Amended in Senate June 21, 2016

Amended in Senate June 9, 2016

Amended in Assembly April 14, 2016

Amended in Assembly March 31, 2016

Amended in Assembly March 17, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2488

Introduced by Assembly Member Dababneh

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(Coauthor: Senator Hertzberg)

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February 19, 2016

An act to amend Section 5515 of, and to add Section 2081.10 to, the Fish and Game Code, relating to fish.

LEGISLATIVE COUNSEL’S DIGEST

AB 2488, as amended, Dababneh. Protected species: unarmored threespine stickleback: taking or possession.

Existing law prohibits the taking or possession of a fully protected fish, except as provided, and designates the unarmored threespine stickleback as a fully protected fish. The California Endangered Species Act prohibits the taking of an endangered or threatened species, except as specified. The Department of Fish and Wildlife may authorize the take of listed species if the take is incidental to an otherwise lawful activity and the impacts are minimized and fully mitigated.

This bill would permit the department to authorize, under the California Endangered Species Act, the take of the unarmored threespine stickleback (Gasterosteus aculeatus williamsoni) attributable to the periodic dewatering, inspection, maintenance, modification, or repair of the Metropolitan Water District of Southern California’s Foothill Feeder water supply facility from Castaic Dam to the Joseph Jensen Treatment Plant in the County of Los Angeles, as specified, if certain begin delete conditions end delete begin insert conditions, including the adoption of an adaptive management process, end insert are satisfied. begin insert The bill would require the Metropolitan Water District of Southern California, if it applies for and receives a permit under the bill, to report to the department on July 1, 2018, and every 10 years thereafter, on the effectiveness of the adaptive management process in contributing to the conservation of the unarmored threespine stickleback. end insert

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

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

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) The Foothill Feeder below Castaic Dam in the County of
Los Angeles is the primary conduit for water from the State Water
Project for the Southern California region served by the
Metropolitan Water District of Southern California. The
Metropolitan Water District of Southern California is a public
agency comprised of 26 member public agencies - 14 cities, 11
municipal water districts, and one county water authority - and
provides water to more than 19 million people in the Counties of
Los Angeles, Orange, Riverside, San Bernardino, San Diego, and
Ventura.

(b) Water supplies from the State Water Project are a critical
part of Southern California’s water supply portfolio, and any
interruption of that supply must be minimized to ensure delivery
of clean and reliable water supplies for municipal and industrial
uses, including health and human safety, and to water agencies
and cities that rely upon water supply deliveries from the
Metropolitan Water District of Southern California.

(c) Periodic dewatering, inspection, maintenance, modification,
or repair, including emergency repairs, require that all or a portion
of the Foothill Feeder be dewatered into the Santa Clara River and
certain of its tributaries where unarmored threespine stickleback
(Gasterosteus aculeatus williamsoni) may be present during these
activities. Thus, the incidental take of unarmored threespine
stickleback must be permitted for the periodic dewatering,
inspection, maintenance, modification, or repair of the Foothill
Feeder to protect Southern California water supplies.

(d)  begin delete It is the intent of the Legislature that, in the course of issuing
a permit for the incidental take of the unarmored threespine
stickleback pursuant to Section 2081.10 of the Fish and Game
Code, the Department of Fish and Wildlife should consult with
the Metropolitan Water District of Southern California to consider
feasible measures to avoid and minimize incidental take of
unarmored threespine stickleback, taking into account physical,
technological, logistical, legal, financial, and environmental
constraints. It is also the intent of the Legislature that both agencies end delete
begin insert The Department of Fish and Wildlife and the Metropolitan Water
District of Southern California end insert should consult with the United
States Fish and Wildlife Service with respect to feasible mitigation
and conservation measures begin delete to design them consistent with a
comprehensive and consistent multiagency and multiparty approach
to the long-term conservation of the species in the Santa Clara
River watershed. end delete begin insert that may be adopted pursuant to Section 2081.10
of the Fish and Game Code to design these measures to be
consistent with any state or federal wildlife agency recovery plan
adopted for the long-term conservation of the unarmored
threespine stickleback in the Santa Clara River watershed. end insert

SEC. 2.  

Section 2081.10 is added to the Fish and Game Code,
to read:

2081.10.  

(a) The department may authorize, under this chapter,
the incidental take of unarmored threespine stickleback
(Gasterosteus aculeatus williamsoni) attributable to the periodic
dewatering, inspection, maintenance, modification, or begin delete repair end delete begin insert repair,
including emergency repair, end insert of the Metropolitan Water District of
Southern California’s Foothill Feeder water supply facility from
Castaic Dam to the Joseph Jensen Treatment Plant in the County
of Los Angeles, contingent upon the fulfillment of the following
conditions:

(1) The department begin delete has determined end delete begin insert determines end insert that the
requirements of subdivisions (b) and (c) of Section 2081 are
satisfied for the take of the unarmored threespine stickleback.

(2) The department ensures that all further measures necessary
to satisfy the conservation standard of subdivision (d) of Section
2805 are incorporated into the project.

(3) The take authorization provides for the development and
implementation, in cooperation with the department, of an adaptive
management process for monitoring the effectiveness of, and
adjusting as necessary, the measures to minimize and fully mitigate
the impacts of the authorized begin delete take. The adjusted measures are
subject to Section 2052.1. end delete begin insert take and to satisfy the conservation
standard of subdivision (d) of Section 2805. end insert

(4) A biologist begin delete will be end delete begin insert who has substantial relevant experience
evaluating impacts to inland fisheries is end insert on duty whenever an
activity is conducted that may affect the unarmored threespine
stickleback.

begin insert

(5) The Metropolitan Water District of Southern California
consults with the department to consider feasible measures to
avoid and minimize incidental take of unarmored threespine
stickleback, taking into account physical, technological, logistical,
legal, financial, and environmental constraints.

end insert

(b) The take authorization shall cover any incidental take of
unarmored threespine stickleback attributable to the periodic
dewatering, inspection, maintenance, modification, or begin delete repair end delete begin insert repair,
including emergency repair, end insert of the Foothill Feeder that may occur
in the following locations:

(1) Within the Santa Clara River, from the Bouquet Canyon
Road Bridge to a point located 4,000 feet downstream of where
Commerce Center Drive, as of January 1, 2016, dead ends adjacent
to the Santa Clara River.

(2) From the confluence with the Santa Clara River upstream
to the following locations:

(A) In Charlie Canyon to a point 1,000 feet upstream of the
Foothill Feeder facility dewatering structure.

(B) In San Francisquito Creek to the Copper Hill Drive bridge.

(C) In Placerita Creek to the Hacienda Lane crossing.

(D) In Bouquet Creek to the Newhall Ranch Road Bridge.

(c) The take authorization shall also cover any incidental take
of unarmored threespine stickleback that may occur in the course
of implementing mitigation or conservation actions required in the
permit issued pursuant to subdivision (a) as may be modified
through an adaptive management plan adopted pursuant to
paragraph (3) of subdivision (a).

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(d) The permit issued pursuant to subdivision (a) shall include
conditions that cover biological and scientific considerations
including, but not limited to, criteria for the handling of stranded
fish and their replacement into the stream, the dewatering of the
Foothill Feeder, and the reasonable and feasible mimicking of
streamflows. The permit conditions shall be in substantial
compliance with the certified environmental impact report known
as the “Foothill Feeder Repair and Future Inspections Project
Environmental Impact Report, January 2005, State Clearinghouse
Number 2005071082.” The permit conditions are subject to
amendment when required by the adaptive management process
or when modified by a subsequent final environmental document
pursuant to the California Environmental Quality Act (Division
13 (commencing with Section 21000) of the Public Resources
Code).

end insert begin delete

(d)

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begin insert ( end insert begin insert e) end insert  This section shall not be construed to exempt from any other
law the periodic dewatering, inspection, maintenance, modification,
or repair of the Foothill Feeder.

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(f) If the Metropolitan Water District of Southern California
applies for and receives a permit under this Section, the district
shall report on July 1, 2018, and every 10 years thereafter, to the
department in a report that is available to the public on the
effectiveness of the adaptive management process in contributing
to the conservation of the unarmored threespine stickleback.

end insert begin delete

(e)

end delete

begin insert ( end insert begin insert g) end insert  As used in this section, “modification” does not include
alterations to expand the maximum physical capacity of the Foothill
Feeder to deliver water.

SEC. 3.  

Section 5515 of the Fish and Game Code is amended
to read:

5515.  

(a) (1) Except as provided in this section, Section
2081.6, Section 2081.7, Section 2081.10, or Section 2835, a fully
protected fish shall not be taken or possessed at any time. No
provision of this code or any other law shall be construed to
authorize the issuance of a permit or license to take a fully
protected fish, and no permit or license previously issued shall
have force or effect for that purpose. However, the department
may authorize the taking of a fully protected fish for necessary
scientific research, including efforts to recover fully protected,
threatened, or endangered species. Before authorizing the take of
a fully protected fish, the department shall make an effort to notify
all affected and interested parties to solicit information and
comments on the proposed authorization. The notification shall
be published in the California Regulatory Notice Register and be
made available to each person who has notified the department,
in writing, of his or her interest in fully protected species and who
has provided an email address, if available, or postal address to
the department. Affected and interested parties shall have 30 days
after notification is published in the California Regulatory Notice
Register to provide relevant information and comments on the
proposed authorization.

(2) As used in this subdivision, “scientific research” does not
include an action taken as part of specified mitigation for a project,
as defined in Section 21065 of the Public Resources Code.

(3) A legally imported fully protected fish may be possessed
under a permit issued by the department.

(b) The following are fully protected fish:

(1) Colorado River squawfish (Ptychocheilus lucius).

(2) Thicktail chub (Gila crassicauda).

(3) Mohave chub (Gila mohavensis).

(4) Lost River sucker (Catostomus luxatus).

(5) Modoc sucker (Catostomus microps).

(6) Shortnose sucker (Chasmistes brevirostris).

(7) Humpback sucker (Xyrauchen texanus).

(8) Owens River pupfish (Cyprinoden radiosus).

(9) Unarmored threespine stickleback (Gasterosteus aculeatus
williamsoni).

(10) Rough sculpin (Cottus asperrimus).