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




















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