BILL ANALYSIS Ó
SENATE COMMITTEE ON NATURAL RESOURCES AND WATER
Senator Fran Pavley, Chair
2015 - 2016 Regular
Bill No: AB 2488 Hearing Date: June 14,
2016
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|Author: |Dababneh | | |
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|Version: |June 9, 2016 Amended |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|William Craven |
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Subject: Protected species: unarmored threespine stickleback:
taking or possession
BACKGROUND AND 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 the Department of Fish and Wildlife (DFW) to
authorize the taking of a fully protected fish species whose
conservation and management is provided for in a Natural
Communities Conservation Plan (NCCP) approved by DFW.
3) Authorizes, in two separate and unrelated projects, DFW to
issue incidental take permits of the fully protected unarmored
threespine stickleback fish, and the fully protected limestone
salamander, 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. DFW
may issue permits for incidental take of listed species if
specified conditions are met, including mitigation,
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minimization, monitoring and non-jeopardy requirements.
PROPOSED LAW
This bill would allow the Department of Fish and Wildlife to
authorize the take of unarmored threespine stickleback, a fully
protected fish species, to enable the 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.
2) 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.
3) States additional findings that the Metropolitan Water
District should consult with DFW to consider feasible
mitigation measures to avoid and minimize incidental take
of unarmored threespine stickleback, taking into account
physical, technological, logistical, legal, financial, and
environmental constraints. The findings also state that MWD
and DFW should consult with the US Fish and Wildlife
Service with regard to feasible mitigation measures for the
long-term conservation of species in the Santa Clara River
watershed.
4) Permits DFW to authorize the incidental take of
unarmored threespine stickleback under the California
Endangered Species Act (CESA), if the following conditions
are met:
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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.
1) 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.
2) Provides that the word "modification" does not include
alterations to expand the maximum physical capacity of the
Foothill Feeder to deliver water.
3) States that this bill shall not be construed to exempt
these activities from any other law.
4) Makes other conforming code changes.
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ARGUMENTS IN SUPPORT
Information provided by the author states that 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. The author interprets a
recent California Supreme Court decision to mean that live
relocation of a fully protected species is a "take" and is not
permitted under California law. This bill therefore allows DFW
to permit the incidental take of the fish for periodic
dewatering of the Foothill Feeder, for MWD to contribute to the
conservation of the species, and thus ensure reliability of
critical water supplies for Southern California. This bill
attempts to mirror previous legislative efforts dealing with
fully protected species 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.
Other supporters, including many state business associations and
local or regional water agencies, 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, like the author, these
groups argue that since live relocation of a fully protected
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,
in their view, will allow DFW to permit the incidental take of
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the fish for periodic dewatering, contribute to the conservation
of this sensitive species, and ensure reliability of the
critical water supplies to Southern California.
ARGUMENTS IN OPPOSITION
The Sierra Club has been in discussions with the sponsor and
author and several concerns are apparent from its suggested
amendments. Many of these suggestions seek clarifications to the
bill while others are policy objections.
These include:
1) Clarification that the Foothill Feeder will not be
modified in a way that expands its capacity.
2) Add in the findings that that MWD will provide all
feasible steps to avoid and minimize take of the
unarmored threespine stickleback before any incidental
take occurs.
3) Add a monitoring component to the adaptive
management process and provide that these must
substantially contribute the long-term conservation of
the unarmored threespine stickleback.
4) Delete the provision that MWD is proportionally
responsible for its impacts.
5) Qualify the provision related to the on-site
biologist to require that the biologist is independent of
MWD and DFW, not an employee of either, and has
substantial relevant experience evaluating impacts to
inland freshwater fisheries.
6) Limit take authorization to relocation of stranded
fish, provide explicit statutory direction regarding
re-location of stranded fish, re-state the provision to
avoid and minimize take, and require MWD's water releases
to mimic the natural cycles and amounts of flows in the
receiving streams.
7) Add public notice requirements.
8) Limit take authority to 5 years from the issuance of
permit; authorize DFW to renew take for one additional 5
year period after consideration of the best available
scientific information on the unarmored threespine
stickleback and data obtained pursuant to the monitoring
program and adaptive management process.
COMMENTS
1. Some opposition concerns have been addressed. The
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author's most recent amendments addressed the issue to
prohibit modifications that expand the pipe's capacity.
2. The author also added intent language (similar to the
intent language requested by the opposition) on the need to
avoid and minimize take.
3. Further, the author added intent language requiring DFW
and MWD to consult regarding those measures, and added
intent language that both of those agencies should consult
with the US Fish and Wildlife Service regarding mitigation
measures that would be consistent with a long-term
conservation strategy for species in the Santa Clara River
watershed.
4. Typically, the consultation is initiated by the permit
applicant, so the first amendment would simply reverse the
ways the parties are described in the bill so that MWD
consults with DFW rather than vice versa. (Amendment 1.)
5. The intent provisions added by the author should be
converted into operational provisions and moved into
section 2081.10. Thus, on page 2, line 29 and page 3, line
4, the amendments would delete the "intent of the
Legislature" so that the consultation provisions would
become requirements as would participation in a
comprehensive multiparty approach to the long-term
conservation of the species in the Santa Clara River
watershed. (Amendment 2).
6. The Sierra Club requested that the monitoring and
adaptive management program cross-reference a provision in
the NCCP Act, which does not seem appropriate since the
scope and scale of an NCCP is so much larger than an
incidental take permit. On the other hand, it seems
appropriate to underscore that the adaptive management
program and monitoring does comply with the conservation
standard of section 2805. (Amendment 3.) In this same
provision, the Sierra Club requested that the cross
reference to section 2052.1 be deleted. This is appropriate
because that section replicates the "rough proportionality"
provision that is already in section 2081 (b)(2).
(Amendment 4).
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7. The Sierra Club requested a series of amendments
regarding the protocols that would be followed for stranded
fish and their replacement into the stream. These requests,
even if scientifically valid, are much too specific for a
statute. However, these are the sort of topics that should
be addressed in permit conditions or protocols that are
incorporated or appended to a permit. The bill should be
amended to require consideration and possible resolution of
such questions, while at the same time providing MWD with
an exception to act in an emergency situation when
necessary. Metropolitan has an existing protocol for
mimicking streamflows and has conducted an EIR for this
project that addresses many of the issues raised by the
Sierra Club. The bill should cross-reference that document,
which is "Foothill Feeder Repair and Future Inspections
Project Environmental Impact Report, January 2005, State
Clearinghouse Number 2005071082." (Amendment 5).
8. It is important for the on-site biologist to have
relevant experience in inland freshwater fisheries, but it
is probably not Legislature's job to decide who employs
such a scientist. Staff recommends that the bill retain the
provision that a biologist be on duty whenever an activity
is conducted that may affected the unarmored threespined
stickleback, and add a provision that he or she have the
specified relevant experience, but without regard to
whether the biologist is hired by MWD or DFW or someone
else. (Amendment 6.)
9. The Sierra Club requested a different public notice
provision than what is already in place in the fully
protected fish statute, which staff does not recommend.
10. It also requested a 5 year
limit (with a possible 5 year extension) on the shelf-life
of the incidental take permit. This is a project that is
conducted every 5 years, so this amendment would have the
effect of requiring MWD to seek legislation at a minimum of
five (or 10) years. Endangered species permits are not
currently time-limited, and while this is an interesting
question, this bill is not the place to open that
discussion.
11. To address in part the
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Sierra Club's concern that the adaptive management process
and adaptive management process be linked to the long-term
conservation of the unarmored three-spined stickleback,
staff recommends an amendment requiring MWD to report to
DFW every 10 years (in a publicly available document) on
the de-watering program, the effect on the species and all
information on the adaptive management and monitoring
program. (Amendment 7.)
SUGGESTED AMENDMENTS
AMENDMENT 1
Reverse the order of the parties regarding consultation.
AMENDMENT 2
Page 2, line 29 and page 3, line 4, the amendments would
delete the "intent of the Legislature"
AMENDMENT 3
Page 3, line 30, add "and meet the conservation standard of
section 2085(d)."
AMENDMENT 4
Page 3, line 31, delete sentence
AMENDMENT 5
Add provision in 2081.10(c) for a protocol or permit
conditions document to establish criteria for stranded fish,
replacing them into the stream, the dewatering of the
Foothill Feeder, the reasonable mimicking of streamflows, as
well as other biological or scientific considerations, and that
these permit conditions are in substantial
compliance with the certified EIR which is Foothill Feeder
Repair and Future Inspections Project Environmental Impact
Report,
January 2005, State Clearinghouse Number 2005071082.
AMENDMENT 6
Page 3, line 32: To the provision that a biologist shall be
on duty, add that the biologist
must have substantial relevant experience evaluating impacts to
inland
freshwater fisheries.
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AMENDMENT 7
Page 4, line 21, add a new (f): MWD shall report every 10
years in a report to DFW that is available to the
public on the effectiveness of the adaptive management
process and the monitoring program in contributing to the
conservation of the unarmored three spined stickleback.
SUPPORT
Association of California Water Agencies
California Business Industry Association
California Council for Environmental and Economic Balance
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
Employees Association of Metropolitan Water District, AFSCME
Local 1902
El Monte/South El Monte Chambers of Commerce
Elsinore Valley Municipal Water District
Gateway Chamber Alliance
Inland Action
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
Valley Industry and Commerce Association
Ventura County Economic Development Association
Western Municipal Water District
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OPPOSITION
Sierra Club California
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