BILL ANALYSIS Ó AB 353 Page 1 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 AB 353 Page 2 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. AB 353 Page 3 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 AB 353 Page 4 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 AB 353 Page 5 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. AB 353 Page 6 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 Page 7