BILL NUMBER: AB 2193 AMENDED
BILL TEXT
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
INTRODUCED BY Assembly Member Gordon
FEBRUARY 20, 2014
An act to add and repeal Chapter 6.5 (commencing with Section
1650) to of 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, or a project that has received
certification pursuant to a specified order of the State Water
Resources Control Board 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 require
the department to impose a schedule of
assess fees for a project , based on the cost of the
project, sufficient to recover all according to a
specified fee schedule but would prohibit those fees from exceeding
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. 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. 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: 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.
(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.
(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) 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)
1652. (a) A project proponent
may submit a written request to approve a habitat restoration or
enhancement project to the director. 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.
(c)
(b) 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 species,
consistent with paragraph (4) of subdivision (d).
species.
(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 (d). (c).
(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.
(d)
(c) 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, (b), 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.
(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.
(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) 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.
(e)
(d) If the director determines that the written request
does not contain all of the information required by subdivision
(c), (b), or fails to meet the
requirements set forth in subdivision (d),
(c), or both, the director shall deny the written request and
inform the project proponent of the reason or reasons for the denial.
(f)
(e) The director's approval of a habitat restoration or
enhancement project pursuant to subdivision (d),
(c), 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.
(g)
(f) 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.
(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)
(g) (1) If the director determines at any time that the
project is no longer consistent with subdivision (d),
(c), 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 (d) (c) 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.
(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.
(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.
(l)
(i) 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) 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.
1653. 1654. (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 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. 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.
(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.
1655. (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.
1654. 1656. 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.