Los Angeles County
Department of Public Works, the Los Angeles Department of
Water and Power, and the United State Department of
Agriculture, Forest Service, if all of the following
conditions are met:
a) DFW determines that appropriate agreements have been
executed to address environmental impacts at the Bouquet
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Canyon areas, including but not limited to Bouquet Creek;
b) Requirements of the California Endangered Species
Act (CESA) for issuance of an incidental take permit are
satisfied; (These existing requirements include but are
not limited to, finding that the take is incidental to an
otherwise lawful activity, that impacts of the take are
minimized and fully mitigated, that mitigation options
are roughly proportional to the impacts of the take and
are capable of successful implementation, and that the
applicant ensures adequate funding to implement
mitigation and monitoring requirements.)
c) The take authorization provides for development and
implementation, in cooperation with federal and state
agencies, of an adaptive management process for
monitoring the effectiveness of, and adjusting as
necessary, measures to minimize and fully mitigate the
impacts of the authorized take, and requires that
mitigation measures meet requirements for proportionality
and maintaining the project proponent's objectives to the
extent possible; and
d) The take authorization provides for development and
implementation, in cooperation with state and federal
agencies, of an adaptive management process that
substantially contributes to the long-term conservation
of the unarmored threespine stickleback.
2)Amends the Fully Protected Species statute to allow for the
issuance of a take permit for unarmored threespine
stickleback, under the conditions described above.
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EXISTING LAW:
1)Prohibits the take or possession of any fully protected
species, including fully protected fish or parts thereof.
Lists the unarmored threespine stickleback as a fully
protected fish.
2)Allows for limited exceptions to the above prohibition for
take of fully protected species under three circumstances: 1)
pursuant to the Quantification Settlement Agreement; 2) where
conservation of the species is provided for pursuant to a
Natural Communities Conservation Plan (NCCP); and 3) for take
of the limestone salamander resulting from impacts
attributable to the Department of Transportation's
implementation of the Ferguson Slide Permanent Restoration
Project, contingent upon prescribed conditions, including that
measures necessary to satisfy the conservation standard of an
NCCP for the species are included.
3)Authorizes DFW to authorize the taking of fully protected
species for necessary scientific research, including efforts
to recover fully protected, threatened, or endangered species.
Requires DFW, prior to authorizing take for these purposes,
to notify all affected and interested parties to solicit
information and comments on the proposed authorization.
Requires the notification to be published in the California
Regulatory Notice Register and for interested parties to have
30 days after notification is published to provide comments.
Provides that "scientific research" does not include any
actions taken as part of specified mitigation for a project.
4)Prohibits the take of species listed as endangered or
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threatened under the CESA, but authorizes the DFW to authorize
the take of species listed under CESA if the take is
incidental to an otherwise lawful activity and the impacts are
minimized and fully mitigated.
FISCAL EFFECT: Unknown
COMMENTS: This bill provides a narrow exemption from the
prohibition on take of fully protected fish species to allow the
Los Angeles County Public Works Department to undertake a
habitat restoration project on Bouquet Canyon Creek.
1)Author's Statement: The author indicates the exemption is
needed because the unarmored threespine stickleback fish is
present in the area where the habitat restoration project will
take place, and without the project, the long-term viability of
the fish will be threatened. In other words, the author and
project proponents indicate that some take of the species is
necessary in order to conduct the habitat restoration that is
necessary for the species' survival.
The author asserts that currently no exemption exists under
current law to take fully protected species for habitat
restoration projects. The existing law does provide an
exemption from the prohibition on take of fully protected
species for scientific research projects, the purpose of which
are to recover fully protected, threatened or endangered
species. This narrow exemption for scientific research does not
apply to actions taken as part of mitigation for a project.
2)Background: Background information provided by the author
indicates that the need for the restoration project arose due to
a large flood in the winter of 2004/2005 that has negatively
affected the natural flow of Bouquet Creek since that time and
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threatened the habitat of the unarmored threespine stickleback
fish. Large deposits of sediment significantly altered and
elevated certain parts of the creek bed, causing a diversion in
water flow. In addition to damaging the ecosystem and fish
habitat, the diverted water flow also regularly floods the
adjacent road, posing a threat to motorists, and has negatively
affected well levels downstream. The proposed project will
remove sediment and dense vegetation, reestablish stream bank
vegetation where needed to enhance riparian habitat, and create
a backwater preserve for aquatic species habitat. The backwater
preserve will also serve as an environmental education site and
restoration ecology staging area. Because a large amount of this
project will take place on federal lands, Los Angeles County
Public Works has been working with the United States Forest
Service for authorization and approval of environmental
mitigation through the National Environmental Policy Act (NEPA)
process. The project proponents are also working at the state
level with the Department of Fish and Wildlife which indicates
that the habitat restoration project is necessary to restore
habitat for the species.
3)Prior and related legislation: SB 618 (Wolk), Chapter 596,
Statutes of 2011, allowed a permit to be issued for take of a
fully protected species as part of an NCCP if the species is a
covered species whose conservation and management is provided
for under the NCCP.
AB 1973 (Olsen), Chapter 121, Statutes of 2012, authorized DFW
to issue an incidental take permit authorizing take of the
limestone salamander, a fully protected species, resulting from
impacts attributable to the Department of Transportation's
implementation of the Ferguson Slide Permanent Restoration
Project, provided specified conditions are met, including that
further measures necessary to satisfy the conservation standard
of an NCCP are included in the project.
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REGISTERED SUPPORT / OPPOSITION:
Support
Michael Antonovich, Mayor, Los Angeles County Board of
Supervisors
Los Angeles County Public Works Department
Opposition
None on file.
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096
AB 353
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