Amended in Senate August 19, 2014

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 and repeal Chapter 6.5 (commencing with Section 1650) begin delete to end delete begin insert of end insert 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, begin insert or a project that has received certification pursuant to a specified order of the State Water Resources Control Board end insert 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 begin delete authorize end delete begin insert require end insert the department to begin delete impose a schedule of end delete begin insert assess end insert fees for a project begin delete , based on the cost of the project, sufficient to recover all end delete begin insert according to a specified fee schedule but would prohibit those fees from exceeding end insert reasonable administrative and implementation costs of the department relating to the project. 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 require the department to submit a report on the implementation of the act to the Legislature no later than December 31, 2020. end insert 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 begin delete accomplishing one or more of the
following: end delete begin insert improving fish and wildlife habitat. A habitat restoration
or enhancement project shall meet the eligibility requirements for
the State Water Resources Control Board’s Order for Clean Water
Act Section 401 General Water Quality Certification for Small
Habitat Restoration Projects, or its current equivalent, at the time
the director reviews a project, which may also include
programmatic waivers or waste discharge requirements for small
habitat restoration projects for waters of the state that include
similar conditions. end insert

begin delete

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

(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 or flashboard dams; weirs, sills, and
aprons; and poorly designed, undersized, or failed culverts.

(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.

(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.

(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.

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

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

(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.

(9) Restoration of freshwater wetlands, excluding vernal pools,
to improve fish and wildlife habitat.

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

(11)  Restoration of floodplains to restore natural hydrologic
function, including, but not limited to, revegetation.

(12) 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 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.

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

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

end delete

begin delete

1652.  

(a) 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.

(b) 

end delete

begin insert

begin insert 1652. end insert   

end insert

begin insert (a) end insert begin insert   end insert A project proponent may submit a written request
to approve a habitat restoration or enhancement project to the
begin delete director. end delete begin insert director pursuant to this section if the project has not yet
received certification pursuant to the State Water Resources
Control Board’s Order for Clean Water Act Section 401 General
Water Quality Certification for Small Habitat Restoration Projects.
If the project has received certification pursuant to that order, the
project proponent may submit a request for approval of the project
pursuant to Section 1653. end insert

begin delete

(c)

end delete

begin insert (b) 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 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 activities, and how the project is expected
to result in a net benefit to any affected habitat and begin delete species,
consistent with paragraph (4) of subdivision (d). end delete begin insert species. 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. 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.

(5) A description of the environmental protection measures
incorporated into the project 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.

(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 begin delete (d). end delete begin insert (c). end insert

begin insert

(7) A certifying statement that the project complies with the
California Environmental Quality Act (Division 13 (commencing
with Section 21000)) of the Public Resources Code, by conforming
to the requirements of Section 15333 of Title 14 of the California
Code of Regulations.

end insert begin delete

(d)

end delete

begin insert (c) 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 begin delete (c), the project will maintain existing levels of human
health and safety protection, including, but not limited to, flood
protection, end delete begin insert (b), end insert 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.

begin delete

(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.

end delete begin insert

(3) The project meets the eligibility requirements of the State
Water Resources Control Board’s Order for Clean Water Act
Section 401 General Water Quality Certification for Small Habitat
Restoration Projects, but has not yet received certification pursuant
to that order.

end insert

(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, begin delete programmatic and individual project
biological opinions, end delete 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) 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.

begin delete

(e)

end delete

begin insert (d) end insert  If the director determines that the written request does not
contain all of the information required by subdivision begin delete (c), end delete begin insert (b), end insert or
fails to meet the requirements set forth in subdivision begin delete (d), end delete begin insert (c), 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

(f)

end delete

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

(g)

end delete

begin insert (f) 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

(h) The director’s approval of a habitat restoration or
enhancement project pursuant to subdivision (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.

(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.

(j)

end delete

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

(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 delete begin insert

(h) (1) The project proponent shall submit a monitoring plan,
monitoring report, and notice of completion to the department in
a manner to be determined by the department.

end insert begin insert

(2) A project proponent may comply with the requirements of
paragraph (1) by submitting to the department a monitoring report,
monitoring plan, and notice of completion required to be completed
pursuant to the State Water Resources Control Board’s Order for
Clean Water Act Section 401 General Water Quality Certification
for Small Habitat Restoration Projects or its equivalent.

end insert begin delete

(l)

end delete

begin insert (i) end insert  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.

begin insert

begin insert 1653. end insert   

(a) A person may carry out a project that has received
certification pursuant the State Water Resources Control Board’s
Order for Clean Water Act Section 401 General Water Quality
Certification for Small Habitat Restoration Projects without
obtaining a permit, agreement, license, or other approval that
would otherwise be required to carry out the project 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, if the
person meets the requirements of subdivision (b) and the director
approves the project pursuant to subdivision (d).

(b) (1) The person shall submit a written request to the director
to approve the project described in subdivision (a). The written
request shall contain all of the following:

(A) A statement that the person has received a notice of
applicability that indicates that the project has received
certification pursuant to the State Water Resources Control
Board’s Order for Clean Water Act Section 401 General Water
Quality Certification for Small Habitat Restoration Projects.

(B) A copy of the notice of intent that the person provided to
the State Water Resources Control Board or a regional water
quality control board.

(C) A copy of the notice of applicability.

(2) The person shall submit to the director the fees required
pursuant to Section 1654.

(c) Upon receipt of the written request, the director shall
immediately have published in the General Public Interest section
of the California Regulatory Notice Register the receipt of the
written request.

(d) Within 30 days after receiving a written request to approve
a project described in subdivision (a), the director shall approve
the project if the director determines that the written request
satisfies all of the requirements set forth in subdivision (b) and
that, based upon substantial evidence, the project meets all of the
requirements set forth in subdivision (c) of Section 1652.

(e) The director shall immediately publish the determination
made pursuant to subdivision (d) in the General Public Interest
section of the California Regulatory Notice Register.

end insert

begin delete 1653. end delete
begin insert 1654. end insert   

(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 begin delete may impose a schedule of fees for a project,
based on the cost of the project, sufficient to recover all reasonable
administrative and implementation costs of the department relating
to the project. end delete begin insert shall assess fees for projects approved pursuant to
Sections 1652 and 1653 according to the fee schedule found in
paragraph (2) of subdivision (b) of Section 699.5 of Title 14 of the
California Code of Regulations, but those fees shall not exceed
the reasonable administrative and implementation costs of the
department relating to the 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 1655. end insert   

(a) The department shall submit a report on the
implementation of this chapter to the Legislature no later than
December 31, 2020, which shall include, but not be limited to, the
number, type, and geographical distribution of approved projects,
funding adequacy, and recommendations for changes and
improvements in the program.

(b) A report to be submitted pursuant to subdivision (a) shall
be submitted in compliance with Section 9795 of the Government
Code.

end insert

begin delete 1654. end delete
begin insert 1656. 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.