California Legislature—2013–14 Regular Session

Assembly Bill No. 2193

Introduced by Assembly Member Gordon

February 20, 2014

An act to add Chapter 6.5 (commencing with Section 1650) to Division 2 of the Fish and Game Code, relating to fish and wildlife.

LEGISLATIVE COUNSEL’S DIGEST

AB 2193, as introduced, Gordon. Habitat Restoration and Enhancement Act.

Existing law establishes the Department of Fish and Wildlife in the Natural Resources Agency, administered by the Director of Fish and Wildlife. Existing law requires the director to administer various programs for the protection and conservation of fish and wildlife resources.

This bill would enact the Habitat Restoration and Enhancement Act and require the director to approve a habitat restoration or enhancement project, as defined, if specified conditions are met as determined by the director. The act would create the Habitat Restoration and Enhancement Fund within the Fish and Game Preservation Fund and authorize the department to enter into an agreement to accept funds to achieve the purposes of the Habitat Restoration and Enhancement Act and deposit those funds into that account. The act would authorize the department to impose a schedule of fees for projects, based on the cost of a project, sufficient to recover all reasonable administrative and implementation costs of the department relating to the project, but not to exceed fees adopted by the department for standard lake or streambed alteration agreements for projects of comparable cost. Moneys in the account would be available to the department, upon appropriation, for the purposes of administering and implementing the Habitat Restoration and Enhancement Act.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

(a) The Legislature finds and declares all of the
following:

(1) California is home to over 300 animal and plant species
listed as either threatened or endangered by the state and federal
governments. Some of these species’ populations are so low that
recovery actions must be taken immediately to avoid further
population declines or extinctions of the species.

(2) Historic and continued degradation of our state’s ecosystems,
whether in remote areas or in our cities, continues to impact the
habitats of these protected species and other animals and plants.

(3) Tremendous demand exists for small-scale ecosystem
restoration projects aimed to benefit these species, yet current
regulatory mechanisms do not allow many willing private
landowners and local governments to efficiently access the
necessary environmental permits.

(4) Demand for these environmentally beneficial projects far
outpaces the regulatory approval process. As a result, hundreds of
small-scale projects designed to benefit California’s most
vulnerable species and natural habitats are not being implemented.

(5) Expedited and coordinated agency permitting processes for
small-scale restoration projects have been shown to greatly boost
the number and geographic distribution of environmentally
beneficial projects across California-projects that cumulatively
improve water quality and aid in the recovery of salmon and
steelhead populations, migratory birds, and other sensitive species.

(b) It is the intent of the Legislature in enacting this measure to
provide for substantial permitting efficiency and thereby encourage
increased implementation of voluntary, environmentally beneficial,
small-scale habitat restoration projects that do all of the following:

(1) Provide an individual and cumulative net environmental
benefit.

(2) Incorporate measures to protect against any short-term
substantial, or potentially substantial, adverse change in any of the
physical conditions within the area affected by the project.

(3) Follow applicable preexisting state and federal agency
permits, certifications, and exemptions.

SEC. 2.  

Chapter 6.5 (commencing with Section 1650) is added
to Division 2 of the Fish and Game Code, to read:

 

Chapter  6.5. Habitat Restoration and Enhancement
Act

 

1650.  

This chapter shall be known, and may be cited, as the
Habitat Restoration and Enhancement Act.

1651.  

As used in this chapter:

(a) “Adopted species recovery plan” means a guidance document
published by a government agency that identifies recovery actions,
based upon the best scientific and commercial data available,
necessary for the protection and recovery of listed species.

(b) “Fish passage guidelines” means the department’s California
Salmonid Stream Habitat Restoration Manual, the National Marine
Fisheries Service, Southwest Region, Guidelines for Salmonid
Passage at Stream Crossings, either of those documents as they
may be subsequently amended or updated, or salmonid fish passage
project guidelines subsequently adopted by the department, the
National Marine Fisheries Service, or both.

(c) “Habitat restoration or enhancement project” means a project
with the primary purpose of accomplishing one or more of the
following:

(1) Stream or river bank revegetation, the primary purpose of
which is to improve habitat.

(2) Stream or river bank stabilization with native vegetation or
other bioengineering techniques, or both, to reduce or eliminate
erosion and sedimentation.

(3) Modification, replacement, or removal of existing fish
passage barriers to improve water quality and fish passage,
including associated bridge installation. Examples of fish passage
barriers include, but are not limited to, road crossings and fords,
or both; small permanent, flashboard, and seasonal dams; weirs,
sills, and aprons; and poorly designed, undersized, or failed
culverts.

(4) Placement or installation of anchored and unanchored large
wood, rootwads and other in-stream habitat structures that benefit
native fish by enhancing habitat, increasing stream channel
complexity, or both.

(5) Erosion control, invasive species removal, and native
revegetation activities for the purpose of improving water or habitat
quality for species, or both.

(6) Installation of fencing for the purpose of excluding or
managing livestock to protect the bed and banks of streams, or
other sensitive habitats.

(7) Restoration of freshwater and tidal hydrologic functions in
wetlands and estuaries to improve fish and wildlife habitat.

(8) Creation of off-channel habitat to restore historic rearing
and flow refugia for native fisheries and other aquatic species.

(9) Restoration of floodplains to restore natural hydrologic
function, including levee and dike setback and breaching.

(10) Restoration and maintenance of existing off-stream ponds
to benefit native amphibian and other species.

(11) Other habitat restoration projects requiring permits from
the department whose primary purpose is to recover listed species,
and are included in a species recovery plan or priority habitat and
related species recovery actions, as determined by the director.

(d) “Project proponent” means a person, public agency, or
nonprofit organization seeking to implement a habitat restoration
or enhancement project.

1652.  

(a) Notwithstanding any other law, the director shall
approve a habitat restoration or enhancement project if the project
will maintain existing levels of human health and safety protection,
including, but not limited to, flood protection, and meets all of the
following requirements:

(1) The project purpose is voluntary habitat restoration and is
not required as mitigation.

(2) The project meets the requirements of Section 15333 of Title
14 of the California Code of Regulations.

(3) The project complies with one or more of the following:

(A) Adopted species recovery plans.

(B) Fish passage guidelines.

(C) The department’s California Salmonid Stream Habitat
Restoration Manual.

(D) Scientifically researched studies, guidance documents, and
practice manuals that describe best available habitat restoration or
enhancement methodologies that are utilized or approved by the
department.

(4) The project will not result in cumulative negative
environmental impacts that are significant when viewed in
connection with the effects of past, current, or probable future
projects.

(b) The director’s approval of a habitat restoration or
enhancement project pursuant to subdivision (a) shall be in lieu
of any other permit, license, or other approval issued by the
department, including, but not limited to, those issued pursuant to
Chapter 1.5 (commencing with Section 2050) of Division 3,
Chapter 10 (commencing with Section 1900) of Division 2, and
Chapter 6 (commencing with Section 1600) of Division 2.

(c) The director’s approval of a habitat restoration or
enhancement project pursuant to subdivision (a) shall constitute
an action taken by a regulatory agency, as authorized by state law,
to ensure the maintenance, restoration, or enhancement of a natural
resource where the regulatory process involves procedures for the
protection of the environment.

(d) Within 60 days after the director receives a written request
to approve a habitat restoration or enhancement project containing
the information required pursuant to subdivision (e), the director
shall determine whether substantial evidence exists that the project
is consistent with subdivision (a).

(e) A written request to approve a habitat restoration or
enhancement project shall contain all of the following:

(1) The name, address, title, organization, telephone number,
and email address of the natural person or persons who will be the
main point of contact for the project proponent.

(2) A full description of the habitat restoration and enhancement
project that includes the design criteria used for the project,
restoration or enhancement methods, an estimate of temporary
restoration or enhancement-related disturbance, project schedule,
and how the project will result in a net benefit to any affected
species.

(3) An assessment of the project area that provides a description
of the existing flora and fauna and the potential presence of
sensitive species or habitat.

(4) A description of the environmental protection measures
incorporated into the project design, including, but not limited to,
measures to avoid and minimize impacts to water quality and
potentially present species protected by state and federal law, and
findings that no potentially significant negative effects on the
environment, as defined in Section 15382 of Title 14 of the
California Code of Regulations, will result from the project.

(5) Substantial evidence to support a conclusion that the project
meets the criteria set forth in this section. Substantial evidence
shall cite relevant design criteria and environmental protection
measures found in the documents specified in paragraph (3) of
subdivision (a).

(f) (1) If the director determines at any time that the project is
no longer consistent with subdivision (a), due to a material change
between the project as submitted and the project being implemented
or a change in the environmental circumstances in the area of
implementation, the director shall notify the project proponent in
writing and project implementation shall be suspended. Written
notice from the director shall be delivered in person, by certified
mail, or by electronic communication to the project proponent and
shall specify the reasons why approval of the project was
suspended. The approval for a project shall not be revoked pursuant
to this subdivision unless it has first been suspended pursuant to
this subdivision.

(2) Within 30 days of receipt of a notice of suspension, the
project proponent may file an objection with the director. Any
objection shall be in writing and state the reasons why the project
proponent objects to the suspension. The project proponent may
provide additional environmental protection measures, design
modifications, or other evidence that the project is consistent with
subdivision (a) and request that the notice of suspension should
be lifted and approval granted.

(3) The director shall revoke approval or lift the suspension of
project approval within 30 days after the end of the objection period
in paragraph (2).

1653.  

(a) The Habitat Restoration and Enhancement Account
is hereby created in the Fish and Game Preservation Fund.

(b) The department may enter into an agreement to accept funds
from any public agency, person, business entity, or organization
to achieve the purposes of this chapter. The department shall
deposit any funds so received in the account. The funds received
shall supplement existing resources for projects and programs.

(c) The department may impose a schedule of fees for projects,
based on the cost of a project, sufficient to recover all reasonable
administrative and implementation costs of the department relating
to the project, but not to exceed fees adopted by the department
pursuant to Chapter 6 (commencing with Section 1600) of Division
2 for standard lake or streambed alteration agreements for projects
of comparable cost.

(d) Moneys in the account shall be available to the department,
upon appropriation by the Legislature, for the purposes of
administering and implementing this chapter.