BILL NUMBER: AB 2488 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 19, 2016
AMENDED IN SENATE JUNE 21, 2016
AMENDED IN SENATE JUNE 9, 2016
AMENDED IN ASSEMBLY APRIL 14, 2016
AMENDED IN ASSEMBLY MARCH 31, 2016
AMENDED IN ASSEMBLY MARCH 17, 2016
INTRODUCED BY Assembly Member Dababneh
(Coauthor: Senator Hertzberg)
FEBRUARY 19, 2016
An act to amend Section 5515 of, and to add Section 2081.10 to,
the Fish and Game Code, relating to fish.
LEGISLATIVE COUNSEL'S DIGEST
AB 2488, as amended, Dababneh. Protected species: unarmored
threespine stickleback: taking or possession.
Existing law prohibits the taking or possession of a fully
protected fish, except as provided, and designates the unarmored
threespine stickleback as a fully protected fish. The California
Endangered Species Act prohibits the taking of an endangered or
threatened species, except as specified. The Department of Fish and
Wildlife may authorize the take of listed species if the take is
incidental to an otherwise lawful activity and the impacts are
minimized and fully mitigated.
This bill would permit the department to authorize, under the
California Endangered Species Act, the take of the unarmored
threespine stickleback (Gasterosteus aculeatus williamsoni)
attributable to the periodic dewatering, inspection, maintenance,
modification, or repair of the Metropolitan Water District of
Southern California's Foothill Feeder water supply facility from
Castaic Dam to the Joseph Jensen Treatment Plant in the County of Los
Angeles, as specified, if certain conditions, including the adoption
of an adaptive management process, plan,
are satisfied. The bill would require the Metropolitan Water
District of Southern California, if it applies for and
receives a permit under the bill, to report certain
information to the department on July 1, 2018, and
every 10 years thereafter, on the effectiveness of the adaptive
management process in contributing to the conservation of the
unarmored threespine stickleback. within 6 months
after every dewatering of the Foothill Feeder.
This bill would incorporate additional changes to Section 5515 of
the Fish and Game Code, proposed by AB 1845 and AB 2001, that would
become operative only if this bill and either or both of those bills
are chaptered and become effective on or before January 1, 2017, and
this bill is chaptered last.
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. The Legislature finds and declares all of the
following:
(a) The Foothill Feeder below Castaic Dam in the County of Los
Angeles is the primary conduit for water from the State Water Project
for the Southern southern California
region served by the Metropolitan Water District of Southern
California. The Metropolitan Water District of Southern California is
a public agency comprised of 26 member public agencies - 14 cities,
11 municipal water districts, and one county water authority - and
provides water to more than approximately
19 million people in the Counties of Los Angeles, Orange,
Riverside, San Bernardino, San Diego, and Ventura.
(b) Water supplies from the State Water Project are a critical
part of Southern southern California's
water supply portfolio, and any interruption of that supply must be
minimized to ensure delivery of clean and reliable water supplies for
municipal and industrial uses, including health and human safety,
and to water agencies and cities that rely upon water supply
deliveries from the Metropolitan Water District of Southern
California.
(c) Periodic dewatering, inspection, maintenance, modification, or
repair, including emergency repairs, require that all or a portion
of the Foothill Feeder be dewatered into the Santa Clara River and
certain of its tributaries where unarmored threespine stickleback
(Gasterosteus aculeatus williamsoni) may be present during these
activities. Thus, to protect southern California water supplies,
the incidental take of unarmored threespine stickleback must
be permitted for the periodic dewatering, inspection, maintenance,
modification, or repair of the Foothill Feeder to protect
Southern California water supplies. Feeder.
(d) The Department of Fish and Wildlife and the
During the permit application process pursuant to
Section 2081.10 of the Fish and Game Code, the Metropolitan
Water District of Southern California should
shall consult with the Department of Fish and Wildlife and
the United States Fish and Wildlife Service with respect to
feasible mitigation and conservation measures that may be adopted
pursuant to Section 2081.10 of the Fish and Game Code to
design these that section. These measures
to shall be consistent with any state
or federal wildlife agency recovery plan adopted for the long-term
conservation of the unarmored threespine stickleback in the Santa
Clara River watershed.
SEC. 2. Section 2081.10 is added to the Fish and Game Code, to
read:
2081.10. (a) The department may authorize, under this chapter,
the incidental take of unarmored threespine stickleback (Gasterosteus
aculeatus williamsoni) attributable to the periodic dewatering,
inspection, maintenance, modification, or repair, including emergency
repair, of the Metropolitan Water District of Southern California's
Foothill Feeder water supply facility from Castaic Dam to the Joseph
Jensen Treatment Plant in the County of Los Angeles, contingent upon
the fulfillment of the following conditions:
(1) The department determines that the requirements of
subdivisions (b) and (c) of Section 2081 are satisfied for the take
of the unarmored threespine stickleback.
(2) The department ensures that all further measures necessary to
satisfy the conservation standard of subdivision (d) of Section 2805
are incorporated into the project.
(3) The take authorization provides for the development and
implementation, in cooperation with the department, of an adaptive
management process plan for monitoring
the effectiveness of, and adjusting as necessary, the measures to
minimize and fully mitigate the impacts of the authorized take and to
satisfy the conservation standard of subdivision (d) of Section
2805.
(4) A biologist who has substantial relevant experience evaluating
impacts to inland fisheries is on duty whenever an activity is
conducted that may affect the unarmored threespine stickleback.
(5) The Metropolitan Water District of Southern California
consults with the department to consider feasible measures to avoid
and minimize incidental take of unarmored threespine
stickleback, taking into account physical, technological, logistical,
legal, financial, and environmental constraints.
stickleback. For purposes of this paragraph, "feasible" has the same
meaning as defined in Section 15364 of Title 14 of the California
Code of Regulations.
(b) The take authorization shall cover any incidental take of
unarmored threespine stickleback attributable to the periodic
dewatering, inspection, maintenance, modification, or repair,
including emergency repair, of the Foothill Feeder that may occur in
the following locations:
(1) Within the Santa Clara River, from the Bouquet Canyon Road
Bridge to a point located 4,000 feet downstream of where Commerce
Center Drive, as of January 1, 2016, dead ends
dead-ends adjacent to the Santa Clara River.
(2) From the confluence with the Santa Clara River upstream to the
following locations:
(A) In Charlie Canyon to a point 1,000 feet upstream of the
Foothill Feeder facility dewatering structure.
(B) In San Francisquito Creek to the Copper Hill Drive bridge.
(C) In Placerita Creek to the Hacienda Lane crossing.
(D) In Bouquet Creek to the Newhall Ranch Road Bridge.
(c) The take authorization shall also cover any incidental take of
unarmored threespine stickleback that may occur in the course of
implementing mitigation or conservation actions required in the
permit issued pursuant to subdivision (a) as may be modified through
an adaptive management plan adopted pursuant to paragraph (3) of
subdivision (a).
(d) The permit issued pursuant to subdivision (a) shall include
conditions that cover biological and scientific considerations
including, but not limited to, criteria for the handling of stranded
fish and their replacement into the stream,
relocation into suitable habitat, the dewatering of the
Foothill Feeder, and the reasonable and feasible mimicking of
streamflows. The permit conditions shall be in substantial
compliance with the project description, mitigation
measures, and release plan set forth in the
certified environmental impact report known as the "Foothill Feeder
Repair and Future Inspections Project Environmental Impact Report,
January 2005, State Clearinghouse Number 2005071082." The permit
conditions are subject to amendment when required by the adaptive
management process plan or when modified
by a subsequent final environmental document pursuant to the
California Environmental Quality Act (Division 13 (commencing with
Section 21000) of the Public Resources Code).
(e) This section shall not be construed to exempt from any other
law the periodic dewatering, inspection, maintenance, modification,
or repair of the Foothill Feeder.
(f) If the Metropolitan Water District of Southern California
applies for and receives a permit under this
Section, the district shall report on July 1, 2018, and
every 10 years thereafter, to the department in a report that is
available to the public on the effectiveness of the adaptive
management process in contributing to the conservation of the
unarmored threespine stickleback. section, the permit
shall require the district to report to the department within six
months after every dewatering of the Foothill Feeder. The report
shall address compliance with the permit conditions and the
effectiveness of the adaptive management plan in contributing to the
conservation of the unarmored threespine stickleback. The
Metropolitan Water District of Southern California shall ensure that
each report is made available to the public.
(g) As used in this section, "modification" does not include
alterations to expand the maximum physical capacity of the Foothill
Feeder to deliver water.
SEC. 3. Section 5515 of the Fish and Game Code is amended to read:
5515. (a) (1) Except as provided in this section,
section or Section 2081.6, Section
2081.7, Section 2081.10, or
Section 2835, a fully protected fish shall not be taken or
possessed at any time. No provision of this code or any other law
shall be construed to authorize the issuance of a permit or license
to take a fully protected fish, and no permit or license previously
issued shall have force or effect for that purpose. However, the
department may authorize the taking of a fully protected fish for
necessary scientific research, including efforts to recover fully
protected, threatened, or endangered species. Before authorizing the
take of a fully protected fish, the department shall make an effort
to notify all affected and interested parties to solicit information
and comments on the proposed authorization. The notification shall be
published in the California Regulatory Notice Register and be made
available to each person who has notified the department, in writing,
of his or her interest in fully protected species and who has
provided an email address, if available, or postal address to the
department. Affected and interested parties shall have 30 days after
notification is published in the California Regulatory Notice
Register to provide relevant information and comments on the proposed
authorization.
(2) As used in this subdivision, "scientific research" does not
include an action taken as part of specified mitigation for a
project, as defined in Section 21065 of the Public Resources Code.
(3) A legally imported fully protected fish may be possessed under
a permit issued by the department.
(b) The following are fully protected fish:
(1) Colorado River squawfish (Ptychocheilus lucius).
(2) Thicktail chub (Gila crassicauda).
(3) Mohave chub (Gila mohavensis).
(4) Lost River sucker (Catostomus luxatus).
(5) Modoc sucker (Catostomus microps).
(6) Shortnose sucker (Chasmistes brevirostris).
(7) Humpback sucker (Xyrauchen texanus).
(8) Owens River pupfish (Cyprinoden radiosus).
(9) Unarmored threespine stickleback (Gasterosteus aculeatus
williamsoni).
(10) Rough sculpin (Cottus asperrimus).
SEC. 3.1. Section 5515 of the Fish and
Game Code is amended to read:
5515. (a) (1) Except as provided in this section,
section or Section 2081.4, 2081.6,
Section 2081.7, 2081.10, or
Section 2835, a fully protected fish may
shall not be taken or possessed at any time. No provision
of this code or any other law shall be construed to authorize the
issuance of a permit or license to take a fully protected fish, and
no permit or license previously issued shall have force or effect for
that purpose. However, the department may authorize the taking of a
fully protected fish for necessary scientific research, including
efforts to recover fully protected, threatened, or endangered
species. Before authorizing the take of a fully protected fish, the
department shall make an effort to notify all affected and interested
parties to solicit information and comments on the proposed
authorization. The notification shall be published in the California
Regulatory Notice Register and be made available to each person who
has notified the department, in writing, of his or her interest in
fully protected species and who has provided an email address, if
available, or postal address to the department. Affected and
interested parties shall have 30 days after notification is published
in the California Regulatory Notice Register to provide relevant
information and comments on the proposed authorization.
(2) As used in this subdivision, "scientific research" does not
include an action taken as part of specified mitigation for a
project, as defined in Section 21065 of the Public Resources Code.
(3) A legally imported fully protected fish may be possessed under
a permit issued by the department.
(b) The following are fully protected fish:
(1) Colorado River squawfish (Ptychocheilus lucius).
(2) Thicktail chub (Gila crassicauda).
(3) Mohave chub (Gila mohavensis).
(4) Lost River sucker (Catostomus luxatus).
(5) Modoc sucker (Catostomus microps).
(6) Shortnose sucker (Chasmistes brevirostris).
(7) Humpback sucker (Xyrauchen texanus).
(8) Owens River pupfish (Cyprinoden radiosus).
(9) Unarmored threespine stickleback (Gasterosteus aculeatus
williamsoni).
(10) Rough sculpin (Cottus asperrimus).
SEC. 3.2. Section 5515 of the Fish and
Game Code is amended to read:
5515. (a) (1) Except as provided in this section,
section or Section 2081.6, Section
2081.7, 2081.10, 2089.7, or Section
2835, a fully protected fish may
shall not be taken or possessed at any time. No provision of
this code or any other law shall be construed to authorize the
issuance of a permit or license to take a fully protected fish, and
no permit or license previously issued shall have force or effect for
that purpose. However, the department may authorize the taking of a
fully protected fish for necessary scientific research, including
efforts to recover fully protected, threatened, or endangered
species. Before authorizing the take of a fully protected fish, the
department shall make an effort to notify all affected and interested
parties to solicit information and comments on the proposed
authorization. The notification shall be published in the California
Regulatory Notice Register and be made available to each person who
has notified the department, in writing, of his or her interest in
fully protected species and who has provided an email address, if
available, or postal address to the department. Affected and
interested parties shall have 30 days after notification is published
in the California Regulatory Notice Register to provide relevant
information and comments on the proposed authorization.
(2) As used in this subdivision, "scientific research" does not
include an action taken as part of specified mitigation for a
project, as defined in Section 21065 of the Public Resources Code.
(3) A legally imported fully protected fish may be possessed under
a permit issued by the department.
(b) The following are fully protected fish:
(1) Colorado River squawfish (Ptychocheilus lucius).
(2) Thicktail chub (Gila crassicauda).
(3) Mohave chub (Gila mohavensis).
(4) Lost River sucker (Catostomus luxatus).
(5) Modoc sucker (Catostomus microps).
(6) Shortnose sucker (Chasmistes brevirostris).
(7) Humpback sucker (Xyrauchen texanus).
(8) Owens River pupfish (Cyprinoden radiosus).
(9) Unarmored threespine stickleback (Gasterosteus aculeatus
williamsoni).
(10) Rough sculpin (Cottus asperrimus).
SEC. 3.3. Section 5515 of the Fish and
Game Code is amended to read:
5515. (a) (1) Except as provided in this section,
section or Section 2081.4, 2081.6,
Section 2081.7, 2081.10, 2089.7, or
Section 2835, a fully protected fish may
shall not be taken or possessed at any time. No
provision of this code or any other law shall be construed to
authorize the issuance of a permit or license to take a fully
protected fish, and no permit or license previously issued shall have
force or effect for that purpose. However, the department may
authorize the taking of a fully protected fish for necessary
scientific research, including efforts to recover fully protected,
threatened, or endangered species. Before authorizing the take of a
fully protected fish, the department shall make an effort to notify
all affected and interested parties to solicit information and
comments on the proposed authorization. The notification shall be
published in the California Regulatory Notice Register and be made
available to each person who has notified the department, in writing,
of his or her interest in fully protected species and who has
provided an email address, if available, or postal address to the
department. Affected and interested parties shall have 30 days after
notification is published in the California Regulatory Notice
Register to provide relevant information and comments on the proposed
authorization.
(2) As used in this subdivision, "scientific research" does not
include an action taken as part of specified mitigation for a
project, as defined in Section 21065 of the Public Resources Code.
(3) A legally imported fully protected fish may be possessed under
a permit issued by the department.
(b) The following are fully protected fish:
(1) Colorado River squawfish (Ptychocheilus lucius).
(2) Thicktail chub (Gila crassicauda).
(3) Mohave chub (Gila mohavensis).
(4) Lost River sucker (Catostomus luxatus).
(5) Modoc sucker (Catostomus microps).
(6) Shortnose sucker (Chasmistes brevirostris).
(7) Humpback sucker (Xyrauchen texanus).
(8) Owens River pupfish (Cyprinoden radiosus).
(9) Unarmored threespine stickleback (Gasterosteus aculeatus
williamsoni).
(10) Rough sculpin (Cottus asperrimus).
SEC. 4. (a) Section 3.1 of this bill incorporates
amendments to Section 5515 of the Fish and Game Code proposed by both
this bill and Assembly Bill 1845. It shall only become operative if
(1) both bills are enacted and become effective on or before January
1, 2017, (2) each bill amends Section 5515 of the Fish and Game Code,
(3) Assembly Bill 2001 is not enacted or as enacted does not amend
that section, and (4) this bill is enacted after Assembly Bill 1845,
in which case Sections 3, 3.2, and 3.3 of this bill shall not become
operative.
(b) Section 3.2 of this bill incorporates amendments to Section
5515 of the Fish and Game Code proposed by both this bill and
Assembly Bill 2001. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 2017, (2)
each bill amends Section 5515 of the Fish and Game Code, (3) Assembly
Bill 1845 is not enacted or as enacted does not amend that section,
and (4) this bill is enacted after Assembly Bill 2001 in which case
Sections 3, 3.1, and 3.3 of this bill shall not become operative.
(c) Section 3.3 of this bill incorporates amendments to Section
5515 of the Fish and Game Code proposed by this bill, Assembly Bill
1845, and Assembly Bill 2001. It shall only become operative if (1)
all three bills are enacted and become effective on or before January
1, 2017, (2) all three bills amend Section 5515 of the Fish and Game
Code, and (3) this bill is enacted after Assembly Bill 1845 and
Assembly Bill 2001, in which case Sections 3, 3.1, and 3.2 of this
bill shall not become operative.