BILL ANALYSIS �
AB 2193
Page 1
Date of Hearing: April 8, 2014
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Anthony Rendon, Chair
AB 2193 (Gordon) - As Amended: April 2, 2014
SUBJECT : Habitat Restoration and Enhancement Act
SUMMARY : Enacts the Habitat Restoration and Enhancement Act
which would require the director of the Department of Fish and
Wildlife (DFW) to approved habitat restoration and enhancement
projects that meet specified criteria. Specifically, this bill :
1)Requires the director of DFW to approve a habitat restoration
or enhancement project if the project will maintain existing
levels of human health and safety protection, including but not
limited to flood protection, and meets all of the following:
a) Is a voluntary habitat restoration project and not
required for mitigation.
b) Is no larger than 5 acres in size.
c) In consistent with or identified in:
i. Federal and state listed species recovery
plans or published protection measures, biological
opinions, or previously approved DFW agreements and
permits;
ii. DFW and National Marine Fisheries Service
Screening Criteria or fish passage guidelines;
iii. DFW's California Salmonid Stream Habitat
Restoration Manual; or
iv. Scientifically researched studies,
guidance documents or practice manuals that describe
best available habitat restoration or enhancement
methodologies.
d)Will not result in cumulative negative environmental impacts,
as specified.
2)Provides that the director's approval of a project shall be in
lieu of any other permit, agreement, or license.
3)Requires the director within 30 days of receiving a written
request for approval of a habitat restoration or enhancement
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project to determine whether the request includes all of the
required information. Requires that the written request
include specified information, including: a full description of
the project and how it will result in a net benefit to any
affected habitat and species; an assessment of the project area
that includes a description of existing flora and fauna and the
potential presence of sensitive species or habitat; a
description of the environmental protection measures
incorporated into the project to protect water quality and
protected species, such that no potentially significant
negative effects to the environment are likely to occur; and
substantial evidence that the project meets the specified
requirements.
4)Requires the director to notify the project proponent and
suspend implementation of the project if at any time the
director determines that the project is no longer consistent
with all of the requirements due to a material change. Within
30 days of receipt of a notification of suspension, the project
proponent may file a written objection with the director and
request a lifting of the suspension. Requires the director
within 30 days of receipt of an objection to suspension to
either revoke the approval or lift the suspension.
5)Creates the Habitat Restoration and Enhancement Account within
the Fish and Game Preservation Fund, the monies within which
would be available to DFW upon appropriation of the Legislature
to administer and implement this bill. Authorizes DFW to enter
into agreements to accept funds for deposit into the account to
supplement existing resources. Authorizes DFW to impose a
schedule of fees for projects, based on the cost of a project
and sufficient to recover all reasonable administrative and
implementation costs of DFW related to the project, but not to
exceed the fees adopted by DFW for streambed alteration
agreements for projects of comparable cost.
6)Defines a "habitat restoration or enhancement project" for
purposes of this bill to mean a project the primary purpose of
which is to do one or more of the following:
a) Stream, river bank, lake or other waterway
revegetation to improve habitat;
b) Stream or river bank stabilization with native
vegetation or other predominantly non-rock bioengineering
techniques to reduce erosion and sedimentation;
c) Modification, replacement or removal of fish passage
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barriers, as specified;
d) Modifications of existing water diversion
infrastructure to enhance stream flow and improve fish
habitat and survival, including pumps and fish screens;
e) Placement or installation of large wood, gravel, and
other in-stream materials;
f) Sediment source reduction on existing roads;
g) Upland erosion control using bioengineering
techniques and native revegetation;
h) Control and removal of invasive plant species;
i) Installation of fencing and alternative stock water
supply infrastructure;
j) Restoration of freshwater and tidal hydrologic
functions in wetlands and estuaries;
aa) Creation of off-channel habitat to restore historic
rearing and flow refugia;
bb) Restoration of floodplains to restore natural
hydrologic function;
cc) Restoration and maintenance of existing off-stream
ponds, including spillway repair and sediment removal;
dd) Other habitat restoration projects requiring permits
from DFW whose primary purpose is to recover listed
species and are included in species recovery plans or
other DFW identified habitat and species recovery actions.
7) Defines various other terms for purposes of this bill.
8)States legislative findings and declarations regarding the need
for small-scale ecosystem restoration projects to benefit
listed species and the need for more efficient and expedited
processes for willing landowners and local governments to
obtain necessary regulatory approval and permits for such
projects. States legislative intent to provide for substantial
permitting efficiency to encourage increased implementation of
voluntary, environmentally beneficial small-scale habitat
restoration projects that provide an individual and cumulative
net environmental benefit, incorporate measures to protect
against any adverse change, and follow applicable preexisting
state and federal agency permits, certifications and
exemptions.
EXISTING LAW :
1)Establishes DFW as the trustee for the fish and wildlife
resources of California and prohibits any act which could
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directly or indirectly "take" threatened or endangered species
listed under the California Endangered Species Act (CESA)
unless authorized by DFW.
2)Requires DFW authorization if an action could affect an
endangered or rare native plant unless it fits into an
exemption for agricultural activities, timber operations or
mining.
3)Requires a Lake or Streambed Alteration Agreement with DFW in
order to protect and conserve fish and wildlife resources if an
activity could change the bed, bank or channel of a stream or
lake.
4)States that specified activities to assure the maintenance,
restoration, or enhancement of a natural resource, including
small habitat restoration projects for fish, plants or wildlife
that do not exceed five acres in size, are categorically exempt
from further review under the California Environmental Quality
Act.
5)Provides DFW with an expedited mechanism to approve specific
types of voluntary on-the-ground habitat restoration projects
that benefit Coho salmon. Projects eligible for the approval
are limited to projects within a region described in an adopted
state or federal Coho salmon recovery plan that do one or more
of the following: restore stream banks, modify water
crossings, or place wood to enhance habitat or increase stream
complexity. Eligible projects are also limited to projects
that are less than five acres in size or 500 linear feet.
FISCAL EFFECT : Unknown; this bill authorizes DFW to impose fees
for projects, but limits the amount of such fees to the amount of
fees charged for streambed alteration agreements for projects of
similar cost. It is unclear whether this will be sufficient to
fully cover the costs of DFW's review of project applications.
COMMENTS : The author has introduced this bill to provide
private landowners, conservation organizations and local public
agencies with streamlined access to the environmental permits
required for small (less than 5 acres) ecosystem and urban
watershed restoration projects. By providing an efficient path
for regulatory compliance, the author seeks to create new
opportunities for much-needed rural, urban, coastal, and inland
ecosystem restoration projects. As the legislative findings and
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declarations in the bill indicate, California is home to many
species that are threatened or endangered, and for some of these
species, immediate recovery actions are necessary to avoid
further population declines or extinctions. While tremendous
demand exists for small-scale ecosystem restoration projects,
current regulatory mechanisms create barriers to the ability of
many willing private landowners and local governments to
efficiently access the necessary permits to implement the
projects. Since demand for these public benefit projects
outpaces the regulatory approval process's capacity, hundreds of
small projects designed to benefit California's most vulnerable
wildlife species are not being implemented.
Current law generally requires that project proponents secure
CEQA, CESA, Water Board permits, and streambed alteration
agreement permits for many kinds of small-scale but important
ecosystem restoration projects. Backlogs and delays associated
with permitting have been identified as substantial barriers to
implementing these small voluntary restoration projects in many
regions throughout the state. This bill is designed to provide
the DFW with a more efficient process for reviewing and approving
small, voluntary restoration projects. One of the ways it does
this is by requiring that more detailed information necessary for
approval of the project be provided upfront in the application.
Eligible projects would be limited to small-scale, voluntary
projects of five acres or less. Project applicants would be
required to demonstrate, among other things, that the project is
consistent with existing state or federal recovery plans or other
specified policies, would provide a net benefit to affected
habitats and species, and would not result in cumulative impacts.
A similar measure was enacted last session, but only applied to a
more narrow group of projects designed to assist in recovery of
Coho salmon habitat. AB 1961 (Huffman), known as the Coho Help
Act, streamlined and expedited the approval process for Coho
salmon habitat enhancement projects in order to prevent
extinction. The habitat projects were limited to areas with an
approved Coho salmon recovery plan and included modifications of
water crossings to remove barriers to fish passage (e.g.
replacing culverts), stream bank restoration, and wood placement
to increase the complexity of stream flow (e.g. placing wood
stumps or logs to form pools).
Support Arguments : Supporters, who include groups that work with
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farmers, ranchers, water districts, local governments and
nonprofits on ecosystem restoration strategies, assert that
important habitat restoration work to benefit vulnerable wildlife
species in California could be significantly ramped up to meet
the demand and need for this work if a new, consolidated
environmental permitting process were developed for small-scale
voluntary ecosystem restoration projects. Supporters assert this
bill will simplify the permitting process at DFW for landowners,
state and local governments, and conservation organizations
proposing to implement small-scale environmentally beneficial
projects, while also ensuring compliance with necessary
environmental protections. This bill will also assist DFW in
meeting goals for species recovery.
REGISTERED SUPPORT / OPPOSITION :
Support
Sustainable Conservation (sponsor)
California Association of Resource Conservation Districts
California Invasive Plant Council
California Watershed Network
Cachuma Resource Conservation District
Defenders of Wildlife
Environmental Defense Center
Environmental Defense Fund
Gold Ridge Resource Conservation District
Marin Resource Conservation District
Mendocino County Resource Conservation District
Monterey County Resource Conservation District
Placer Resource Conservation District
San Mateo County Resource Conservation District
Shasta Valley Resource Conservation District
Sierra Business Council
South Coast Habitat Restoration
Tahoe Resource Conservation District
Tehama County Resource Conservation District
The Land Conservancy of San Luis Obispo County
Upper Salinas-Las Tablas Resource Conservation District
Ventura County Resource Conservation Districts
Yolo County Resource Conservation District
Opposition
None on file.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
AB 2193
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319-2096