California Legislature—2015–16 Regular Session

Assembly Bill No. 2162

Introduced by Assembly Member Chu

February 17, 2016

An act to add Chapter 6.3 (commencing with Section 1625) to Division 2 of the Fish and Game Code, and to repeal Section 21083.4 of the Public Resources Code, relating to forestry, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

AB 2162, as introduced, Chu. Oak Woodlands Protection Act.

The Z’berg-Nejedly Forest Practice Act of 1973 prohibits a person from conducting timber operations unless a timber harvesting plan prepared by a registered professional forester has been submitted to the Department of Forestry and Fire Protection. The Oak Woodlands Conservation Act provides funding for the conservation and protection of California’s oak woodlands. Any violation of the Fish and Game Code is a crime.

This bill would enact the Oak Woodlands Protection Act, which would prohibit a person from removing from an oak woodland, as defined, specified oak trees, unless an oak removal plan and oak removal permit application for the oak tree removal has been submitted to and approved by the Director of Fish and Wildlife.

By June, 30, 2016, the bill would require the Fish and Game Commission to adopt regulations to implement the act, including regulations establishing an oak removal permit application fee. The bill would require the fee to be deposited into the Oak Woodlands Protection Act Fund, as created by the bill. Moneys in the fund would be continuously appropriated to the department for purposes of paying the total costs incurred by the department in administering and enforcing the act, thereby making an appropriation.

The bill would provide that any person who violates the act is subject to a civil penalty of not more than $25,000 for each violation. The bill would require all civil penalties collected to be apportioned in a specified manner, including 50% to be distributed to the Wildlife Conservation Board for deposit into the Oak Woodlands Conservation Fund.

Existing law requires a county to determine whether a project may result in a conversion of oak woodlands that will have a significant effect on the environment, and if it does, existing law requires the county to require one or more specified oak woodlands mitigation alternatives to mitigate the significant effect.

This bill would delete this law.

To the extent this bill would provide for additional criminal prosecutions for violations of the Fish and Game Code, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: yes. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Chapter 6.3 (commencing with Section 1625) is
added to Division 2 of the Fish and Game Code, to read:

 

Chapter  6.3. Oak Woodlands Protection Act

 

1625.  

This chapter shall be known, and may be cited, as the
Oak Woodlands Protection Act.

1626.  

The Legislature hereby finds and declares all of the
following:

(a) The conservation of oak woodlands enhances the natural
scenic beauty for residents and visitors, increases real property
values, promotes ecological balance, provides sustainable habitat
for over 300 wildlife species and 2,000 plant species, reduces soil
erosion, sustains healthy watersheds and water quality, moderates
temperature extremes and climate change, and aids with nutrient
cycling, all of which affect and improve the health, safety, and
general welfare of the residents of the State of California.

(b) Widespread changes in land use patterns across the landscape
and habitat loss due to the pathogen Phytophthora ramorum,
commonly known as Sudden Oak Death, and infestations of the
Goldspotted Oak Borer parasite, are fragmenting oak woodlands’
wildland character over extensive areas of the state. The
combination of human impact and other impacts will cumulatively
fragment oak ecosystem continuity unless appropriate conservation
steps are taken immediately.

(c) The future viability of hundreds of California’s wildlife
species are dependent on the maintenance of biologically functional
and contiguous oak woodland ecosystems at local and bioregional
scales.

(d) A program to encourage and make possible the long-term
conservation of oak woodlands is a necessary part of the state’s
wildlands protection policies. It is hereby declared to be the policy
of the state to conserve oak woodlands and maintain oak ecosystem
health.

1627.  

It is the intent of the Legislature that this chapter be
construed in light of the following primary objectives:

(a) To conserve oak woodland ecological attributes remaining
in California and to provide habitat for wildlife species that are
associated with that habitat.

(b) To provide maximum conservation of the oak woodlands
ecosystem.

(c) To ensure that land use decisions affecting oak woodlands
and dependent wildlife are based on the best available scientific
information and habitat mitigation measures.

(d) To restore and perpetuate the state’s most biologically
diverse natural resource for future generations of Californians.

1628.  

For purposes of this chapter, the following terms have
the following meanings:

(a) “Canopy cover” means the area, measured as a percentage
of total ground area, directly under the live branches of an oak
tree.

(b) “Oak removal” means causing an oak tree to die or be
removed as a result of human activity by any means including, but
not limited to, cutting, dislodging, poisoning, burning, pruning,
topping, or damaging of roots.

(c) “Oak removal permit” means a discretionary permit
approving an application to remove, from an oak woodland during
any calendar year, oak trees, as specified in Section 1629.

(d) “Oak removal plan” means an oak woodlands biological
impacts evaluation and site-specific management plan.

(e) “Oak tree” means any tree in the genus Quercus that is not
growing on timberland.

(f) “Oak woodland” means a land with a greater than ten percent
oak canopy cover, or that can be demonstrated to have historically
supported greater than ten percent oak canopy cover, and that
meets either of the following:

(1) A nontimberland area on a parcel of five or more acres
containing oak trees.

(2) A nontimberland area on a parcel of at least one or more
acres containing valley oak trees.

(g) “Parcel” means a single assessor’s parcel of land as shown
on maps produced by the county assessor.

(h) “Riparian hardwood” means native broadleaved evergreen
and deciduous trees that produce flowers and grow within 50 feet,
measured horizontally, of any watercourse, lake, or reservoir.

(i) “Timberland” has the same meaning as defined in Section
4526 of the Public Resources Code.

(j) “Watercourse” means any well-defined channel with
distinguishable bed and bank showing evidence of having contained
flowing water indicated by deposit of rock, sand, gravel, or soil,
including, but not limited to, a “stream” as defined in Section 4528
of the Public Resources Code.

1629.  

(a) (1) Unless an oak removal plan and oak removal
permit application for oak removal has been submitted to and
approved by the director, a person shall not remove from an oak
woodland during a calendar year either of the following:

(A) A valley oak tree greater or equal to 10 inches in diameter
at breast height.

(B) For oak trees other than valley oak trees, 10 or more oak
trees greater than or equal to 10 inches in diameter at breast height.

(2) The director’s authority to approve an oak removal plan and
oak removal permit application pursuant to this subdivision may
be delegated by the director to regional managers in the department.

(b) An oak removal plan and oak removal permit application
shall be prepared and signed by a registered professional forester.

(c) Applications for oak removal permits shall be on a form
prescribed by the director.

(d) By June 30, 2016, the commission shall adopt regulations
to implement this chapter, including regulations establishing an
application fee for the cost of processing an application for an oak
removal permit. The fee charged shall be established in an amount
necessary to pay the total costs incurred by the department in
administering and enforcing this chapter. The regulations shall
ensure that the canopy cover and mapping information contained
in all oak removal plans submitted as part of an oak removal permit
application is incorporated into a vegetation classification and
mapping program maintained by the department.

(e) The fee established pursuant to this section shall be deposited
into the Oak Woodlands Protection Act Fund, which is hereby
created in the State Treasury. Notwithstanding Section 13340 of
the Government Code, moneys in the fund are continuously
appropriated to the department for the purposes described in
subdivision (d).

1630.  

An oak removal plan, in a form prescribed by the
commission, shall become part of the application for an oak
removal permit. The oak removal plan shall set forth, but not be
limited to, the following information:

(a) Present and future parcel use.

(b) Existing and proposed parcel canopy cover percentages.

(c) A parcel map indicating the location of all proposed oak
removal.

(d) Diameter at breast height and type of oak species to be
removed.

(e) Number of acres on which oak removal will occur.

(f) Habitat mitigation measures.

(g) Information required pursuant to Section 21160 of the Public
Resources Code.

1631.  

(a) The director’s decision to approve an oak removal
permit pursuant to this chapter is a discretionary project approval
subject to the California Environmental Quality Act (Division 13
(commencing with Section 21000) of the Public Resources Code).

(b) The director or commission may apply to the Secretary of
the Natural Resources Agency to certify this program pursuant to
Section 21080.5 of the Public Resources Code.

1632.  

(a) The director shall not approve an oak removal permit
if any of the following exist:

(1) The application and oak removal plan do not comply with
this chapter or the regulations adopted by the commission to
implement this chapter.

(2) The director cannot make the findings specified in Section
21081 of the Public Resources Code.

(3) Oak tree removal contemplated in the permit would remove
more than 10 percent of the oak canopy cover that existed on
January 1, 2015.

(4) Oak or riparian hardwood trees would be removed within
50 feet of any watercourse, lake, or reservoir.

(5) There is evidence that the information contained in the
application or oak removal plan is, in a material way, either
incorrect, incomplete, or misleading, or is insufficient to evaluate
the plan’s environmental effects.

(6) The applicant does not have a legal or equitable interest in
the property subject to the application.

(7) Implementation of the oak removal plan as proposed would
cause a violation of any applicable law.

(b) Paragraphs (3) and (4) of subdivision (a) do not apply to the
removal of dead trees or the removal of oak trees to create legally
required fire breaks, fuel breaks, and rights-of-way.

1633.  

(a) The applicant may appeal the director’s denial of an
oak removal permit to the commission by filing a notice of appeal
with the department within 15 days after notice of the denial. The
commission shall hear the appeal within 60 days after the appeal
is filed unless a later hearing date is mutually agreed upon by the
applicant and the commission.

(b) An applicant whose application for an oak removal permit
has been denied is entitled to a hearing before the commission
conducted pursuant to Chapter 5 (commencing with Section 11500)
of Part 1 of Division 3 of Title 2 of the Government Code. The
commission shall hear and decide appeals de novo.

1634.  

(a) A person may maintain an action for declaratory and
equitable relief to restrain any violation of this chapter. On a prima
facie showing of a violation of this chapter, preliminary equitable
relief shall be issued to restrain any further violation of this chapter.

(b) Oak removal permits approved pursuant to this chapter are
construction projects as that term is used in Section 529.1 of the
Code of Civil Procedure. In any civil action brought pursuant to
this chapter in which a temporary restraining order, preliminary
injunction, or permanent injunction is sought, it is not necessary
to allege or prove at any stage of the proceeding either of the
following:

(1) That irreparable damage will occur if the temporary
restraining order, preliminary injunction, or permanent injunction
is not issued.

(2) The remedy at law is inadequate.

1635.  

The permittee shall cause an approved oak removal
permit to be recorded in each county in which the property is
located before beginning any operations contemplated under the
permit.

1636.  

(a) A person who violates this chapter is subject to a
civil penalty of not more than twenty-five thousand dollars
($25,000) for each violation.

(b) The civil penalty imposed for each violation pursuant to this
section is separate from, and in addition to, any other civil penalty
imposed for a violation pursuant to this section or any other
provision of law.

(c) In determining the amount of any civil penalty imposed
pursuant to this section, the court shall take into consideration the
nature, circumstance, extent, and gravity of the violation. In making
this determination, the court may consider whether the effects of
the violation may be reversed or mitigated, and with respect to the
defendant, the ability to pay, any voluntary mitigation efforts
undertaken, any prior history of violations, the gravity of the
behavior, the economic benefit, if any, resulting from the violation,
and any other matters the court determines justice may require.

(d) Every civil action brought under this section shall be brought
by the Attorney General upon complaint by the department, or by
the district attorney or city attorney in the name of the people of
the State of California and any actions relating to the same violation
may be joined or consolidated.

(e) All civil penalties collected pursuant to this section shall not
be considered fines or forfeitures as described in Section 13003
and shall be apportioned in the following manner:

(1) Fifty percent shall be distributed to the county treasurer of
the county in which the action is prosecuted. Amounts paid to the
county treasurer shall be deposited in the county fish and wildlife
propagation fund established pursuant to Section 13100.

(2) Fifty percent shall be distributed to the Wildlife Conservation
Board for deposit in the Oak Woodlands Conservation Fund created
by Section 1363. These funds may be expended to cover the costs
of any legal actions or for any other law enforcement purpose
consistent with Section 9 of Article XVI of the California
Constitution.

SEC. 2.  

Section 21083.4 of the Public Resources Code is
repealed.

begin delete

21083.4.  

(a) For purposes of this section, “oak” means a native
tree species in the genus Quercus, not designated as Group A or
Group B commercial species pursuant to regulations adopted by
the State Board of Forestry and Fire Protection pursuant to Section
4526, and that is 5 inches or more in diameter at breast height.

(b) As part of the determination made pursuant to Section
21080.1, a county shall determine whether a project within its
jurisdiction may result in a conversion of oak woodlands that will
have a significant effect on the environment. If a county determines
that there may be a significant effect to oak woodlands, the county
shall require one or more of the following oak woodlands
mitigation alternatives to mitigate the significant effect of the
conversion of oak woodlands:

(1) Conserve oak woodlands, through the use of conservation
easements.

(2) (A) Plant an appropriate number of trees, including
maintaining plantings and replacing dead or diseased trees.

(B) The requirement to maintain trees pursuant to this paragraph
terminates seven years after the trees are planted.

(C) Mitigation pursuant to this paragraph shall not fulfill more
than one-half of the mitigation requirement for the project.

(D) The requirements imposed pursuant to this paragraph also
may be used to restore former oak woodlands.

(3) Contribute funds to the Oak Woodlands Conservation Fund,
as established under subdivision (a) of Section 1363 of the Fish
and Game Code, for the purpose of purchasing oak woodlands
conservation easements, as specified under paragraph (1) of
subdivision (d) of that section and the guidelines and criteria of
the Wildlife Conservation Board. A project applicant that
contributes funds under this paragraph shall not receive a grant
from the Oak Woodlands Conservation Fund as part of the
mitigation for the project.

(4) Other mitigation measures developed by the county.

(c) Notwithstanding subdivision (d) of Section 1363 of the Fish
and Game Code, a county may use a grant awarded pursuant to
the Oak Woodlands Conservation Act (Article 3.5 (commencing
with Section 1360) of Chapter 4 of Division 2 of the Fish and
Game Code) to prepare an oak conservation element for a general
plan, an oak protection ordinance, or an oak woodlands
management plan, or amendments thereto, that meets the
requirements of this section.

(d) The following are exempt from this section:

(1) Projects undertaken pursuant to an approved Natural
Community Conservation Plan or approved subarea plan within
an approved Natural Community Conservation Plan that includes
oaks as a covered species or that conserves oak habitat through
natural community conservation preserve designation and
implementation and mitigation measures that are consistent with
this section.

(2) Affordable housing projects for lower income households,
as defined pursuant to Section 50079.5 of the Health and Safety
Code, that are located within an urbanized area, or within a sphere
of influence as defined pursuant to Section 56076 of the
Government Code.

(3) Conversion of oak woodlands on agricultural land that
includes land that is used to produce or process plant and animal
products for commercial purposes.

(4) Projects undertaken pursuant to Section 21080.5 of the Public
Resources Code.

(e) (1) A lead agency that adopts, and a project that
incorporates, one or more of the measures specified in this section
to mitigate the significant effects to oaks and oak woodlands shall
be deemed to be in compliance with this division only as it applies
to effects on oaks and oak woodlands.

(2) The Legislature does not intend this section to modify
requirements of this division, other than with regard to effects on
oaks and oak woodlands.

(f) This section does not preclude the application of Section
21081 to a project.

(g) This section, and the regulations adopted pursuant to this
section, shall not be construed as a limitation on the power of a
public agency to comply with this division or any other provision
of law.

end delete

SEC. 3.  

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.