BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 2001 Hearing Date: June 14,
2016
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|Author: |Mathis | | |
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|Version: |May 16, 2016 |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|William Craven |
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Subject: Fish: fully protected species: California State Safe
Harbor Agreement Program Act
BACKGROUND AND EXISTING LAW
Provisions of the California Endangered Species Act contain
prohibitions on the take of wildlife that are classified as
"fully protected species." There are fully protected species
statutes for birds, mammals, reptiles and amphibians. Take of
these species is authorized in very limited circumstances such
as for scientific research or pursuant to a Natural Communities
Conservation Plan. Specifically, 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.
2) Permits Department of Fish and Wildlife (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
AB 2001 (Mathis) Page 2
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(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 regarding location as well as take 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.
6) Establishes procedures for "safe harbor" agreements that
allow landowners to take endangered or threatened species
under specified conditions.
7) 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 order to assist
in recovery efforts for this species.
FISCAL EFFECT: Unknown
PROPOSED LAW
This bill would authorize the take of fully protected fish when
necessary for scientific research or in efforts to fully recover
listed species. Listed refers to species designated as fully
protected, endangered, threatened, or species of special
concern, all of which are terms used in the California
Endangered Species Act.
The bill would also authorize the take of fully protected fish
in the Owens River and Mojave River watersheds in the context of
safe harbor agreements between landowners and DFW.
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.
AB 2001 (Mathis) Page 3
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ARGUMENTS IN SUPPORT
The Bishop Paiute Tribe is the sponsor of the bill and it states
that the bill will clearly convey the authority for the state to
issue permits for take incidental to efforts to recover
endangered fish by reversing the decline of populations through
the removal of barriers for cooperative restoration projects.
Audubon California states that the Owens Pupfish could be
recovered by expanding its range beyond the few isolated areas
where they currently exist to sites with appropriate habitat in
multiple locations throughout the valley.
The Bridgeport Indian Colony states that the Owens pupfish once
occupied many areas within the Owens Valley and was an important
food source for the Paiute.
The Desert Fishes Council, a professional association of
scientists, states that the Owens pupfish now lives only in five
ponds which cumulative cover less than one-third of an acre. The
fish may be successfully managed as proposed by the Bishop
Paiute.
ARGUMENTS IN OPPOSITION
None received.
COMMENTS
1)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. A comprehensive
history written by the Assembly Water Parks and Wildlife
Committee points out that, 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
AB 2001 (Mathis) Page 4
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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
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.
In 2014 the U.S. Fish and Wildlife Service proposed to grant
the Bishop Paiute 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
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
AB 2001 (Mathis) Page 5
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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
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.
SUGGESTED AMENDMENTS
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While the author has introduced this bill to assist Owens
pupfish recovery efforts of the Bishop Paiute Tribe, this bill
is not limited to tribal activities, or to the Owens pupfish.
The Committee may want to specify which species the bill applies
to. The range of another fully protected fish species, the
Mohave Chub, includes this watershed.
AMENDMENT 1
Page 2, line 3. Delete "fully protected fish" and replace
with "Owens River pupfish."
SUPPORT
Bishop Paiute Tribe
Audubon California
Bridgeport Indian Colony
Desert Fishes Council
Bishop Tribal Council
Owens Valley Indian Water Commission
OPPOSITION
None Received
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