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
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|Author: |Lackey | | |
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|Version: |April 22, 2015 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant |William Craven |
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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
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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
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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.
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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
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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
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OPPOSITION
None received.
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