Amended in Senate August 4, 2014

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 begin insert and repeal end insert 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 Account 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 begin delete projects, end delete begin insert a project, end insert based on the cost of begin delete a end delete begin insert the end insert project, sufficient to recover all reasonable administrative and implementation costs of the department relating to the begin delete projects, but not to exceed fees adopted by the department for standard lake or streambed alteration agreements for projects of comparable cost. end delete begin insert project. end insert Moneys in the account would be available to the department, upon appropriation by the Legislature, for the purposes of administering and implementing the Habitat Restoration and Enhancement Act. begin insert The bill would repeal the act on January 1, 2022. end insert

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.

(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) “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:

begin delete

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

(2) Stream or river

end delete

begin insert ( end insert begin insert 1) end insert begin insert   end insert begin insert Stream, river, or other waterway end insert bank stabilization with
native vegetation or other predominantly nonrock bioengineering
techniques, or both, to reduce or eliminate erosion and
begin delete sedimentation. end delete begin insert sedimentation and improve habitat. end insert

begin delete

(3)

end delete

begin insert ( end insert begin insert 2) end insert  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 begin delete permanent, flashboard, and seasonal end delete begin insert permanent or
flashboard end insert dams; weirs, sills, and aprons; and poorly designed,
undersized, or failed culverts. begin delete 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 delete

begin delete

(4)

end delete

begin insert ( end insert begin insert 3) end insert  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.

begin delete

(5)

end delete

begin insert ( end insert begin insert 4) end insert  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.

begin delete

(6)

end delete

begin insert ( end insert begin insert 5) end insert  Sediment source reduction on existing roads and trails,
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.

begin delete

(7)

end delete

begin insert ( end insert begin insert 6) end insert  Upland erosion control using bioengineering techniques and
native revegetation for the purpose of improving water or habitat
quality for species.

begin delete

(8)

end delete

begin insert ( end insert begin insert 7) end insert  Control and removal of aquatic and terrestrial invasive plant
species.

begin delete

(9)

end delete

begin insert ( end insert begin insert 8) end insert  Excluding or managing livestock to protect the bed and
banks of streams, or other sensitive habitats, using wildlife friendly
fencing and associated alternative stockwater supply based upon
an existing water right. begin delete 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 delete

begin delete

(10)

end delete

begin insert ( end insert begin insert 9) end insert  Restoration of freshwater begin delete and tidal hydrologic functions in
wetlands and estuaries end delete begin insert wetlands, excluding vernal pools, end insert to improve
fish and wildlife habitat.

begin delete

(11)

end delete

begin insert (1 end insert begin insert 0) end insert  Creation of off-channel habitat to restore historic rearing
and flow refugia for native fisheries and other aquatic species.

begin delete

(12)

end delete

begin insert (1 end insert begin insert 1) end insert  Restoration of floodplains to restore natural hydrologic
function, including, but not limited to, begin delete revegetation levee and dike
setback and breaching. end delete begin insert revegetation. end insert

begin delete

(13)

end delete

begin insert (1 end insert begin insert 2) end insert  Restoration and maintenance, including spillway repair
and sediment removal, of an existing off-stream pond begin insert that does
not exceed a diversion of 10 acre-feet per year and two acres in
surface area end insert or a livestock stockpond begin delete 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, end delete begin insert that does
not exceed a diversion of 10 acre-feet per year and end insert begin insert two acres in
surface area end insert to benefit native aquatic species and their habitat.
begin insert For purposes of this paragraph, “livestock stockpond” means a
water impoundment structure used pursuant 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. end insert

(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 insert

(e) “Wildlife friendly fencing” means fencing intended to
preclude domestic grazing and browsing stock while providing
unrestricted access for native wildlife species.

end insert

1652.  

(a)  begin delete (1) end delete begin delete   end delete 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.

begin delete

(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 delete

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

(c) 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 begin delete maintenance activities end delete begin insert activities, end insert and how
the project is begin delete expect end delete begin insert expected end insert to result in a net benefit to any
affected habitat and species, consistent with paragraph (4) of
subdivision begin delete (e). end delete begin insert (d). 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. begin insert The assessment shall include preproject
photographs of the project area that include a descriptive title,
date taken, the photographic monitoring point, and photographic
orientation. end insert

begin insert

(4) A geographic description of the project site including maps,
land ownership information, and other relevant location
information.

end insert begin delete

(4)

end delete

begin insert ( end insert begin insert 5) end insert  A description of the environmental protection measures
incorporated into the project begin delete 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, end delete begin insert design, end insert 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. begin insert Environmental
protection measures may include, but are not limited to,
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. end insert

begin delete

(5)

end delete

begin insert ( end insert begin insert 6) end insert  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 begin delete (e). end delete begin insert (d). end insert

begin delete

(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.

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

(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:

(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.

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

(e)

end delete

begin insert ( end insert begin insert d) end 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), the project will maintain existing levels of human
health and safety protection, including, but not limited to, flood
protection, and the project meets all of the following requirements:

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

(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.

(3) The project is no larger than five acres in size, measured by
calculating the direct area of construction and construction-related
impact. 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.

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

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

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

(5) 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 delete

(f)

end delete

begin insert ( end insert begin insert e) end insert  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 begin delete (e), end delete begin insert (d), end insert or both,
the director shall deny the written request and inform the project
proponent of the reason or reasons for the denial.

begin delete

(g)

end delete

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

(h)

end delete

begin insert ( end insert begin insert g) 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

(i)

end delete

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

(j)

end delete

begin insert ( end insert begin insert i) end insert  (1) During project implementation, the project proponent
shall notify the department within 48 hours of any minor
amendments to the project.

(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.

begin delete

(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 delete begin delete

(k)

end delete

begin insert ( end insert begin insert j) end insert  (1) If the director determines at any time that the project is
no longer consistent with subdivision begin delete (e), end delete begin insert (d), 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 (e) end delete begin insert (d) 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).

begin insert

(k) A project proponent shall submit a notice of completion to
the department no later than 30 days after completion of the
project. The notice of completion shall demonstrate that the project
has been carried out in accordance with the project’s description.
The notice of completion shall include a map of the project
location, including final boundaries of the restoration area or
areas and post-project photographs. Each photograph shall include
a descriptive title, date taken, photographic monitoring point, and
photographic orientation.

end insert begin insert

(l) Pursuant to Section 818.4 of the Government Code, the
department and any other state agency exercising authority under
this section shall not be liable with regard to any determination
or authorization made pursuant to this section.

end insert

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 department administration
and permitting of projects and programs included in this chapter.

(c) The department may impose a schedule of fees for begin delete projects, end delete
begin insert a project, end insert based on the cost of begin delete a end delete begin insert the end insert project, sufficient to recover
all reasonable administrative and implementation costs of the
department relating to the begin delete 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 delete begin insert project. 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.

begin insert

begin insert 1654. end insert   

This chapter shall remain in effect only until January 1,
2022, and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2022, deletes or extends that
date.

end insert