Amended in Senate August 22, 2014

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) 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, begin delete or a project that has received certification pursuant to a specified order of the State Water Resources Control Board end delete 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 require the department to assess begin delete fees end delete begin insert an application fee end insert for a project begin delete according to a specified fee schedule end delete begin insert submitted to the department end insert begin insert consistent with specified fees adopted by the department end insert but would prohibit begin delete those fees end delete begin insert the application fee end insert 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 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 begin delete equivalent, end delete begin insert equivalent end insert at the time the begin delete director reviews a
project, which end delete begin insert project proponent submits a written request
pursuant to Section 1652 or 1653. The order or current equivalent end insert
may begin delete also end delete include programmatic waivers or waste discharge
requirements for small habitat restoration begin delete projects for waters of
the state that include similar conditions. end delete begin insert projects. end insert

(c) “Project proponent” means a person, public agency, or
nonprofit organization seeking to implement a habitat restoration
or enhancement project. begin insert end insert

(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.

1652.  

(a) A project proponent may submit a written request
to approve a habitat restoration or enhancement project to the
director pursuant to this section if the project has not begin delete yet end delete 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 begin delete Projects. end delete begin insert Projects, or
its current equivalent at the time the project proponent submits
the written request. end insert If the project has received certification pursuant
to that order, begin insert or its current equivalent, end insert the project proponent may
submit a request for approval of the project pursuant to Section
1653.

(b) A written request to approve a habitat restoration or
enhancement project begin insert pursuant to this section end insert 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. end delete begin insert species,
consistent with paragraph (4) of subdivision (c). 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 (c).

(7) A certifying statement that the project begin delete complies end delete begin insert will comply end insert
with the California Environmental Quality Act (Division 13
(commencing with Section begin delete 21000)) end delete begin insert 21000) end insert of the Public Resources
begin delete Code, by conforming end delete begin insert Code), which may include, but not be limited end insert
to begin insert , end insert the requirements of Section 15333 of Title 14 of the California
Code of Regulations.

(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 (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 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, begin insert or its current equivalent at the time the
project proponent submits the written request, end insert but has not begin delete yet end delete
received certification pursuant to that order begin insert or its equivalent 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, 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 begin delete negative end delete begin insert adverse end insert
environmental impacts that are significant when viewed in
connection with the effects of past, current, or probable future
projects.

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

begin delete

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

(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.

(g) (1) If the director determines at any time that the project is
no longer consistent with subdivision (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 (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).

(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.

(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.

end delete begin insert

(e) The project proponent shall submit a notice of completion
to the department no later than 30 days after the project approved
pursuant to this section is completed. 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 the final
boundaries of the restoration area or areas and postproject
photographs. Each photograph shall include a descriptive title,
date taken, photographic monitoring point, and photographic
orientation.

end insert begin insert

(f) The project proponent shall submit a monitoring report
describing whether the restoration project is meeting each of the
restoration goals stated in the project application. Each report
shall include photographs with a descriptive title, date taken,
photographic monitoring point, and photographic orientation. The
monitoring reports for Section 401 Water Quality Certification or
waste discharge requirements of the State Water Resources Control
Board or a regional water quality control board, or for department
or federal voluntary habitat restoration programs, including, but
not limited to, the Fisheries Restoration Grant Program, may be
submitted in lieu of this requirement.

end insert

begin delete

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.

end delete begin insert

begin insert 1653. end insert   

(a) A project proponent may submit a written request
to approve a habitat restoration or enhancement project to the
director pursuant to this section if 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, or
its current equivalent at the time the project proponent submits
the written request.

(b) A written request to approve a habitat restoration or
enhancement project pursuant to this section shall include all of
the following:

(1) Notice that the project proponent has received a notice of
applicability that indicates that the project is authorized 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 at the time
the project proponent submits the written request.

(2) A copy of the notice of applicability.

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

(4) A description of species protection measures incorporated
into the project design, but not already included in the notice of
intent, to avoid and minimize impacts to potentially present species
protected by state and federal law, such as appropriate seasonal
work limitations and the use of qualified professionals for standard
preconstruction surveys where protected species are potentially
present.

(5) The fees required pursuant to Section 1655.

(c) Upon receipt of the notice specified in paragraph (1) of
subdivision (b), the director shall immediately have published in
the General Public Interest section of the California Regulatory
Notice Register the receipt of that notice.

(d) Within 30 days after the director has received the notice of
applicability described in subdivision (b), the director shall
determine whether the written request accompanying the notice
of applicability is complete.

(e) If the director determines within that 30-day period, based
upon substantial evidence, that the written request is not complete,
then the project may be authorized under Section 1652.

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

(g) The project proponent shall submit the monitoring plan,
monitoring report, and notice of completion to the department as
required by the State Water Resources Control Board’s Order
Clean Water Act Section 401 General Water Quality Certification
for Small Habitat Restoration Projects, or its current equivalent
at the time the project proponent submits the written request. The
order or its current equivalent may include programmatic waivers
or waste discharge requirements for small scale restoration
projects.

end insert begin insert

begin insert 1654. end insert   

(a) The director’s approval of a habitat restoration or
enhancement project pursuant to Section 1652 or 1653 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 6 (commencing with Section 1600) and
Chapter 10 (commencing with Section 1900) of this Division and
Chapter 1.5 (commencing with Section 2050) of Division 3.

(b) 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.

(c) (1) If the director determines at any time that the project is
no longer consistent with subdivision (c) of Section 1652 or
subdivision (b) of Section 1653, as applicable, 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 (c) of Section 1652 or subdivision (b) of Section 1653,
as applicable, and request that the notice of suspension 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).

(d) 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

begin delete 1654. end delete
begin insert 1655. 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 shall assess begin delete fees end delete begin insert an application fee end insert for
begin delete projects approved end delete begin insert a project submitted to the department end insert pursuant
to begin delete Sections end delete begin insert Section end insert 1652 begin delete and end delete begin insert or end insert 1653 begin delete 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, end delete begin insert consistent with the fees
adopted by the department pursuant to Chapter 6 (commencing
with Section 1600) end insert begin insert , end insert but begin delete those fees end delete begin insert the application fee end insert 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.

begin delete 1655. end delete
begin insert 1656. 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.

begin delete 1656. end delete
begin insert 1657. 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.