BILL ANALYSIS Ó SENATE COMMITTEE ON NATURAL RESOURCES AND WATER Senator Fran Pavley, Chair 2015 - 2016 Regular Bill No: AB 353 Hearing Date: July 14, 2015 ----------------------------------------------------------------- |Author: |Lackey | | | ----------------------------------------------------------------- ----------------------------------------------------------------- |Version: |April 22, 2015 Amended | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant |William Craven | ----------------------------------------------------------------- Subject: Protected species: take: Bouquet Canyon: habitat restoration project. BACKGROUND AND EXISTING LAW 1)Prohibits the take or possession of any fully protected species, including fully protected fish or parts thereof, including the fully protected unarmored threespine stickleback (UTS) which is 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 Colorado River 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 a requirement to include measures necessary to satisfy the conservation standard of an NCCP for the species. 3)Authorizes the Department of Fish and Wildlife (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 AB 353 (Lackey) Page 2 of ? 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 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. PROPOSED LAW 1) This bill authorizes DFW to issue a permit for the take of the fully protected fish species, the unarmored threespine stickleback (UTS) , resulting from impacts attributable to a habitat and flow restoration project to restore and improve riparian habitat and flow capacity on public lands in the Bouquet Canyon area of northern Los Angeles County. The projects would be 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 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 AB 353 (Lackey) Page 3 of ? 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 UTS. 2) Amends the fully protected species statute to allow for the issuance of a take permit for UTS, under the conditions described above. ARGUMENTS IN SUPPORT 1) The author indicates the exemption is needed because the UTS 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. 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. AB 353 (Lackey) Page 4 of ? 2) LA County Supervisor Michael Antonovich stated that Bouquet Canyon was devastated by wildfires in 2002 and major floods in the winter of 2004-05. Since then, the canyon has deteriorated due to sedimentation and reduced water flow further worsening the habitat of the UTS. Moreover, because the stream channel is full of sediment, the roadway is often covered with water, creating a public safety issue. A local public safety emergency has been declared by the county. The supervisor has allocated $3 million in discretionary road funding to this project. ARGUMENTS IN OPPOSITION None received. COMMENTS 1. The project is still being formulated at both the federal and county levels, but take permit of UTS will ultimately be necessary for a streambed restoration and sediment removal project conceived by LA County and which may or may not involve a companion project of the US Forest Service that focuses on re-introduction and recovery of UTS in Bouquet Creek. It is clear that for the streambed restoration, the removal of vegetation (which will affect water temperature that could affect fish habitat), and any reduction in flow to accommodate removal of siltation, that take of UTS may occur. 2. On a separate track, the US Forest Service has ambitious but unfinalized plans to restore UTS to Bouquet Creek. The current UTS population has hybridized to an unknown extent with other stickleback species. The only scientific way to distinguish UTS from other fish is through genetic testing, according to DFW. Because that is not practical, DFW therefore considers for legal purposes the entire population to be fully protected. However, it is not clear whether the USFS recovery plan for UTS will occur simultaneous with the sedimentation removal, assuming it happens at all. 3. Staff is recommending a series of amendments some of which are technical and others are more substantive. The practice and custom in the Legislature is that provisions to take fully protected species should require a higher increment of AB 353 (Lackey) Page 5 of ? conservation activity than what is required for other permits pursuant to the state endangered species act. The Natural Communities Conservation Planning Act, referenced above, has been used to set forth the obligation of a permittee's conservation obligations in the context of fully protected species. a) Import into the bill the beginning and end points that identify the stretch of Bouquet Creek that will be affected by the county project. These would be from the outlet of Bouquet Creek to the boundary of the Los Angeles National Forest. b) Add, after the word "restore" the word "maintain." This would make clear that the county is able to undertake maintenance activities so that the riparian habitat improvements are maintained into the future within the time constraints of any applicable permit. c) As was done in 2012 in AB 1973 (Olsen), direct the county to have a biologist on duty at the site when any activity could reasonably affect UTS. d) Add new (c) also taken from AB 1973 ensuring that DFW will require all further measures necessary to meet the conservation standard for species contained in FGC section 2805(d). e) Add, at page 2, line 31, after "provides"-" for a monitoring program and" f) Delete the reference on page 2, line 36 to FGC section 2052.1 since that section was originally intended to apply only to private, not public applicants. (g) Require the permit be subject to all other applicable provisions of law, including CEQA and the streambed alteration agreement provisions of the FGC. (h) Provide that this section does not have any affect on the contractual obligations of LADWP to provide contracted water amounts from Bouquet Reservoir. SUPPORT LA County Supervisor Michael Antonovich AB 353 (Lackey) Page 6 of ? OPPOSITION None received. -- END --