Amended in Senate August 19, 2016

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

(Coauthor: Senator Hertzberg)

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 conditions, including the adoption of an adaptive management begin delete process, end delete begin insert plan, end insert are satisfied. The bill would require the Metropolitan Water District of Southern California, if it begin delete applies for and end delete receives a permit under the bill, to report begin insert certain information end insert to the department begin delete 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 delete begin insert within 6 months after every dewatering of the Foothill Feeder. end insert

begin insert

This bill would incorporate additional changes to Section 5515 of the Fish and Game Code, proposed by AB 1845 and AB 2001, that would become operative only if this bill and either or both of those bills are chaptered and become effective on or before January 1, 2017, and this bill is chaptered last.

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 begin delete Southern end delete begin insert southern end insert 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 begin delete more than end delete begin insert approximately end insert 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 begin delete Southern end delete begin insert southern end insert 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, begin insert to protect southern California water supplies, end insert the
incidental take of unarmored threespine stickleback must be
permitted for the periodic dewatering, inspection, maintenance,
modification, or repair of the Foothill begin delete Feeder to protect Southern
California water supplies. end delete begin insert Feeder. end insert

(d)  begin delete The Department of Fish and Wildlife and the end delete begin insert During the
permit application process pursuant to Section 2081.10 of the Fish
and Game Code, the end insert Metropolitan Water District of Southern
California begin delete should end delete begin insert shall end insert consult with begin insert the Department of Fish and
Wildlife and end insert the United States Fish and Wildlife Service with
respect to feasible mitigation and conservation measures that may
be adopted pursuant to begin delete Section 2081.10 of the Fish and Game Code
to design these end delete begin insert that section. These end insert measures begin delete to end delete begin insert shall end insert 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.

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 repair,
including emergency 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, contingent upon the fulfillment of the following
conditions:

(1) The department determines 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 begin delete process end delete begin insert plan end insert for monitoring the effectiveness of, and
adjusting as necessary, the measures to minimize and fully mitigate
the impacts of the authorized take and to satisfy the conservation
standard of subdivision (d) of Section 2805.

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

(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 begin delete stickleback,
taking into account physical, technological, logistical, legal,
financial, and environmental constraints. end delete begin insert stickleback. For purposes
of this paragraph, “feasible” has the same meaning as defined in
Section 15364 of Title 14 of the California Code of Regulations. end insert

(b) The take authorization shall cover any incidental take of
unarmored threespine stickleback attributable to the periodic
dewatering, inspection, maintenance, modification, or repair,
including emergency repair, 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, begin delete dead ends end delete
begin insert dead-ends end insert 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).

(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 begin delete replacement into the stream, end delete begin insert relocation into suitable
habitat, end insert the dewatering of the Foothill Feeder, and the reasonable
and feasible mimicking of streamflows. The permit conditions
shall be in begin delete substantial end delete compliance with begin insert the project description,
mitigation measures, and release plan set forth in end insert 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 begin delete process end delete begin insert plan end insert 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).

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

(f) If the Metropolitan Water District of Southern California
begin delete applies for and end delete receives a permit under this begin delete 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 delete

begin insert section, the permit shall require the district to report to the
department within six months after every dewatering of the Foothill
Feeder. The report shall address compliance with the permit
conditions and the effectiveness of the adaptive management plan
in contributing to the conservation of the unarmored threespine
stickleback. The Metropolitan Water District of Southern California
shall ensure that each report is made available to the public. end insert

(g) 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 begin delete section, end delete begin insert section or end insert
Section 2081.6, begin delete Section end delete 2081.7, begin delete Section end delete 2081.10, or begin delete Section end delete 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).

begin insert

begin insert SEC. 3.1. end insert   

end insert

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

5515.  

(a) (1) Except as provided in this begin delete section, end delete begin insert section or end insert
Section begin insert 2081.4, end insert 2081.6, begin delete Section end delete 2081.7, begin insert 2081.10, end insert or begin delete Section end delete 2835,
a fully protected fish begin delete may end delete begin insert shall end insert 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).

begin insert

begin insert SEC. 3.2. end insert   

end insert

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

5515.  

(a) (1) Except as provided in this begin delete section, end delete begin insert section or end insert
Section 2081.6, begin delete Section end delete 2081.7, begin insert 2081.10, 2089.7, end insert or begin delete Section end delete 2835,
a fully protected fish begin delete may end delete begin insert shall end insert 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 begin delete River end delete pupfish (Cyprinoden radiosus).

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

(10) Rough sculpin (Cottus asperrimus).

begin insert

begin insert SEC. 3.3. end insert   

end insert

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

5515.  

(a) (1) Except as provided in this begin delete section, end delete begin insert section or end insert
Section begin insert 2081.4, end insert 2081.6, begin delete Section end delete 2081.7, begin insert 2081.10, 2089.7, end insert or
begin delete Section end delete 2835, a fully protected fish begin delete may end delete begin insert shall end insert 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 begin delete River end delete pupfish (Cyprinoden radiosus).

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

(10) Rough sculpin (Cottus asperrimus).

begin insert

begin insert SEC. 4. end insert   

end insert begin insert

(a) Section 3.1 of this bill incorporates amendments
to Section 5515 of the Fish and Game Code proposed by both this
bill and Assembly Bill 1845. It shall only become operative if (1)
both bills are enacted and become effective on or before January
1, 2017, (2) each bill amends Section 5515 of the Fish and Game
Code, (3) Assembly Bill 2001 is not enacted or as enacted does
not amend that section, and (4) this bill is enacted after Assembly
Bill 1845, in which case Sections 3, 3.2, and 3.3 of this bill shall
not become operative.

end insert begin insert

(b) Section 3.2 of this bill incorporates amendments to Section
5515 of the Fish and Game Code proposed by both this bill and
Assembly Bill 2001. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2017,
(2) each bill amends Section 5515 of the Fish and Game Code, (3)
Assembly Bill 1845 is not enacted or as enacted does not amend
that section, and (4) this bill is enacted after Assembly Bill 2001
in which case Sections 3, 3.1, and 3.3 of this bill shall not become
operative.

end insert begin insert

(c) Section 3.3 of this bill incorporates amendments to Section
5515 of the Fish and Game Code proposed by this bill, Assembly
Bill 1845, and Assembly Bill 2001. It shall only become operative
if (1) all three bills are enacted and become effective on or before
January 1, 2017, (2) all three bills amend Section 5515 of the Fish
and Game Code, and (3) this bill is enacted after Assembly Bill
1845 and Assembly Bill 2001, in which case Sections 3, 3.1, and
3.2 of this bill shall not become operative.

end insert