BILL NUMBER: AB 2193 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 4, 2014
AMENDED IN SENATE JUNE 17, 2014
AMENDED IN ASSEMBLY MAY 23, 2014
AMENDED IN ASSEMBLY APRIL 2, 2014
INTRODUCED BY Assembly Member Gordon
FEBRUARY 20, 2014
An act to add and repeal 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 projects, a project, based
on the cost of a the project,
sufficient to recover all reasonable administrative and
implementation costs of the department relating to the
projects, but not to exceed fees adopted by the department for
standard lake or streambed alteration agreements for projects of
comparable cost. pr oject. 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. The
bill would repeal the act on January 1, 2022.
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:
(1) Stream or river bank, lake, or other waterway revegetation,
the primary purpose of which is to improve habitat.
(2) Stream or river
( 1) Stream, river, or other
waterw ay bank stabilization with native vegetation
or other predominantly nonrock bioengineering techniques, or both,
to reduce or eliminate erosion and sedimentation.
sedimentation and improve habitat.
(3)
( 2) 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
permanent or flashboard dams; weirs, sills, and
aprons; and poorly designed, undersized, or failed culverts.
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.
(4)
( 3) 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)
( 4) 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)
( 5) 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.
(7)
( 6) Upland erosion control using
bioengineering techniques and native revegetation for the purpose of
improving water or habitat quality for species.
(8)
( 7) Control and removal of aquatic and
terrestrial invasive plant species.
(9)
( 8) 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. 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.
(10)
( 9) Restoration of freshwater and
tidal hydrologic functions in wetlands and estuaries
wetlands, excluding vernal pools, to improve fish and wildlife
habitat.
(11)
(1 0) Creation of off-channel habitat to
restore historic rearing and flow refugia for native fisheries and
other aquatic species.
(12)
(1 1) Restoration of floodplains to restore
natural hydrologic function, including, but not limited to,
revegetation levee and dike setback and breaching.
revegetation.
(13)
(1 2) Restoration and maintenance, including
spillway repair and sediment removal, of an existing off-stream pond
that does not exceed a diversion of 10 acre-feet per year and
two acres in surface area 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, that does not exceed a diversion of 10
acre-feet per year and two acres in surface area to
benefit native aquatic species and their habitat. 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.
(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.
(e) "Wildlife friendly fencing" means fencing intended to preclude
domestic grazing and browsing stock while providing unrestricted
access for native wildlife species.
1652. (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.
(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).
(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 maintenance activities
activities, and how the project is expect
expected to result in a net benefit to any affected
habitat and species, consistent with paragraph (4) of subdivision
(e). (d).
(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. The assessment shall include
preproject photographs of the project area that include a descriptive
title, date taken, the photographic monitoring point, and
photographic orientation.
(4) A geographic description of the project site including maps,
land ownership information, and other relevant location information.
(4)
( 5) 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, design, 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. 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.
(5)
( 6) 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).
(d).
(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)
( d) 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 voluntary 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) Scientifically researched studies, guidance
documents, Guidance documents 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.
(f)
( e) 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), (d), or both, the
director shall deny the written request and inform the project
proponent of the reason or reasons for the denial.
(g)
( f) The director's approval of a habitat
restoration or enhancement project pursuant to subdivision
(e) (d), 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.
(h)
( g) 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.
(i)
( h) The director's approval of a habitat
restoration or enhancement project pursuant to subdivision
(e) (d) 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.
(j)
( i) (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.
(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.
(k)
( j) (1) If the director determines at any
time that the project is no longer consistent with subdivision
(e), (d), 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 (e) (d) 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).
(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.
(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.
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
projects, a project, based on the cost of
a the project, sufficient to recover
all reasonable administrative and implementation costs of the
department relating to the 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. project.
(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.
1654. 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.