BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2488|
|Office of Senate Floor Analyses | |
|(916) 651-1520 Fax: (916) | |
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THIRD READING
Bill No: AB 2488
Author: Dababneh (D), et al.
Amended: 8/19/16 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 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.
Senate Floor Amendments of 8/19/16 are substantive amendments
that include a cross-reference to the word "feasible," authorize
the relocation of the fish into suitable habitat, requires the
permit conditions to comply with the project description and its
mitigation measures and water release plan, and add new
reporting language. The amendments also make numerous other
AB 2488
Page 2
technical changes.
ANALYSIS:
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,
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.
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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. 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:
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.
5)Provides that the take authorization shall cover any
incidental take attributable to activities that occur within
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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)States that this bill shall not be construed to exempt these
activities from any other law.
8)Adds reporting requirements for public information to be
provided by MWD.
9)Makes other conforming code changes and provisions to avoid
chaptering out with other bills.
FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to Assembly Appropriations, costs are absorbable.
SUPPORT: (Verified8/20/16)
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
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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
OPPOSITION: (Verified8/20/16)
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
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Page 6
"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
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 which have resulted in
numerous changes, since the bill was introduced, including:
1)Clarification that the Foothill Feeder will not be modified in
a way that expands its capacity.
2)Added a monitoring component to the adaptive management
process and provide that these must substantially contribute
the long-term conservation of the unarmored threespine
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stickleback.
3)Deleted as duplicative a provision that MWD is proportionally
responsible for its impacts which is already provided for in
the state endangered species act.
4)Added the provision related to the on-site biologist
5)Added provision to require MWD's water releases to mimic the
natural cycles and amounts of flows in the receiving streams.
6)Add public notice requirements.
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
8/22/16 20:37:54
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