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
AB 2488
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