Amended in Assembly April 2, 2014

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 amended, 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.

begin insert

(3) Recovery of listed species depends largely on significant
improvements in habitat quality and requires numerous habitat
restoration projects statewide.

end insert begin delete

(3)

end delete

begin insert (4) end insert  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.

begin delete

(4)

end delete

begin insert (5) end insert  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.

begin delete

(5)

end delete

begin insert (6) end insert  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 begin delete California-projects end delete begin insert California - end insert begin insert projects end insert
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:

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(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.

end delete begin delete

(b)

end delete

begin insert (a) end insert  “Fish passage guidelines” means begin insert those guidelines specified
in end insert the department’s California Salmonid Stream Habitat Restoration
Manual, begin insert and end insert the National Marine Fisheries Service, Southwest
Region, Guidelines for Salmonid Passage at Stream Crossings, begin delete 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. end delete begin insert and subsequent amendments or updates
to either document. end insert

begin delete

(c)

end delete

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

(1) Stream or river begin delete bank end delete begin insert bank, lake, or other waterway end insert
revegetation, the primary purpose of which is to improve habitat.

(2) Stream or river bank stabilization with native vegetation or
other begin insert predominantly nonrock end insert 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.

begin insert

(4) Modifications of existing water diversion infrastructure to
enhance stream flow and improve fish habitat and survival,
including, but not limited to, pump relocation or removal and fish
screen installation, operation, and maintenance, when the project
does not increase total water diversion.

end insert begin delete

(4)

end delete

begin insert ( end insert begin insert 5) end insert  Placement or installation of anchored and unanchored large
wood, begin delete rootwads end delete begin insert rootwads, spawning gravel, end insert and other in-stream
habitat structures begin insert or materials end insert that benefit native fish by enhancing
habitat, increasing stream channel complexity, or both.

begin delete

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

end delete begin insert

(6) Sediment source reduction on existing roads, including
outsloping, berm removal, installation of rolling dips, culvert and
drainage upgrades, road decommissioning, and other techniques
designed to improve water quality and habitat for species.

end insert begin insert

(7) Upland erosion control using bioengineering techniques
and native revegetation for the purpose of improving water or
habitat quality for species.

end insert begin insert

(8) Control and removal of aquatic and terrestrial invasive
plant species.

end insert begin delete

(6)

end delete

begin insert ( end insert begin insert 9) end insert  Installation of fencing begin insert and associated alternative stockwater
supply infrastructure end insert for the purpose of excluding or managing
livestock to protect the bed and banks of streams, or other sensitive
habitats.

begin delete

(7)

end delete

begin insert (10) end insert  Restoration of freshwater and tidal hydrologic functions
in wetlands and estuaries to improve fish and wildlife habitat.

begin delete

(8)

end delete

begin insert (11) end insert  Creation of off-channel habitat to restore historic rearing
and flow refugia for native fisheries and other aquatic species.

begin delete

(9)

end delete

begin insert (12) end insert  Restoration of floodplains to restore natural hydrologic
function, begin delete including end delete begin insert including, but not limited to, end insert levee and dike
setback and breaching.

begin delete

(10)

end delete

begin insert (1 end insert begin insert 3) end insert  Restoration and maintenance of existing off-stream begin delete ponds end delete
begin insert ponds, including spillway repair and sediment removal, end insert to benefit
native amphibian and other species.

begin delete

(11)

end delete

begin insert (1 end insert begin insert 4) end insert  Other habitat restoration projects requiring permits from
the department whose primary purpose is to recover listed species,
and are included in a begin insert state or federal end insert species recovery plan or
begin delete priority end delete begin insert other department-identified end insert habitat and related species
recovery actions, as determined by the director.

begin delete

(d)

end delete

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

begin insert

(d) “Species recovery plan” means a guidance document
prepared 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.

end insert

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 begin delete meets the requirements of Section 15333 of Title
14 of the California Code of Regulations. end delete begin insert is no larger than five
acres in size, measured by calculating the direct area of
construction and construction-related impact. end insert

(3) The project begin delete complies with end delete begin insert is consistent with, or identified
in, end insert one or more of the following:

(A)  begin delete Adopted end delete begin insert Federal- and state-listed end insert species recovery begin delete plans. end delete
begin insert plans or published protection measures, biological opinions, or
previously approved department agreements and permits. end insert

(B)  begin delete Fish end delete begin insert Department and National Marine Fisheries Service
fish screening criteria or fish end insert 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, begin insert agreement, end insert 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.

begin insert

(c) Nothing in this chapter shall be construed as expanding the
scope of projects requiring a permit, agreement, license, or other
approval issued by the department.

end insert begin delete

(c)

end delete

begin insert ( end insert begin insert d) end insert  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.

begin delete

(d)

end delete

begin insert ( end insert begin insert e) end insert  Within 60 days after the director receives a written request
to approve a habitat restoration or enhancement begin delete project containing
the information required pursuant to subdivision (e), end delete begin insert project, end insert the
director shall determine whether begin delete substantial evidence exists that
the project is consistent with subdivision (a). end delete begin insert the written request
includes all of the required information set forth in subdivision
(f). end insert

begin delete

(e)

end delete

begin insert ( end insert begin insert f) end insert  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 begin delete design criteria end delete begin insert designs and techniques to
be end insert used for the project, begin delete restoration end delete begin insert restoration- end insert or enhancement
methods, an estimate of temporary restoration or
enhancement-related disturbance, project schedule, begin insert anticipated
maintenance activities, end insert and how the project will result in a net
benefit to any affected begin delete species. end delete begin insert habitat and species, consistent with
paragraph (3) of subdivision (a). end insert

(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, begin delete and
findings end delete begin insert such end insert that no potentially significant negative effects on
the environment, as defined in Section 15382 of Title 14 of the
California Code of Regulations, begin delete will result from the project. end delete begin insert are
likely to occur with the application of the specified environmental
protection measures. end insert

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

begin insert

(g) During project implementation, the project proponent shall
notify the department within seven days of any minor amendments
to the project necessary for improving the project’s habitat
restoration and enhancement outcome or further avoidance of
impacts.

end insert begin delete

(f)

end delete

begin insert ( end insert begin insert h) end insert  (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 begin delete the end of the objection period
in end delete begin insert receiving the project proponent’s objection pursuant to end insert
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.