BILL ANALYSIS Ó
AB 2488
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Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 2488
(Dababneh) - As Amended March 31, 2016
SUBJECT: Protected species: unarmored threespine stickleback;
taking or possession
SUMMARY: Permits the Department of Fish and Wildlife (DFW) to
authorize the take of unarmored threespine stickleback, a fully
protected fish species, attributable to maintenance of the
Metropolitan Water District (MWD) of Southern California's
Foothill Feeder water supply facility. Specifically, this bill:
1)States legislative findings and declarations regarding the
Foothill Feeder pipeline below Castaic Dam in the County of
Los Angeles, which is the primary conduit for water from the
State Water Project to the southern California region served
by MWD, the importance of the water supplies for the 19
million people served by MWD, and the periodic maintenance
activities and dewatering that must occur to protect Southern
California water supplies. States further findings that an
incidental take permit is needed because these periodic
activities require that all or a portion of the Foothill
Feeder be dewatered into the Santa Clara River where unarmored
threespine stickleback may be present.
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2)Permits DFW to authorize the incidental take of unarmored
threespine stickleback under the California Endangered Species
Act (CESA), if the following conditions are met:
a) The DFW determines that specified requirements of
CESA are met, including that the take is incidental to an
otherwise lawful activity, the impacts are minimized and
fully mitigated, adequate funding is provided for
monitoring, and the take permit will not jeopardize the
continued existence of the species.
b) The DFW ensures all further measures necessary to
contribute to conservation of the species, as defined
under the Natural Communities Conservation Plan (NCCP)
Act, are incorporated into the project.
c) The take authorization provides for development and
implementation, in cooperation with the DFW, of an
adaptive management process for monitoring and adjusting
measures as necessary.
3)Provides that the take authorization shall cover any
incidental take attributable to activities that occur within
and adjacent to the Santa Clara River and certain tributaries,
as specified and described in this bill. Further provides
that 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, and as those actions may be modified
through the adaptive management plan required.
4)States that this bill shall not be construed to exempt these
activities from any other law.
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5)Makes other conforming code changes.
EXISTING LAW:
1)Prohibits the taking or possession of a species listed as a
fully protected fish except as specified. The species that
are classified as fully protected fish include but are not
limited to the unarmored threespine stickleback.
2)Permits DFW to authorize the taking of a fully protected fish
species whose conservation and management is provided for in
an NCCP approved by DFW.
3)Permits 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, non-jeopardy, and
conservation.
4)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, monitoring and non-jeopardy requirements.
FISCAL EFFECT: Unknown
COMMENTS: This bill authorizes the DFW to issue an incidental
take permit for activities related to routine maintenance and
repair, including dewatering, of the Foothill Feeder pipeline in
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Southern California, in order to authorize MWD to capture and
relocate unarmored threespine stickleback, a fully protected
fish species, if certain specified conditions are met, including
mitigation and contribution towards recovery of the species.
1)Author's Statement: Approximately every 5 years, MWD shuts
down and drains the Foothill Feeder to repair any damage or
reinforce the structure. Several of the drainage areas along
the pipeline route may contain populations of unarmored
threespine stickleback, a two to three inch fish that is
listed as endangered under both federal and state endangered
species acts, and also protected under California law as a
fully protected fish species. A recent California Supreme
Court decision held that live relocation of a fully protected
species is a "take" and is not permitted under California law.
This bill will allow DFW to permit the carefully managed
incidental take of the fish for periodic dewatering of the
Foothill Feeder, contribute to the conservation of the
species, and ensure reliability of critical water supplies for
Southern California. This bill attempts to mirror previous
legislative efforts and also incorporates aspects of a
conservation standard. MWD's Foothill Feeder is one of the
primary conveyance pipelines for State Water Project water
supplies to customers primarily in Ventura and Los Angeles
Counties. This bill will permit DFW to authorize incidental
take of the fish to allow periodic dewatering of the pipeline
for scheduled inspections, maintenance, and repairs, as well
as for unplanned circumstances.
2)Background: The unarmored threespine stickleback,
Gasterosteus aculeatus williamsoni, is a state and federally
listed endangered species and a State of California Fully
Protected Species. Unarmored threespine stickleback have a
very limited distribution, with the southern California
population represented in only three drainages: Upper Santa
Clara River (extremely limited), Bouquet Creek (extremely
limited) and Soledad Canyon Creek (possibly extirpated).
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These declining populations have driven a joint Recovery Plan
between the U.S. Fish and Wildlife Service (USFWS) and DFW
drafted in 2012. The DFW and USFWS engaged in some relocation
efforts in 2014. Extreme drought conditions have exacerbated
the status of the dwindling populations in the Santa Clara
River and monitoring for the fish in pools continued in 2015.
The Legislature has recently considered similar requests for
exceptions to allow take of fully protected species for
specific projects. The most related bill was AB 353 (Lackey),
Chapter 620, Statutes of 2015, which also authorized take of
unarmored threespine stickleback for a road project in
Mariposa County. These other bills included provisions
requiring compliance with CESA conditions for mitigation,
minimization, avoidance of jeopardy, and monitoring, and
required that the project include measures to meet a
conservation standard. This bill includes similar protective
provisions, however, with regard to the requirement to meet a
conservation standard for recovery, this bill only requires
that measures be taken that contribute toward conservation of
the species, as opposed to meeting the conservation standard.
AB 353 required that the take authorization include
development and implementation, in cooperation with state and
federal agencies, of an adaptive management process that
substantially contributes to the long-term conservation of the
unarmored threespine stickleback. AB 353 also required the
DFW to ensure that all further measures necessary to satisfy
the conservation standard were met. AB 1845 (Dahle), a bill
which was heard in and passed this committee on March 29,
2016, similarly requires that DFW ensure that all further
measures necessary to satisfy the conservation standard of
subdivision (d) of Section 2805 are incorporated into the
project. Conservation, as defined under that section, is
essentially a recovery standard, and includes the use of
methods and procedures necessary to bring the species to the
point at which listing under endangered species acts will not
be necessary.
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3)Prior and Related Legislation: AB 353 (Lackey), Chapter 620,
Statutes of 2015, permitted DFW to authorize take of 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.
AB 1973 (Olsen), Chapter 121, Statutes of 2012, permitted 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 2001 (Mathis) of this Session would authorize the take of a
fully protected fish for scientific research or for efforts to
recover the species. AB 2001 recently passed this committee
on consent.
4)Support Arguments: Supporters emphasize the Foothill Feeder
is one of the primary water conveyance pipelines for State
Water Project deliveries to the 19 million people served by
the MWD. They note that maintenance and repairs to the
facility require that MWD shut down and periodically drain
water into tributaries that may contain the unarmored
threespine stickleback. To avoid impacts to the fish species,
MWD extended the time for dewatering in order to lessen
changes in stream flows, utilized federally permitted
biologists to install nets and monitor dewatering around the
clock, and proposed to relocate stranded fish back into the
stream. However, since live relocation of a fully protected
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species has been interpreted by the courts to constitute
"take" of the species, live relocation has not been permitted
during routine maintenance of the Foothill Feeder facility.
This bill will allow DFW to permit the carefully managed
incidental take of the fish for periodic dewatering,
contribute to the conservation of this sensitive species, and
ensure reliability of the critical water supplies to Southern
California.
5)Opposition Arguments: None received.
6)Suggested Committee Amendment: Similar bills recently enacted
by the Legislature authorizing take of fully protected species
have included requirements for an adaptive management plan
that substantially contributes to the long term conservation
of the species, and have required that the permit include
measures that will fully meet the conservation standard
included in an NCCP. The take permit authorized under this
bill is for ongoing activities that will occur repeatedly at
least every five years. For these reasons and for consistency
with the standards incorporated into similar bills recently
enacted by the Legislature, it is recommended that this bill
be amended, on page 3, beginning with lines 4-5, to read as
follows:
(2) The department ensures that all further measures necessary
to contribute to conservation as defined in satisfy the
conservation standard of subdivision (d) of Section 2805 are
incorporated into the project.
(3 ) A biologist will be on duty whenever an activity is
conducted that may affect the unarmored threespine
stickleback .
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REGISTERED SUPPORT / OPPOSITION:
Support
Calleguas Municipal Water District
Central City Association of Los Angeles
Cerritos Regional Chamber of Commerce
Chambers of Commerce Alliance, Ventura & Santa Barbara Counties
Coachella Valley Water District
Cucamonga Valley Water District
Desert Water Agency
Eastern Municipal Water District
El Monte/South El Monte Chambers of Commerce
Elsinore Valley Municipal Water District
Gateway Chamber Alliance
Inland Action
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La Verne Chamber of Commerce
Las Virgenes Municipal Water District
Mesa Water District
Metropolitan Water District of Southern California
Municipal Water District of Orange County
Oxnard Chambers of Commerce
Southern California Contractors Association
Southern California Water Committee
Southwest California Legislative Council
Southwest Riverside County Association of Realtors
Three Valleys Municipal Water District
United Chambers of Commerce
Upper San Gabriel Valley Municipal Water District
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Valley Industry and Commerce Association
Western Municipal Water District
Opposition
None on file.
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096