BILL NUMBER: AB 2193 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 2, 2014
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.
(3) Recovery of listed species depends largely on significant
improvements in habitat quality and requires numerous habitat
restoration projects statewide.
(3)
(4) 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)
(5) 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)
(6) 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 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)
(a) "Fish passage guidelines" means those
guidelines specified in the department's California Salmonid
Stream Habitat Restoration Manual, and 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. and subsequent
amendments or updates to either document.
(c)
(b) "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 bank, lake, or
other waterway revegetation, the primary purpose of which is to
improve habitat.
(2) Stream or river bank stabilization with native vegetation or
other predominantly nonrock 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) 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.
(4)
( 5) Placement or installation of anchored
and unanchored large wood, rootwads rootwads,
spawning gravel, and other in-stream habitat structures
or materials 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) 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.
(7) Upland erosion control using bioengineering techniques and
native revegetation for the purpose of improving water or habitat
quality for species.
(8) Control and removal of aquatic and terrestrial invasive plant
species.
(6)
( 9) Installation of fencing and
associated alternative stockwater supply infrastructure for the
purpose of excluding or managing livestock to protect the bed and
banks of streams, or other sensitive habitats.
(7)
(10) Restoration of freshwater and tidal hydrologic
functions in wetlands and estuaries to improve fish and wildlife
habitat.
(8)
(11) Creation of off-channel habitat to restore
historic rearing and flow refugia for native fisheries and other
aquatic species.
(9)
(12) Restoration of floodplains to restore natural
hydrologic function, including including, but
not limited to, levee and dike setback and breaching.
(10)
(1 3) Restoration and maintenance of
existing off-stream ponds ponds, including
spillway repair and sediment removal, to benefit native
amphibian and other species.
(11)
(1 4) Other habitat restoration projects
requiring permits from the department whose primary purpose is to
recover listed species, and are included in a state or federal
species recovery plan or priority other
department-identified habitat and related species recovery
actions, as determined by the director.
(d)
( c) "Project proponent" means a person,
public agency, or nonprofit organization seeking to implement a
habitat restoration or enhancement project.
(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.
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. is
no larger than five acres in size, measured by calculating the direct
area of construction and construction-related impact.
(3) The project complies with is
consistent with, or identified in, one or more of the
following:
(A) Adopted Federal- and state-listed
species recovery plans. plans or
published protection measures, biological opinions, or previously
approved department agreements and permits.
(B) Fish Department and National Marine
Fisheries Service fish screening criteria or 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, agreement, 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) 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.
(c)
( d) 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)
( e) 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), project, the
director shall determine whether substantial evidence exists
that the project is consistent with subdivision (a).
the written request includes all of the required information set
forth in subdivision (f).
(e)
( f) 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
designs and techniques to be used for the project,
restoration restoration- or enhancement methods,
an estimate of temporary restoration or enhancement-related
disturbance, project schedule, anticipated maintenance
activities, and how the project will result in a net benefit to
any affected species. habitat and species,
consistent with paragraph (3) of subdivision (a).
(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 such 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. are likely to
occur with the application of the specified environmental protection
measures.
(5) Substantial evidence to support a conclusion that the project
meets the criteria requirements set
forth in this section. Substantial evidence shall cite
include references to relevant design criteria
and environmental protection measures found in the documents
specified in paragraph (3) of subdivision (a).
(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.
(f)
( h) (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 receiving the project proponent's
objection pursuant to 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.