BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2488


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          Date of Hearing:  April 27, 2016


                        ASSEMBLY COMMITTEE ON APPROPRIATIONS


                               Lorena Gonzalez, Chair


          AB  
          2488 (Dababneh) - As Amended April 14, 2016


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          |Policy       |Water, Parks and Wildlife      |Vote:|14 - 0       |
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          Urgency:  No  State Mandated Local Program:  NoReimbursable:  No


          SUMMARY:


          This bill allows the Department of Fish and Wildlife (DFW) to  
          authorize the incidental take of unarmored threespine  
          sickleback, a fully protected fish species, associated with  
          activities necessary for the maintenance of the Foothill Feeder  
          water supply facility in southern California.


          FISCAL EFFECT:








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          DFW costs are absorbable.


          COMMENTS:


          1)Purpose. Approximately every 5 years, the Metropolitan Water  
            District of Southern California (MWD) shuts down and drains  
            the Foothill Feeder to repair any damage and reinforce the  
            structure.  Several of the drainage areas along the pipeline  
            route may contain populations of unarmored threespine  
            stickleback which is listed as endangered under both federal  
            and state law, and is also protected under state 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 state law.   According to the author, this  
            bill will allow DFW to permit the carefully managed incidental  
            take of fish for the periodic dewatering of the Foothill  
            Feeder.   


          2)Background.  The unarmored threespine stickleback, 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; Bouquet Creek; and Soledad  
            Canyon Creek.  The U.S. Fish and Wildlife Service (USFWS) and  
            DFW drafted a joint Recovery Plan in 2012 to address the  
            declining species.


            The Foothill Feeder facility, owned and operated by MWD, is  
            one of the primary water conveyance pipelines for State Water  








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            Project deliveries to the 19 million people served by MWD.  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.   The courts have  
            interpreted that the relocation of live species constitutes a  
            take.  Thus, live relocation of a fully protected fish species  
            is not 


          3)Fully Protected Species.  Legislative and regulatory efforts  
            to protect fish and wildlife began long before the enactment  
            of CESA in 1970.  Initial efforts date back to 1909, including  
            laws to protect nongame birds (1909) and sea otters (1913).  



            In 1957, efforts to identify and provide additional protection  
            for rare animals or animals facing possible extinction  
            resulted in lists identifying fish, mammals, amphibians, birds  
            and reptiles. Statutes were enacted to prohibit any take of  
            the identified species.


            Unlike species that are listed as threatened or endangered  
          under CESA, the fully protected species law does not allow for  
          incidental or accidental take nor does it provide for  
          mitigation. Fully Protected species may not be taken or  
          possessed at any time, and no licenses or permits may be issued  
          for their take except for scientific research or the relocation  
          of bird species for the protection of livestock.


            Although most fully protected species have also been listed as  
          threatened or endangered                                     
          species under the more recent, science-based endangered species  
          laws, lawful take and                                        
          mitigation provisions do not apply.








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          4)Prior and related legislation: AB 353 (Lackey), Chapter 620,  
            Statutes of 2015, authorized DFW to allow the take of a fully  
            protected fish species known as the unarmored threespine  
            stickleback for a habitat restoration project on Bouquet  
            Creek.


            AB 1973 (Olsen), Chapter 121, Statutes of 2012, authorized DFW  
            to allow incidental take of the limestone salamander, a fully  
            protected amphibian species for a highway restoration project  
            in Mariposa County. 


            This year, both AB 1845 (Dahle) and AB 2001(Mathis) authorize  
            the take of a fully protected fish species.  AB 1845 allows  
            the DFW to authorize the take of rough sculpin, a fully  
            protected fish, resulting from the repair of Spring Creek  
            Bridge in Shasta County.   AB 2001 authorizes take for  
            scientific research or for recovery efforts.  Both bills  
            passed this Committee.


            In order to allow essential projects to move forward, as well  
            as provide for species protection and recovery, the  
            Legislature may wish to consider adopting a comprehensive,  
            science-based approach for fully protected species within the  
            provisions of CESA.





          Analysis Prepared by:Jennifer Galehouse / APPR. / (916)  
          319-2081












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