BILL NUMBER: AB 2488 ENROLLED
BILL TEXT
PASSED THE SENATE AUGUST 24, 2016
PASSED THE ASSEMBLY AUGUST 30, 2016
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, 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 plan, are satisfied. The bill would
require the Metropolitan Water District of Southern California, if it
receives a permit under the bill, to report certain information to
the department 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.
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 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 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 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.
(d) During the permit application process pursuant to Section
2081.10 of the Fish and Game Code, the Metropolitan Water District of
Southern California 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 that section. These measures 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 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. 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 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 relocation into suitable habitat, the dewatering of
the Foothill Feeder, and the reasonable and feasible mimicking of
streamflows. The permit conditions shall be in 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 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
receives a permit under this 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 or Section
2081.6, 2081.7, 2081.10, or 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 or Section
2081.4, 2081.6, 2081.7, 2081.10, or 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. 3.2. Section 5515 of the Fish and Game Code is amended to
read:
5515. (a) (1) Except as provided in this section or Section
2081.6, 2081.7, 2081.10, 2089.7, or 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 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 or Section
2081.4, 2081.6, 2081.7, 2081.10, 2089.7, or 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 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.