BILL ANALYSIS �
AB 1973
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Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
AB 1973 (Olsen) - As Introduced: February 23, 2012
SUBJECT : Fully Protected Species: Ferguson Slide Permanent
Restoration Project
SUMMARY : Authorizes the Department of Fish and Game (DFG) to
authorize the taking of two fully protected species, the
ring-tailed cat and the limestone salamander, resulting from the
Department of Transportation's (CalTrans) implementation of a
rockslide road restoration project in Mariposa County.
Specifically, this bill :
1)Provides that notwithstanding California laws prohibiting take
of fully protected species, DFG may authorize the incidental
take of limestone salamanders and ring-tailed cats resulting
from impacts attributable to CalTrans' implementation of the
Ferguson Slide Permanent Restoration Project on State Route
140 (SR 140), as described, contingent on the following
conditions:
a) CalTrans begins construction on or before January 1,
2016;
b) DFG determines that CalTrans will adopt appropriate
avoidance and mitigation measures to protect the
limestone salamander through enforceable commitments that
at a minimum include:
i. A construction window that prevents
ground-disturbing activities on the southern slope
during the salamander's active season of December to
March;
ii. Environmentally sensitive area fencing and
salamander protection exclusionary fencing, as
described, will be erected if construction-related
activities will occur adjacent to limestone
salamander habitat during their active season;
iii. A biological monitor will be onsite during
active building to inspect the worksite and all
exclusionary fencing;
iv. All ground-disturbing activities within
100 feet will cease if a limestone salamander is
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detected in an active construction site until the
animal can be safely removed from the area according
to an agreed-upon salvage plan.
c) DFG determines that CalTrans will adopt appropriate
avoidance and mitigation measures to protect the
ring-tailed cat through enforceable commitments that at a
minimum include:
i. If ground disturbance occurs during the
ring-tailed cat reproductive season of March to
August a qualified biologist will conduct a field
identification survey for active dens, and, if an
active den is located, construction activities
within 150 feet of the den will be stopped
temporarily and DFG consulted as to how to protect
the den;
ii. A biological monitor will be present
onsite during active building;
iii. If a ring-tail cat is detected in an
active construction site, all ground-disturbing
activities will cease within 150 feet of the den
until the animal can be safely removed from the
area.
d) All of the following conditions are met:
i. The requirements of specified provisions
of the California Endangered Species Act (CESA) are
met, including minimization and full mitigation of
any authorized take, and determination by DFG that
issuance of the permit will not jeopardize the
continued existence of the species.
ii. The take authorization provides for
development and implementation, in consultation
with DFG, of an adaptive management process for
monitoring and adjustments as necessary;
iii. Failure to appropriate funds does not
relieve the applicant of these obligations;
iv. Any observations of the species in the
worksite, and any accidental injury or mortality
from vehicle strikes or other means are reported to
DFG immediately and the onsite biological monitor
will notify the resident engineer who will halt work
immediately.
v. The applicable CESA requirements may be
satisfied if the take is authorized pursuant to the
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Natural Community Conservation Planning Act (NCCP).
1)Clarifies that this bill does not exempt the Ferguson Slide
Permanent Restoration Project from any other law.
EXISTING LAW :
1)Prohibits the taking or possession of any species that is
listed as protected under California's Fully Protected Species
statutes. The limestone salamander and the ring-tailed cat
are among the species listed as fully protected. Prohibits
the issuance of any permits or licenses to take any fully
protected species, with three exceptions. Exceptions include:
for scientific research; for certain activities related to the
Salton Sea and the Quantification Settlement Agreement; and
when the species is covered by an NCCP.
2)Authorizes DFG at the time of approval of an NCCP to authorize
by permit the taking of a fully protected species if it is a
covered species whose conservation and management is provided
for in the NCCP.
3)Prohibits the taking of any species that is listed as
endangered or threatened under the California Endangered
Species Act (CESA) or the federal Endangered Species Act
(ESA). Allows for the incidental take of such species
pursuant to a state or federal incidental take statement or
incidental take permit if certain conditions are met,
including that the authorized take is minimized and fully
mitigated, and the issuance of the permit will not jeopardize
the continued existence of the species.
FISCAL EFFECT : Unknown
COMMENTS : The author indicates this bill, which provides DFG
authority to issue an incidental take permit for two fully
protected species, is necessary for CalTrans to proceed with
permanent restoration of two-lane access on SR 140 in Mariposa
County through the Ferguson slide area. SR 140 provides one of
the main access routes into Yosemite National Park. On April
29, 2006 a rockslide at Ferguson Ridge caused the road to close.
Two bridges built by CalTrans are providing temporary access
for small and large vehicles but are not intended to serve as a
permanent solution. CalTrans completed a draft Environmental
Impact Report (DEIR) which looked at several alternatives, some
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but not all of which would potentially impact two fully
protected species - the ring-tailed cat and the limestone
salamander. CalTrans maintains that if construction begins
without an incidental take permit, and take of either species
occurs, it would shut down the reconstruction project and put
CalTrans at risk of lawsuits unless permits authorizing
incidental take are in place when construction begins. The
author asserts this bill will allow reconstruction and
restoration of SR 140 to occur pursuant to an incidental take
permit, while still requiring steps be taken to minimize the
take and provide mitigation. The author also notes that in
addition to providing one of the main access routes to Yosemite
National Park, reconstruction of SR 140 is essential to the
health and stability of Mariposa County's economy. The Mariposa
County Fire Department also notes that SR 140 to Mariposa is an
emergency service and evacuation route for residents of the
community of El Portal. The United States Department of the
Interior notes that SR 140 is the only all-weather highway to
and from Yosemite Valley and a major corridor for National Park
Service and concession staff.
Six different alternatives were considered for restoration of
the highway. The six alternatives include different
realignments of the highway, a bridge over the Merced River with
column supports, construction of a rock shed structure through
the slide material at the existing alignment, and construction
of a tunnel under the slide material. In addition to potential
impacts on fully protected species, there are issues of concern
with regard to potential impact on the Wild and Scenic River
designation of the Merced River which SR 140 borders. According
to correspondence from CalTrans and DFG, only two of the six
alternatives under consideration would impact the limestone
salamander which is the species of greater concern due to its
extremely limited range. The other alternatives do not impact
the limestone salamander but, according to CalTrans staff, may
impact the Wild and Scenic River designation.
Fully Protected Species Law. California's fully protected
species statutes predate the enactment of the state and federal
endangered species laws, and was the state's initial effort to
identify and protect those animals that were rare or faced
possible extinction. Many of the species on the fully protected
species lists have subsequently been listed under the federal or
state endangered species acts, however, the ringtail cat is one
of the exceptions that has not. Unlike the state and federal
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endangered species acts, California's fully protected species
statutes do not allow for issuance of incidental take permits
but instead require total avoidance of take. Some exceptions to
this prohibition have been enacted. Most notably, last year the
Legislature enacted SB 618 (Wolk), Chapter 596, Statutes of
2011, which allows a permit to be issued for incidental take of
a fully protected species as part of an NCCP if the species is a
covered species whose conservation and management is provided
for under the NCCP.
Status of the Limestone Salamander and Ring-tailed Cat. The
limestone salamander, Hydromantes brunus, in addition to its
status as a fully protected species, has been listed as a
threatened species under CESA since 1971. The species is
threatened with extinction due to, among other things, it's
extremely limited range. The limestone salamander exists only
in the Merced River Canyon in the vicinity of Briceburg and
along Bear Creek, a tributary to the Merced River. It has also
been found in Hell Hollow, at the confluence of Hell Hollow
Creek and Lake McClure. It inhabits mossy limestone crevices
and talus in the pine-oak woodlands of lower Merced Canyon and
is not known to exist anywhere else in the world. Its
population status is unknown. DFG's Limestone Salamander
Ecological Reserve in Mariposa County protects 120 acres of
limestone salamander habitat and the Bureau of Land Management
has designated 1,600 acres as the Limestone Salamander Area of
Critical Environmental Concern, which includes both confirmed
and potential limestone salamander habitat.
The ring-tailed cat, Bassariscus astutus, also known as the
Ringtail, is a small raccoon-like nocturnal animal that occurs
in riparian forests and shrub habitats. A report prepared for
DFG in 1985 indicated that the species was found throughout most
of California, that urbanization and loss of riparian
communities in California had depleted and extirpated some
populations, but that there was no evidence at that time of
threats over a broad area. DFG information from 2005 indicates
little information is available on distribution and relative
abundance among habitats, but it is not considered to be
threatened with extinction at the present time.
Is an incidental take permit necessary for a permanent
restoration project to go forward? Whether a take permit for
either or both species is necessary for a permanent restoration
project to go forward is not entirely clear. DFG, in comments
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submitted to CalTrans in 2011, did not indicate that the project
could not go forward without an incidental take permit for fully
protected species. Rather, they advised that the DEIR should
evaluate and address all potential project-related impacts, and
include appropriate species-specific avoidance and minimization
measures. The DFG also stated that the proposed mitigation
measures in the DEIR were not specific enough to be effective in
demonstrating to DFG that take would not occur. They then went
on to provide recommendations on the types of total avoidance
and minimization measures that could be included, much of which
have been included as minimum conditions for the take permit
that would be authorized by this bill. Moreover, it appears
based on subsequent discussions with DFG that take of
ring-tailed cats could be prevented through implementation and
inclusion in the final EIR of the species-specific avoidance and
minimization measures recommended by the DFG, making a take
permit for that species unnecessary. The species of greater
concern, and the one more difficult to avoid take of is the
limestone salamander due to its limited range and threatened
status.
The two alternatives DFG identified as of greatest impact to
limestone salamander are alternatives that do not cross the
river and would require disturbance of known limestone
salamander habitat on either side of the rock slide. According
to DFG, these two alternatives also increase the risk of
destabilizing the rock slide and possibly leading to further
slides in the future. CalTrans has indicated that the other
alternatives impact the Wild and Scenic river designation of the
Merced River, since they would involve construction of bridges
over the river. Whether or not impacts to the Wild and Scenic
River designation could be mitigated is unknown.
The Fully Protected Species laws have a mixed record of
enforcement. One of the primary reasons for Caltrans' desire to
seek an incidental take permit appears to be the desire to avoid
potential litigation should take of a fully protected species
occur despite implementation of species-specific avoidance and
minimization measures approved by DFG. While the fully
protected species laws set a high standard prohibiting take of
fully protected species, the laws have been in effect for over
40 years and committee staff is unaware that during that time
very many projects have been halted as a result of the law. In
fact, many other projects in California over the past 40 years
with potential impacts to fully protected species have been
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approved and constructed without a fully protected species take
permit. Such projects include but are not limited to wind
energy projects that impact fully protected species such as
golden eagles and peregrine falcons. Either the statutes have
not been enforced, allowing the take to occur, or the projects
in some instances have been able to incorporate avoidance and
minimization measures to address take issues. Fully protected
species concerns have also been an issue in the siting of desert
renewable projects. However, those concerns appear to have been
addressed through the NCCP process and implementation of
avoidance and minimization measures. In any case, there does
not appear to have been much litigation over the fully protected
species laws, although it may nevertheless be reasonable to
assume some risk of litigation exists.
Are single project exemptions from environmental laws good
public policy? As noted above, the Legislature recently enacted
a broader exemption to the fully protected species statutes for
species covered under an NCCP. That exemption aims to achieve
the objective of species recovery and conservation while also
allowing development projects that are compatible with the NCCP
to move forward. The committee may wish to consider whether
granting a single project exemption as proposed in this bill is
a good precedent for public policy.
Suggested Amendments: If the committee desires to approve this
bill, staff recommends that amendments be adopted that would
require additional steps be taken by the project proponent to
provide for mitigation and conservation of the limestone
salamander, as a condition of receiving a take permit allowing a
permanent highway restoration project to go forward. The
Legislature last year, in SB 618, approved an amendment to the
NCCP statute that allows take of fully protected species to be
approved where the species are covered under an NCCP that
provides for conservation of the species. While an NCCP may not
necessarily be a practical solution for all projects, including
projects like SR 140 since Mariposa County is not currently
participating in an NCCP, the conservation standard required
under the NCCP statute could nevertheless be applied to this
project. Such an amendment would require additional mitigation
to be taken to provide for conservation of the species within
the permit area, but without requiring an actual NCCP. To do
this, a new subsection (B) could be added on page 4, requiring
that further measures approved by DFG be incorporated into the
project plan that meet the conservation standard of an NCCP.
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Such an amendment would be consistent with the other prior
exemptions granted by the Legislature for the Salton Sea
Quantification Settlement Agreement and for projects covered by
an NCCP.
In addition, since avoidance and minimization measures can be
incorporated into the project to avoid take of ring-tailed cat,
making an incidental take permit unnecessary, it is recommended
that this bill be amended to delete references to the
ring-tailed cat, and also to strike references to exemptions
under Section 2800 since that is already allowed under existing
law.
Arguments in Support : The Mariposa County Board of Supervisors
adopted a resolution supporting this bill which finds that the
restoration of SR 140 is critical to the economic wellbeing of
Mariposa County citizens. The Regional Council of Rural
Counties believes an exception allowing take of the species
should be approved so that planning for a permanent highway
reconstruction can move forward and impacts can be minimized to
the species, noting the importance of the project for Mariposa
County, neighboring counties and the millions of visitors to
Yosemite.
Arguments in Opposition : Opponents oppose this bill unless
amended to allow for the take of limestone salamander only if
DFG first determines that issuance of an incidental take permit
will meet the conservation standard of the NCCP Act. They note
that exceptions to the Fully Protected Species statutes granted
by the Legislature in the past have allowed take only when
either the action is in furtherance of recovery of a protected
species, or the project in need of a take permit meets the
conservation or recovery standard of an NCCP. They also
recommend that the references to ring-tailed cat in the bill be
deleted since the take of ring-tailed cats can be avoided
through implementation of avoidance measures making a take
permit unnecessary. Finally, they make other technical
suggestions such as placing the amendment allowing a take permit
for this project in the NCCP Act rather than in CESA.
REGISTERED SUPPORT / OPPOSITION :
Support Opposition (Unless Amended)
Mariposa County (sponsor) Defenders of Wildlife
Regional Council of Rural Counties Sierra Club of California
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Friends of the River
California Coastal Protection
Network
Endangered Habitats League
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096