BILL ANALYSIS �
AB 2193
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2193 (Gordon)
As Amended August 22, 2014
Majority vote
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|ASSEMBLY: |77-0 |(May 28, 2014) |SENATE: |35-0 |(August 27, |
| | | | | |2014) |
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Original Committee Reference: W., P. & W.
SUMMARY : Enacts the Habitat Restoration and Enhancement Act
which would require the director of the Department of Fish and
Wildlife (DFW) to approve small habitat restoration and
enhancement projects that meet specified criteria.
The Senate amendments :
1)Strike a legislative finding regarding small scale restoration
projects to benefit listed species.
2)Modify the definition of an eligible "habitat restoration or
enhancement project" under this bill to mean a project with
the primary purpose of improving fish and wildlife habitat,
and that, at the time the project proponent submits a written
request for approval, meets 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 (Water Board's Section 401
Certification Order), or its current equivalent. Specify that
the order or current equivalent may include programmatic
waivers or waste discharge requirements for small habitat
restoration projects.
3)Modify the information that is required to be included in a
written request to the director for approval of a project.
Establish a different procedure for projects that have not yet
received certification pursuant to the Water Board's Section
401 Certification Order, and for projects that have received
that certification or its current equivalent.
4)For projects that have not yet received certification pursuant
to the State Water Board's Section 401 Certification Order,
specify the following process:
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a) Require the written request for approval to include: a
full description of the project, as specified; as
assessment of the project area including pre-project
photographs; a geographic description of the project site
including maps and other specified information; a
description of the environmental protection measures
incorporated into the project design so that no potentially
significant adverse effects on the environment are likely
to occur; substantial evidence to support a conclusion the
project meets the requirements; and a certifying statement
that the project will comply with the California
Environmental Quality Act (CEQA) by conforming to the
requirements of the California Code of Regulations Section
15333 of Title 14.
b) Specify that environmental protection measures
incorporated into the project 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.
c) Require the director of DFW to approve a habitat
restoration or enhancement project within 60 days of
receiving a written request for approval if the director
determines the written request includes all required
information, as specified, and meets specified
requirements.
d) Add a requirement that the project is not part of a
regulatory permit for nonhabitat restoration or enhancement
construction activity, a regulatory settlement, a
regulatory enforcement action, or a court order. Require
that a project meet the eligibility requirements for the
State Water Board's Section 401 Certification Order, but
has not yet received certification pursuant to that order.
e) Require the director to deny the written request for
project approval if the director determines that the
written request does not contain all of the information
required, or fails to meet the requirements specified, and
to inform the project proponent of the reasons for the
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denial.
f) Require the project proponent to submit a notice of
completion to DFW no later than 30 days after project
completion, as specified. Require the project proponent to
submit a monitoring report as described and provide that
the project proponent may comply with this requirement by
submitting other specified monitoring reports required by
the State Water Resources Control Board, regional water
quality control boards, or for DFW or federal voluntary
habitat restoration programs, including the Fisheries
Restoration Grant program.
5)For projects that have received certification pursuant to the
State Water Board's Section 401 Certification Order, specify
the following process:
a) Require the written request for approval to include the
following:
i) Specified information regarding the notice of
applicability indicating the project has received the
Water Board's Section 401 Certification Order
certification and the project proponent's notice of
intent.
ii) A description of species protection measures
incorporated into the project design that are not already
included in the notice of intent.
iii) Required fees.
b) Require the director of DFW to have receipt of the
written request published in the California Regulatory
Notice Register immediately upon receipt, to approve the
project within 30 days of receipt if the director
determines the project meets all of the requirements as
specified, and to immediately publish the determination in
the Register. Provide that if the director determines that
the written request is not complete, the project may be
authorized under the procedure for projects not yet
certified under the State Water Board's Section 401
Certification Order.
c) Require the project proponent to submit the monitoring
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plan, monitoring report, and notice of completion required
by the State Water Resources Control Board to the DFW.
6)Provide that the DFW and other state agencies exercising
authority under this bill shall not be liable with regard to
any determination or authorization made pursuant to this bill.
7)Provide that the application fee DFW is authorized to assess
under this bill shall be consistent with the fees assessed for
streambed alteration agreements and shall not exceed the
reasonable administrative and implementation costs of DFW
related to the project.
8)Require the DFW to submit a report to the Legislature by
December 31, 2020, on the number, type, and geographical
distribution of approved projects, funding adequacy, and
recommendations for changes and improvements to the program
established by this bill.
9)Add a sunset clause providing that this bill 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.
10)Make other clarifying and technical changes.
EXISTING LAW :
1)Establishes DFW as the trustee for the fish and wildlife
resources of California and prohibits any act which could
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,
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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 CEQA.
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.
AS PASSED BY THE ASSEMBLY , this bill would enact the Habitat
Restoration and Enhancement Act to require the director of DFW
to approve small habitat restoration and enhancement projects
that meet specified criteria. The director would be required to
approve the project if it will maintain existing levels of human
health and safety protection, including but not limited to flood
protection, and meets additional requirements, including that
the project is a voluntary project not required for mitigation,
is no larger than five acres in size, is consistent with federal
or state recovery plans or guidelines, and will not result in
cumulative negative environmental impacts. The director's
approval would be in lieu of other permits, agreements or
licenses. The director would be required within 30 days of
receiving a written request for approval of a habitat
restoration or enhancement project to determine whether the
request includes all of the required information, including a
full description of the project, an assessment of the project
area, a description of environmental protection measures
incorporated into the project, and substantial evidence that the
project meets specified requirements. This bill as passed by
the Assembly also defined a habitat restoration and enhancement
project for purposes of this bill, authorized the DFW to impose
a schedule of fees for projects, and created the Habitat
Restoration and Enhancement Account within the Fish and Game
Preservation Fund.
FISCAL EFFECT : According to the Senate Appropriations
Committee, minor and absorbable costs to the Habitat Restoration
and Enhancement Account within the Fish and Game Preservation
Fund (special) to DFW for increased and expedited permit review.
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Unknown fee revenues, but likely minor, to the Habitat
Restoration and Enhancement Account.
COMMENTS : This purpose of this bill is to provide private
landowners, conservation organizations and local public agencies
with streamlined access to environmental permits required for
small ecosystem and urban watershed restoration projects. By
providing an efficient pathway for regulatory compliance, this
bill seeks to create new opportunities for much needed rural,
urban, coastal, and inland ecosystem restoration projects.
The Senate amendments modify the criteria and definitions, add
additional specificity regarding the information that would need
to be included in an application for approval, and provide
further details regarding the approval process. The definition
of eligible habitat restoration and enhancement projects is
modified to limit the bill's application to small habitat
restoration projects that 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 program. That certification
program applies to small habitat projects that are eligible for
a CEQA categorical exemption under California Code of
Regulations, Title 14, Section 15333 for small habitat
restoration projects, do not exceed five acres in size or a
cumulative total of 500 linear feet of stream bank or coastline,
have a construction period that does not exceed five years, and
are not a compensatory mitigation project. Code of Regulations
Section 15333 provides a categorical exemption from CEQA for
small habitat restoration projects that do not exceed five acres
in size to assure the maintenance, restoration, enhancement, or
protection of habitat for fish, plants, or wildlife, provided
that there will be no significant adverse impact on endangered,
rare or threatened species or their habitat, there are no
hazardous materials at or around the project site that may be
disturbed or removed, and the project will not result in
significant cumulative impacts. Examples of small habitat
restoration projects that may qualify under the Water Board's
Section 401 Certification Order and this bill include
re-vegetation of disturbed areas with native plant species,
wetland restoration to improve conditions for waterfowl, stream
or river bank re-vegetation to improve habitat for amphibians or
native fish, stream or river bank stabilization with native
vegetation or other bioengineering techniques to reduce erosion
and sedimentation, and culvert replacement to improve habitat.
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A different process is established for projects that have
already been certified under the State Water Board's Section 401
Certification Order, and projects that meet the eligibility
requirements for the State Water Board's program but have not
yet been certified under that program. The Senate amendments
also add liability protection for state agencies participating
in the process established by this bill and add a seven year
sunset clause.
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096
FN: 0005415