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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