BILL ANALYSIS Ó AB 2488 Page 1 Date of Hearing: April 27, 2016 ASSEMBLY COMMITTEE ON APPROPRIATIONS Lorena Gonzalez, Chair AB 2488 (Dababneh) - As Amended April 14, 2016 ----------------------------------------------------------------- |Policy |Water, Parks and Wildlife |Vote:|14 - 0 | |Committee: | | | | | | | | | | | | | | |-------------+-------------------------------+-----+-------------| | | | | | | | | | | | | | | | ----------------------------------------------------------------- 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: AB 2488 Page 2 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 AB 2488 Page 3 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. AB 2488 Page 4 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 Page 5