BILL ANALYSIS Ó
AB 2001
Page 1
Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 2001
(Mathis) - As Amended March 10, 2016
SUBJECT: Fish: fully protected species: taking or possession
SUMMARY: Authorizes the take of a fully protected fish for
efforts to recover the species. Specifically, this bill:
1)Amends the statute governing fully protected fish species to
clarify that the Department of Fish and Wildlife (DFW) may
authorize the taking of a fully protected fish for purpose of
efforts to recover the species.
2)Clarifies that efforts to recover a species for which take
could be authorized do not include an action taken as part of
specified mitigation for a project.
EXISTING LAW:
1)Prohibits the taking or possession of a fully protected fish
except as specified. The species that are classified as fully
protected fish include but are not limited to the Owens River
pupfish.
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2)Permits DFW to authorize the taking of a fully protected fish
for scientific research, including efforts to recover fully
protected, threatened, or endangered species. Requires DFW
before authorizing the take of a fully protected fish to make
an effort to notify all affected and interested parties, to
publish the notice in the California Regulatory Notice
Register, and to provide 30 days after publication for
submittal of comments.
3)Authorizes DFW to authorize the taking of a fully protected
fish species whose conservation and management is provided for
in a natural community conservation plan (NCCP) approved by
DFW.
4)Authorizes DFW to authorize incidental take of the fully
protected unarmored threespine stickleback fish, and the fully
protected limestone salamander, under certain limited
circumstances, provided specified criteria and standards are
met for minimization, mitigation and conservation.
5)Provides for the listing of species as threatened or
endangered under federal and state endangered species acts.
The DFW may issue permits for incidental take of listed
species, if specified conditions are met, including
mitigation, minimization, and adaptive management
requirements.
FISCAL EFFECT: Unknown
COMMENTS: The author has introduced this bill to allow the DFW
to permit the removal and relocation of endangered Owens River
pupfish for the purpose of population recovery of the species.
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1)Author's Statement: The author indicates this bill will
authorize actions necessary to help ensure the survival of
endangered species, such as the pupfish, by authorizing their
relocation when existing habitats do not support the species.
The author asserts that California law should promote species
revitalization rather than continuing to allow excessive red
tape to force their demise.
2)Background: The Owens River pupfish, Cyrpinoden radiosus, also
known as the Owens pupfish, is a rare species of pupfish
endemic to California and found only in the Owens Valley
portion of the Owens River, in Mono and Inyo counties.
Historically, Owens pupfish were widespread along the Owens
River, occurring in clear waters of springs, sloughs,
irrigation ditches, swamps, and flooded pastures from Fish
Slough in Mono County south to Lone Pine in Inyo County. As
of 2009 the U.S Fish and Wildlife Service reported that there
were only four surviving populations of Owens pupfish. The
species is listed as endangered under both the federal
Endangered Species Act and the California Endangered Species
Act (CESA), and is also protected under California law as a
fully protected fish species.
In the early 1900s, the Los Angeles Department of Water and
Power (LADWP) constructed an aqueduct to carry water from the
Owens River to Los Angeles. A second aqueduct was completed
in 1970 which diverted more water from the Owens Valley. Both
surface and ground water were diverted to the aqueducts. Over
time water diversion projects eliminated almost all the
habitat of the Owens pupfish. Owens pupfish were believed to
be extinct from 1942 until 1964 when a single population of
approximately 200 individuals was rediscovered in Fish Slough.
When federally listed in 1967, the Owens pupfish was still
limited to this single population. The DFW has established 6
populations since 1969; however, only four populations of
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Owens pupfish exist today. Currently, all four populations
of Owens pupfish are threatened by loss of habitat due to
cattail encroachment. DFW personnel regularly control cattail
encroachment at all Owens pupfish population sites, to
maintain open water. Non-native predators such as bullfrogs,
bass, trout, bluegill and crayfish are also a serious threat
to the Owens pupfish.
The Bishop Paiute Tribe has a long history with the Owens
pupfish. Historically, the fish was a staple food item for
the local Paiute who caught the fish in the hundreds and dried
and stored them. The tribe has been working for several years
to obtain permits to relocate some of the endangered pupfish
to conservation ponds built on the reservation's Native Fish
Refuge. In 2014 the U.S. Fish and Wildlife Service proposed
to grant the tribe a permit under a safe harbor agreement to
relocate fish from Fish Slough to the ponds as part of the
tribe's efforts to contribute toward recovery of the species.
A safe harbor agreement is a voluntary agreement whereby the
U.S. Fish and Wildlife Service, in exchange for actions that
contribute to the recovery of a listed species on non-federal
lands, provides assurances that if the parties to the
agreement fulfill the conditions of the agreement, additional
management activities will not be required. At the end of the
agreement period, participants may also return the property to
baseline conditions. The safe harbor agreement, however, was
put on hold due to concerns raised by neighboring landowners
that they might face liability under California's fully
protected species statute.
California also has a safe harbor statute (Fish and Game Code
Section 2089.2). However, while DFW under current law may
enter into safe harbor agreements and issue incidental take
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permits for species protected under CESA, subject to the
mitigation and other requirements of CESA, the Fully Protected
Species statutes do not allow for issuance of incidental take
permits, except for scientific purposes.
The status of the Owens pupfish as a fully protected species
has also come up in other contexts. The U.S. Fish and
Wildlife Service recently released a draft Habitat
Conservation Plan (HCP) for the LADWP that would provide
incidental take coverage for 10 years, allowing take under
federal law for 7 species, including the Owens pupfish.
Activities covered by the HCP include water gathering and
distribution, power production and transmission, livestock
grazing, and fire management. The project area includes about
314,000 acres of land in Inyo and Mono Counties. Public
comments on the draft HCP were extended through January 5,
2016.
The draft HCP indicates, in relevant part (page 38) that LADWP
could greatly reduce the threat of extinction for fish species
covered by the HCP by allowing establishment of additional
populations and maintaining habitat for these populations at
various locations on city-owned lands. The HCP indicates that
establishing additional populations and maintenance of habitat
are essential for the long term persistence of the Owens
pupfish and other species covered by the HCP. Before
establishing new populations (including releases into
historically occupied habitats) of covered fish species on
city lands, LADWP requires regulatory assurances that they
will be able to manage waterways for continued water gathering
and distribution activities and, if necessary, can return
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sites to baseline conditions. The U.S. Fish and Wildlife
Service can offer this type of assurance for recovery projects
for covered fish species through Safe Harbor Agreements and
issuance of Enhancement for Survival Permits which will be
developed alongside the HCP. Currently, at the state level,
DFW can offer this type of assurance to LADWP through a safe
harbor agreement for some covered species, but for Owens
pupfish and other fully protected species, DFW can only
provide assurances through the NCCP process, which LADWP is
not electing to pursue at this time because of regulatory
constraints. However, the Owens pupfish are included in the
draft HCP with the intent that should conditions change in the
future that allow DFW to offer regulatory assurances for these
species, the information in the HCP may meet or facilitate
these regulatory needs, and be used to speed up the adoption
process.
While the author has introduced this bill to assist Owens
pupfish recovery efforts of the Bishop Piaute Tribe, this bill
is not limited to tribal activities, or to the Owens pupfish.
It is, however, limited to recovery projects and does not
include actions taken as part of mitigation for a project.
3)Prior and related legislation: AB 353 (Lackey), Chapter 620,
Statutes of 2015, authorized DFW to authorize take of a fully
protected fish species known as the unarmored threespine
stickleback resulting from a habitat restoration project on
Bouquet Creek if specified conditions are met, including CESA
requirements for minimization and mitigation, necessary
measures to satisfy a conservation standard for recovery, and
an adaptive management process that substantially contributes
to the long-term conservation of the species.
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AB 1973 (Olsen), Chapter 121, Statutes of 2012, authorized DFW
to authorize incidental take of the limestone salamander, a
fully protected amphibian species, resulting from impacts
attributable to a highway restoration project in Mariposa
County known as the Ferguson Slide Permanent Restoration
Project, provided specified conditions are met, including but
not limited to, adoption of specific avoidance and mitigation
measures, CESA requirements for minimization and mitigation,
necessary measures to satisfy a conservation standard for
recovery, and an adaptive management process.
AB 1845 (Dahle) of this Session proposes to authorize DFW to
authorize take of Rough Sculpin, another fully protected fish
species, resulting from impacts attributable to repairing the
Spring Creek Bridge in Shasta County if certain conditions are
met.
AB 2488 (Dababneh) of this Session would authorize the DFW to
authorize incidental take of the unarmored threespine
stickleback, a fully protected fish species, under CESA,
attributable to operations of the Metropolitan Water District
of Southern California's Foothill Feeder water supply
facility, as specified. AB 2488 is also pending in this
committee.
4)Support Arguments: None received.
5)Opposition Arguments: None received.
REGISTERED SUPPORT / OPPOSITION:
AB 2001
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Support
None on file.
Opposition
None on file.
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096