BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2488|
|Office of Senate Floor Analyses | |
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THIRD READING
Bill No: AB 2488
Author: Dababneh (D), et al.
Amended: 6/21/16 in Senate
Vote: 21
SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/14/16
AYES: Pavley, Stone, Allen, Hertzberg, Hueso, Jackson,
Monning, Vidak, Wolk
SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8
ASSEMBLY FLOOR: 79-0, 5/5/16 (Consent) - See last page for
vote
SUBJECT: Protected species: unarmored threespine
stickleback: taking or possession
SOURCE: Author
DIGEST: This bill allows the Department of Fish and Wildlife
(DFW) 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.
ANALYSIS:
Existing law:
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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 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,
minimization, monitoring and non-jeopardy requirements.
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
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present.
3)Requires consultation between MWD and DFW and the US Fish and
Wildlife Service to consider feasible mitigation measures to
avoid and minimize incidental take of unarmored threespine
stickleback. Such mitigation measures shall be consistent with
any federal or state recovery plan for the species.
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:
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) A biologist with relevant experience is on duty whenever
an activity is conducted that may affect the species.
d) 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.
e) MWD is required to consider mitigation measures to avoid
and minimize take of the species.
5)Provides that the take authorization shall cover any
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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.
6)Provides that the word "modification" does not include
alterations to expand the maximum physical capacity of the
Foothill Feeder to deliver water.
7)Requires the permit to be in substantial compliance with a
previous environmental impact report that describes criteria
for handling of stranded fish and the reasonable and feasible
mimicking of streamflows.
8)Requires public reporting on the activities every 10 years.
9)States that this bill shall not be construed to exempt these
activities from any other law and makes other conforming code
changes.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
SUPPORT: (Verified8/1/16)
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
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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
OPPOSITION: (Verified8/1/16)
Sierra Club California
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
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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 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: Although discussions are continuing
between the stakeholders, many amendments from the Sierra Club
have already been adopted. The remaining open issues are largely
technical and include such items as a definition of "feasible,"
a consistent definition of "adaptive management" and
clarifications on the geographic boundaries of the project.
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ASSEMBLY FLOOR: 79-0, 5/5/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke,
Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley,
Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier,
Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson,
Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger
Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey,
Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes,
McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,
O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez,
Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,
Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Beth Gaines
Prepared by:William Craven / N.R. & W. / (916) 651-4116
8/3/16 18:40:29
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