Amended in Senate June 17, 2014

Amended in Assembly May 23, 2014

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 begin delete Fund end delete begin insert Account end insert 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 begin delete project. end delete begin insert projects, but not to exceed fees adopted by the department for standard lake or streambed alteration agreements for projects of comparable cost. end insert Moneys in the account would be available to the department, upon begin delete appropriation, end delete begin insert appropriation by the Legislature, end insert 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.

begin delete

(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.

end delete begin delete

(5)

end delete

begin insert ( end insert begin insert 4) 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

(6)

end delete

begin insert ( end insert begin insert 5) 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 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) “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,
and subsequent amendments or updates to either document.

(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, 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. begin insert For purposes of this paragraph, “seasonal dam” means
a dam that is no larger than 25 feet in height and 50-acre feet in
designed impoundment capacity. end 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.

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

(6) Sediment source reduction on existing begin delete roads, end delete begin insert roads and
trails, end insert 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.

(9)   begin delete Installation of fencing and associated alternative stockwater
supply infrastructure for the purpose of excluding end delete begin insert Excluding end insert or
managing livestock to protect the bed and banks of streams, or
other sensitive begin delete habitats. end delete begin insert habitats, using wildlife friendly fencing
and associated alternative stockwater supply based upon an
existing water right. end insert begin insert For purposes of this paragraph,
wildlife-friendly fencing means fencing that allows for the
movement of species indigenous to the area, including those species
that normally migrate or move through the project area. end insert

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

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

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

(13)  Restoration and begin delete maintenance end delete begin insert maintenance, including
spillway repair and sediment removal, end insert of begin insert an end insert existing off-stream
begin delete ponds, including spillway repair and sediment removal, to benefit
native amphibian and other species. end delete begin insert pond or a livestock stockpond
subject to a water right obtained pursuant to Article 2.7
(commencing with Section 1228) of Chapter 1 of Part 2 of Division
2 of the Water Code, to benefit native aquatic species and their
habitat. end insert

begin delete

(14) 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 other
department-identified habitat and related species recovery actions,
as determined by the director.

end delete

(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.

begin delete

1652.  

(a) Notwithstanding any other law, the director shall
approve a habitat restoration or enhancement project if

end delete

begin insert

begin insert 1652. end insert   

end insert begin insert

(a) (1) Before a project proponent submits a written
request to the director pursuant to subdivision (b), the project
proponent may request a meeting with the department to discuss
the project proposal, required information, and the application
process.

end insert begin insert

(2) If a project proponent requests a meeting pursuant to
paragraph (1), the department shall inform the project proponent
whether any plan would be required to be submitted for the project
pursuant to subdivision (d).

end insert begin insert

(b) A project proponent may submit a written request to approve
a habitat restoration or enhancement project to the director.

end insert begin insert

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

end insert begin insert

(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.

end insert begin insert

(2) A full description of the habitat restoration and enhancement
project that includes the designs and techniques to be used for the
project, restoration or enhancement methods, an estimate of
temporary restoration- or enhancement-related disturbance,
project schedule, anticipated maintenance activities and how the
project is expect to result in a net benefit to any affected habitat
and species, consistent with paragraph (4) of subdivision (e).

end insert begin 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.

end insert begin insert

(4) A description of the environmental protection measures
incorporated into the project design, such as appropriate seasonal
work limitations, measures to avoid and minimize impacts to water
quality and potentially present species protected by state and
federal law, and the use of qualified professionals for standard
preconstruction surveys where protected species are potentially
present, so that no potentially significant adverse effects on the
environment, as defined in Section 15382 of Title 14 of the
California Code of Regulations, are likely to occur with application
of the specified environmental protection measures.

end insert begin insert

(5) Substantial evidence to support a conclusion that the project
meets the requirements set forth in this section. Substantial
evidence shall include references to relevant design criteria and
environmental protection measures found in the documents
specified in paragraph (4) of subdivision (e).

end insert begin insert

(6) Engineering plans of the project if the project proponent
proposes a project to modify an existing levee or dike or if the
project proposes to modify, replace, or remove existing fish
passage barriers.

end insert begin insert

(7) Engineering or landscape architectural plans, or both,
required by the department pursuant to subdivision (d).

end insert begin insert

(d) The department may require a project proponent to submit
in the written request the following plans depending on the size
and scope of the project:

end insert begin insert

(1) Landscape architectural plans or engineering plans, or both,
for a project whose primary purpose is described in paragraph
(2) of subdivision (b) of Section 1651.

end insert begin insert

(2) Engineering plans for a project whose primary purpose is
described in paragraph (4) of subdivision (b) of Section 1651.

end insert

begin insert (e) end insert begin insert   end insert begin insert Notwithstanding any other law, within 60 days after receiving
a written request to approve a habitat restoration or enhancement
project, the director shall approve a habitat restoration or
enhancement project if the director determines that the written
request includes all of the required information set forth in
subdivision (c), end insert the project will maintain existing levels of human
health and safety protection, including, but not limited to, flood
protection, and begin insert the project end insert meets all of the following requirements:

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

begin insert

(2) The project is not part of a regulatory permit for a
nonhabitat restoration or enhancement construction activity, a
regulatory settlement, a regulatory enforcement action, or a court
order.

end insert begin delete

(2)

end delete

begin insert (3) end insert  The project is no larger than five acres in size, measured by
calculating the direct area of construction and construction-related
impact. begin insert The maximum length of stream that may be dewatered is
1,000 feet. For purposes of this paragraph, “dewater” means to
temporarily remove or divert, or both, groundwater, standing
water, or streamflow to allow for project construction such that
downstream water quality and flows are maintained. end insert

begin delete

(3)

end delete

begin insert (4) end insert  The project is consistent with, or identified in, begin insert sources that
describe best available restoration and enhancement
methodologies, including end insert one or more of the following:

(A) Federal- and state-listed species recovery plans or published
protection measures, begin insert programmatic and individual project end insert
biological opinions, or previously approved department agreements
and begin delete permits. end delete begin insert permits issued for habitat restoration or enhancement
projects. end insert

(B) 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.

begin delete

(4)

end delete

begin insert (5) end insert  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.

begin insert

(f) If the director determines that the written request does not
contain all of the information required by subdivision (c), or fails
to meet the requirements set forth in subdivision (e), or both, the
director shall deny the written request and inform the project
proponent of the reason or reasons for the denial.

end insert begin delete

(b)

end delete

begin insert (g) end insert  The director’s approval of a habitat restoration or
enhancement project pursuant to subdivision begin delete (a) end delete begin insert (e) end insert 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.

begin delete

(c)

end delete

begin insert (h) end insert  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.

begin delete

(d)

end delete

begin insert (i) end insert  The director’s approval of a habitat restoration or
enhancement project pursuant to subdivision begin delete (a) end delete begin insert (e) end insert 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

(e) Within 60 days after the director receives a written request
to approve a habitat restoration or enhancement project, the director
shall determine whether the written request includes all of the
required information set forth in subdivision (f).

(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 designs and techniques to be used for the
project, 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 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, such
that no potentially significant negative effects on the environment,
as defined in Section 15382 of Title 14 of the California Code of
Regulations, 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 requirements set forth in this section. Substantial
evidence shall include references to relevant design criteria and
environmental protection measures found in the documents
specified in paragraph (3) of subdivision (a).

(g)

end delete

begin insert (j) end insert   begin insert (1) end insert begin insert   end insert During project implementation, the project proponent
shall notify the department within begin delete seven days end delete begin insert 48 hours end insert of any
minor amendments to the begin delete project necessary for improving the
project’s habitat restoration and enhancement outcome or further
avoidance of impacts. end delete begin insert project. end insert

begin insert

(2) A minor amendment shall not create potentially significant
environmental impacts, trigger other permit requirements, or
change the scope of the project as a whole.

end insert begin insert

(3) For purposes of this subdivision, “minor amendment” means
an action necessary for improving the project’s habitat restoration
or enhancement outcome or for further avoidance of impacts.

end insert begin delete

(h)

end delete

begin insert (k) end insert  (1) If the director determines at any time that the project is
no longer consistent with subdivision begin delete (a), end delete begin insert (e), end insert 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 begin delete (a) end delete begin insert (e) end insert 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 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 begin insert department administration
and permitting of end insert projects and begin delete programs. end delete begin insert programs included in
this chapter. end insert

(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 begin delete project. end delete begin insert projects, 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. end insert

(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.