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 Californias 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.

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 Californias 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.

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 Californias 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.

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 Californias 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 conditions, including the adoption of an adaptive management process, 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 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.

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 Californias 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 are satisfied.

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, or repair of the Metropolitan Water District of Southern Californias 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 are satisfied.

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, or repair of the Metropolitan Water District of Southern Californias 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 are satisfied.

Existing law prohibits the taking or possession of a fully protected fish, except as provided. 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 make a nonsubstantive change to this provision. 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, or repair of the Metropolitan Water District of Southern Californias 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 are satisfied.

Existing law prohibits the taking or possession of a fully protected fish, except as provided.

This bill would make a nonsubstantive change to this provision.

(Without Reference to File)

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 2488

Author:(Dababneh)

As Amended Ver:August 19, 2016

Majority vote

Original Committee Reference: W., P., & W.

SUMMARY: Permits the Department of Fish and Wildlife (DFW) to authorize the take of unarmored threespine stickleback, a fully protected fish species, attributable to maintenance of the Metropolitan Water District (MWD) of Southern California's Foothill Feeder water supply facility.

The Senate amendments:

1. Add additional legislative findings and declarations that MWD consult with the DFW and the United States Fish and Wildlife Service when applying for a permit under this bill, regarding feasible mitigation and conservation measures that may be adopted, and that the measures be consistent with state and federal wildlife agency recovery plans adopted for the long-term conservation of the unarmored threespine stickleback in the Santa Clara River watershed.
2. Clarify that the incidental take authorized under this bill may cover take attributable to repair, including emergency repair.
3. Add several additional conditions that must be met for the take authorization to be issued, including that the authorization provide for measures to satisfy a conservation standard, that MWD consult with the DFW on feasible measures to avoid and minimize take, and that the permit include conditions to cover biological and scientific considerations, including handling and relocation of stranded fish, dewatering, and streamflows.
4. Require that the permit conditions be in compliance with the mitigation measures and a release plan set forth in a specified environmental impact report (EIR). Allow for the permit conditions to be amended as required by the adaptive management plan or the final EIR.
5. Clarify that this bill does not exempt the project from any other law.
6. Require that MWD report to the DFW within six months after every dewatering of the Foothill Feeder, as specified, and that the report be made available to the public.
7. Add technical language to avoid chaptering out problems with AB 1845 (Dahle) and AB 2001 (Mathis), in the event that these bills also pass and amend the same code sections.

EXISTING LAW:

1. Prohibits the taking or possession of a species listed as a fully protected fish except as specified. The species that are classified as fully protected fish include but are not limited to the unarmored threespine stickleback.
2. Permits the DFW to authorize the taking of a fully protected fish species whose conservation and management is provided for in a Natural Community Conservation Plan approved by the DFW.
3. Permits the DFW to authorize incidental take of the fully protected unarmored threespine stickleback, and the fully protected limestone salamander, under certain limited circumstances, provided specified criteria and standards are met for minimization, mitigation, non-jeopardy, and conservation.
4. Provides for the listing of species as threatened or endangered under federal and state endangered species acts. The DFW may issue permits for incidental take of listed species if specified conditions are met, including mitigation, minimization, monitoring and non-jeopardy requirements.

FISCAL EFFECT: According to the Senate Appropriations Committee, pursuant to Senate Rule 28.8, negligible if any state costs.

COMMENTS: This bill authorizes the DFW to issue an incidental take permit for activities related to routine maintenance and repair, including dewatering and emergency repair, of the Foothill Feeder pipeline in Southern California, in order to authorize MWD to capture and relocate unarmored threespine stickleback, a fully protected fish species, if certain specified conditions are met. In order to protect southern California water supplies, the periodic dewatering, inspection, maintenance, modification, and repair of the Foothill Feeder is necessary, and to complete these actions an incidental take permit for unarmored threespine stickleback is required. The conditions that would be required for the permit include feasible measures to avoid and minimize the take, mitigation and conservation, and development of an adaptive management plan.

The Senate amendments add additional conditions that must be met for the take authorization to be issued, including biological and scientific considerations and criteria for handling and relocation of the fish into suitable habitat, and also added a reporting requirement. The amendments also require the conditions in the permit to be consistent with mitigation measures specified in an EIR prepared for the project, and make other clarifying changes.

Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096 FN: 0004770

 THIRD READING  

Bill No: AB 2488

Author:

:

Vote:

SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/14/16

AYES: Pavley, Stone, Allen, Hertzberg, Hueso, Jackson, Monning, Vidak, Wolk

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 79-0, 5/5/16 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill allows the Department of Fish and Wildlife to authorize the take of unarmored threespine stickleback, a fully protected fish species, to enable the maintenance of the Metropolitan Water District (MWD) of Southern California's Foothill Feeder water supply facility.

Senate Floor Amendments of 8/19/16 are substantive amendments that include a cross-reference to the word “feasible,” authorize the relocation of the fish into suitable habitat, requires the permit conditions to comply with the project description and its mitigation measures and water release plan, and add new reporting language. The amendments also make numerous other technical changes.

ANALYSIS:

Existing law:

1. Prohibits the taking or possession of a species listed as a fully protected fish except as specified. The species that are classified as fully protected fish include but are not limited to the unarmored threespine stickleback.
2. Permits the Department of Fish and Wildlife (DFW) to authorize the taking of a fully protected fish species whose conservation and management is provided for in a Natural Communities Conservation Plan (NCCP) approved by DFW.
3. Authorizes, in two separate and unrelated projects, DFW to issue incidental take permits of the fully protected unarmored threespine stickleback fish, and the fully protected limestone salamander, provided specified criteria and standards are met for minimization, mitigation, non-jeopardy, and conservation.
4. Provides for the listing of species as threatened or endangered under federal and state endangered species acts. DFW may issue permits for incidental take of listed species if specified conditions are met, including mitigation, minimization, monitoring and non-jeopardy requirements.

This bill:

1. States legislative findings and declarations regarding the Foothill Feeder pipeline below Castaic Dam in the County of Los Angeles, which is the primary conduit for water from the State Water Project to the southern California region served by MWD, the importance of the water supplies for the 19 million people served by MWD, and the periodic maintenance activities and dewatering that must occur to protect Southern California water supplies.
2. States further findings that an incidental take permit is needed because these periodic activities require that all or a portion of the Foothill Feeder be dewatered into the Santa Clara River where unarmored threespine stickleback may be present.
3. States additional findings that the Metropolitan Water District should consult with DFW to consider feasible mitigation measures to avoid and minimize incidental take of unarmored threespine stickleback. The findings also state that MWD and DFW should consult with the US Fish and Wildlife Service with regard to feasible mitigation measures for the long-term conservation of species in the Santa Clara River watershed.
4. Permits DFW to authorize the incidental take of unarmored threespine stickleback under the California Endangered Species Act (CESA), if the following conditions are met:
   1. The DFW determines that specified requirements of CESA are met, including that the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, adequate funding is provided for monitoring, and the take permit will not jeopardize the continued existence of the species.
   2. The DFW ensures all further measures necessary to contribute to conservation of the species, as defined under the Natural Communities Conservation Plan (NCCP) Act, are incorporated into the project.
   3. The take authorization provides for development and implementation, in cooperation with the DFW, of an adaptive management process for monitoring and adjusting measures as necessary.
5. Provides that the take authorization shall cover any incidental take attributable to activities that occur within and adjacent to the Santa Clara River and certain tributaries, as specified and described in this bill. Further provides that 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, and as those actions may be modified through the adaptive management plan required.
6. Provides that the word “modification” does not include alterations to expand the maximum physical capacity of the Foothill Feeder to deliver water.
7. States that this bill shall not be construed to exempt these activities from any other law.
8. Adds reporting requirements for public information to be provided by MWD.
9. Makes other conforming code changes and provisions to avoid chaptering out with other bills.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to Assembly Appropriations, costs are absorbable.

SUPPORT: (Verified 8/23/16)

AFSCME Local 1902

Association of California Water Agencies

California Building Industry Association

California Business Industry Association

California Council for Environmental and Economic Balance

California-Nevada Section of American Water Works

Calleguas Municipal Water District

Central City Association of Los Angeles

Cerritos Regional Chamber of Commerce

Chambers of Commerce Alliance, Ventura & Santa Barbara Counties

Coachella Valley Water District

Cucamonga Valley Water District

Desert Water Agency

Eastern Municipal Water District

Employees Association of Metropolitan Water District, AFSCME Local 1902

El Monte/South El Monte Chambers of Commerce

Elsinore Valley Municipal Water District

Gateway Chamber Alliance

Inland Action

La Verne Chamber of Commerce

Las Virgenes Municipal Water District

Mesa Water District

Metropolitan Water District of Southern California

Municipal Water District of Orange County

Oxnard Chambers of Commerce

Southern California Contractors Association

Southern California Water Committee

Southwest California Legislative Council

Southwest Riverside County Association of Realtors

Three Valleys Municipal Water District

United Chambers of Commerce

Upper San Gabriel Valley Municipal Water District

Valley Industry and Commerce Association

Ventura County Economic Development Association

Western Municipal Water District

OPPOSITION: (Verified 8/20/16)

Sierra Club California

ARGUMENTS IN SUPPORT: Information provided by the author states that approximately every 5 years, MWD shuts down and drains the Foothill Feeder to repair any damage or reinforce the structure. Several of the drainage areas along the pipeline route may contain populations of unarmored threespine stickleback, a two to three inch fish that is listed as endangered under both federal and state endangered species acts, and also protected under California law as a fully protected fish species. The author interprets a recent California Supreme Court decision to mean that live relocation of a fully protected species is a "take" and is not permitted under California law. This bill therefore allows DFW to permit the incidental take of the fish for periodic dewatering of the Foothill Feeder, for MWD to contribute to the conservation of the species, and thus ensure reliability of critical water supplies for Southern California. This bill attempts to mirror previous legislative efforts dealing with fully protected species and also incorporates aspects of a conservation standard. MWD's Foothill Feeder is one of the primary conveyance pipelines for State Water Project water supplies to customers primarily in Ventura and Los Angeles Counties.

Other supporters, including many state business associations and local or regional water agencies, emphasize the Foothill Feeder is one of the primary water conveyance pipelines for State Water Project deliveries to the 19 million people served by the MWD. They note that maintenance and repairs to the facility require that MWD shut down and periodically drain water into tributaries that may contain the unarmored threespine stickleback. To avoid impacts to the fish species, MWD extended the time for dewatering in order to lessen changes in stream flows, utilized federally permitted biologists to install nets and monitor dewatering around the clock, and proposed to relocate stranded fish back into the stream. However, like the author, these groups argue that since live relocation of a fully protected species has been interpreted by the courts to constitute "take" of the species, live relocation has not been permitted during routine maintenance of the Foothill Feeder facility. This bill, in their view, will allow DFW to permit the incidental take of the fish for periodic dewatering, contribute to the conservation of this sensitive species, and ensure reliability of the critical water supplies to Southern California.

ARGUMENTS IN OPPOSITION: The Sierra Club has been in discussions with the sponsor and author which have resulted in numerous changes, since the bill was introduced, including:

1. Clarification that the Foothill Feeder will not be modified in a way that expands its capacity.
2. Added a monitoring component to the adaptive management process and provide that these must substantially contribute the long-term conservation of the unarmored threespine stickleback.
3. Deleted as duplicative a provision that MWD is proportionally responsible for its impacts which is already provided for in the state endangered species act.
4. Added the provision related to the on-site biologist
5. Added provision to require MWD’s water releases to mimic the natural cycles and amounts of flows in the receiving streams.
6. Add public notice requirements.

ASSEMBLY FLOOR: 79-0, 5/5/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Beth Gaines

Prepared by:

8/23/16 15:34:01

**** END ****

 THIRD READING  

Bill No: AB 2488

Author:

:

Vote:

SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/14/16

AYES: Pavley, Stone, Allen, Hertzberg, Hueso, Jackson, Monning, Vidak, Wolk

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 79-0, 5/5/16 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill allows the Department of Fish and Wildlife to authorize the take of unarmored threespine stickleback, a fully protected fish species, to enable the maintenance of the Metropolitan Water District (MWD) of Southern California's Foothill Feeder water supply facility.

Senate Floor Amendments of 8/19/16 are substantive amendments that include a cross-reference to the word “feasible,” authorize the relocation of the fish into suitable habitat, requires the permit conditions to comply with the project description and its mitigation measures and water release plan, and add new reporting language. The amendments also make numerous other technical changes.

ANALYSIS:

Existing law:

1. Prohibits the taking or possession of a species listed as a fully protected fish except as specified. The species that are classified as fully protected fish include but are not limited to the unarmored threespine stickleback.
2. Permits the Department of Fish and Wildlife (DFW) to authorize the taking of a fully protected fish species whose conservation and management is provided for in a Natural Communities Conservation Plan (NCCP) approved by DFW.
3. Authorizes, in two separate and unrelated projects, DFW to issue incidental take permits of the fully protected unarmored threespine stickleback fish, and the fully protected limestone salamander, provided specified criteria and standards are met for minimization, mitigation, non-jeopardy, and conservation.
4. Provides for the listing of species as threatened or endangered under federal and state endangered species acts. DFW may issue permits for incidental take of listed species if specified conditions are met, including mitigation, minimization, monitoring and non-jeopardy requirements.

This bill:

1. States legislative findings and declarations regarding the Foothill Feeder pipeline below Castaic Dam in the County of Los Angeles, which is the primary conduit for water from the State Water Project to the southern California region served by MWD, the importance of the water supplies for the 19 million people served by MWD, and the periodic maintenance activities and dewatering that must occur to protect Southern California water supplies.
2. States further findings that an incidental take permit is needed because these periodic activities require that all or a portion of the Foothill Feeder be dewatered into the Santa Clara River where unarmored threespine stickleback may be present.
3. States additional findings that the Metropolitan Water District should consult with DFW to consider feasible mitigation measures to avoid and minimize incidental take of unarmored threespine stickleback. The findings also state that MWD and DFW should consult with the US Fish and Wildlife Service with regard to feasible mitigation measures for the long-term conservation of species in the Santa Clara River watershed.
4. Permits DFW to authorize the incidental take of unarmored threespine stickleback under the California Endangered Species Act (CESA), if the following conditions are met:
   1. The DFW determines that specified requirements of CESA are met, including that the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, adequate funding is provided for monitoring, and the take permit will not jeopardize the continued existence of the species.
   2. The DFW ensures all further measures necessary to contribute to conservation of the species, as defined under the Natural Communities Conservation Plan (NCCP) Act, are incorporated into the project.
   3. The take authorization provides for development and implementation, in cooperation with the DFW, of an adaptive management process for monitoring and adjusting measures as necessary.
5. Provides that the take authorization shall cover any incidental take attributable to activities that occur within and adjacent to the Santa Clara River and certain tributaries, as specified and described in this bill. Further provides that 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, and as those actions may be modified through the adaptive management plan required.
6. Provides that the word “modification” does not include alterations to expand the maximum physical capacity of the Foothill Feeder to deliver water.
7. States that this bill shall not be construed to exempt these activities from any other law.
8. Adds reporting requirements for public information to be provided by MWD.
9. Makes other conforming code changes and provisions to avoid chaptering out with other bills.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

According to Assembly Appropriations, costs are absorbable.

SUPPORT: (Verified 8/20/16)

Association of California Water Agencies

California Business Industry Association

California Council for Environmental and Economic Balance

Calleguas Municipal Water District

Central City Association of Los Angeles

Cerritos Regional Chamber of Commerce

Chambers of Commerce Alliance, Ventura & Santa Barbara Counties

Coachella Valley Water District

Cucamonga Valley Water District

Desert Water Agency

Eastern Municipal Water District

Employees Association of Metropolitan Water District, AFSCME Local 1902

El Monte/South El Monte Chambers of Commerce

Elsinore Valley Municipal Water District

Gateway Chamber Alliance

Inland Action

La Verne Chamber of Commerce

Las Virgenes Municipal Water District

Mesa Water District

Metropolitan Water District of Southern California

Municipal Water District of Orange County

Oxnard Chambers of Commerce

Southern California Contractors Association

Southern California Water Committee

Southwest California Legislative Council

Southwest Riverside County Association of Realtors

Three Valleys Municipal Water District

United Chambers of Commerce

Upper San Gabriel Valley Municipal Water District

Valley Industry and Commerce Association

Ventura County Economic Development Association

Western Municipal Water District

OPPOSITION: (Verified 8/20/16)

Sierra Club California

ARGUMENTS IN SUPPORT: Information provided by the author states that approximately every 5 years, MWD shuts down and drains the Foothill Feeder to repair any damage or reinforce the structure. Several of the drainage areas along the pipeline route may contain populations of unarmored threespine stickleback, a two to three inch fish that is listed as endangered under both federal and state endangered species acts, and also protected under California law as a fully protected fish species. The author interprets a recent California Supreme Court decision to mean that live relocation of a fully protected species is a "take" and is not permitted under California law. This bill therefore allows DFW to permit the incidental take of the fish for periodic dewatering of the Foothill Feeder, for MWD to contribute to the conservation of the species, and thus ensure reliability of critical water supplies for Southern California. This bill attempts to mirror previous legislative efforts dealing with fully protected species and also incorporates aspects of a conservation standard. MWD's Foothill Feeder is one of the primary conveyance pipelines for State Water Project water supplies to customers primarily in Ventura and Los Angeles Counties.

Other supporters, including many state business associations and local or regional water agencies, emphasize the Foothill Feeder is one of the primary water conveyance pipelines for State Water Project deliveries to the 19 million people served by the MWD. They note that maintenance and repairs to the facility require that MWD shut down and periodically drain water into tributaries that may contain the unarmored threespine stickleback. To avoid impacts to the fish species, MWD extended the time for dewatering in order to lessen changes in stream flows, utilized federally permitted biologists to install nets and monitor dewatering around the clock, and proposed to relocate stranded fish back into the stream. However, like the author, these groups argue that since live relocation of a fully protected species has been interpreted by the courts to constitute "take" of the species, live relocation has not been permitted during routine maintenance of the Foothill Feeder facility. This bill, in their view, will allow DFW to permit the incidental take of the fish for periodic dewatering, contribute to the conservation of this sensitive species, and ensure reliability of the critical water supplies to Southern California.

ARGUMENTS IN OPPOSITION: The Sierra Club has been in discussions with the sponsor and author which have resulted in numerous changes, since the bill was introduced, including:

1. Clarification that the Foothill Feeder will not be modified in a way that expands its capacity.
2. Added a monitoring component to the adaptive management process and provide that these must substantially contribute the long-term conservation of the unarmored threespine stickleback.
3. Deleted as duplicative a provision that MWD is proportionally responsible for its impacts which is already provided for in the state endangered species act.
4. Added the provision related to the on-site biologist
5. Added provision to require MWD’s water releases to mimic the natural cycles and amounts of flows in the receiving streams.
6. Add public notice requirements.

ASSEMBLY FLOOR: 79-0, 5/5/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Beth Gaines

Prepared by:

8/22/16 20:37:54

**** END ****

 THIRD READING  

Bill No: AB 2488

Author:

:

Vote:

SENATE NATURAL RES. & WATER COMMITTEE: 9-0, 6/14/16

AYES: Pavley, Stone, Allen, Hertzberg, Hueso, Jackson, Monning, Vidak, Wolk

SENATE APPROPRIATIONS COMMITTEE: Senate Rule 28.8

ASSEMBLY FLOOR: 79-0, 5/5/16 (Consent) - See last page for vote

SUBJECT:

SOURCE: Author

DIGEST: This bill allows the Department of Fish and Wildlife (DFW) to authorize the take of unarmored threespine stickleback, a fully protected fish species, to enable the maintenance of the Metropolitan Water District (MWD) of Southern California's Foothill Feeder water supply facility.

ANALYSIS:

Existing law:

1. Prohibits the taking or possession of a species listed as a fully protected fish except as specified. The species that are classified as fully protected fish include but are not limited to the unarmored threespine stickleback.
2. Permits the DFW to authorize the taking of a fully protected fish species whose conservation and management is provided for in a Natural Communities Conservation Plan (NCCP) approved by DFW.
3. Authorizes, in two separate and unrelated projects, DFW to issue incidental take permits of the fully protected unarmored threespine stickleback fish, and the fully protected limestone salamander, provided specified criteria and standards are met for minimization, mitigation, non-jeopardy, and conservation.
4. Provides for the listing of species as threatened or endangered under federal and state endangered species acts. DFW may issue permits for incidental take of listed species if specified conditions are met, including mitigation, minimization, monitoring and non-jeopardy requirements.

This bill:

1. States legislative findings and declarations regarding the Foothill Feeder pipeline below Castaic Dam in the County of Los Angeles, which is the primary conduit for water from the State Water Project to the southern California region served by MWD, the importance of the water supplies for the 19 million people served by MWD, and the periodic maintenance activities and dewatering that must occur to protect Southern California water supplies.
2. States further findings that an incidental take permit is needed because these periodic activities require that all or a portion of the Foothill Feeder be dewatered into the Santa Clara River where unarmored threespine stickleback may be present.
3. Requires consultation between MWD and DFW and the US Fish and Wildlife Service to consider feasible mitigation measures to avoid and minimize incidental take of unarmored threespine stickleback. Such mitigation measures shall be consistent with any federal or state recovery plan for the species.
4. Permits DFW to authorize the incidental take of unarmored threespine stickleback under the California Endangered Species Act (CESA), if the following conditions are met:
   1. The DFW determines that specified requirements of CESA are met, including that the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, adequate funding is provided for monitoring, and the take permit will not jeopardize the continued existence of the species.
   2. The DFW ensures all further measures necessary to contribute to conservation of the species, as defined under the Natural Communities Conservation Plan (NCCP) Act, are incorporated into the project.
   3. A biologist with relevant experience is on duty whenever an activity is conducted that may affect the species.
   4. The take authorization provides for development and implementation, in cooperation with the DFW, of an adaptive management process for monitoring and adjusting measures as necessary.
   5. MWD is required to consider mitigation measures to avoid and minimize take of the species.
5. Provides that the take authorization shall cover any incidental take attributable to activities that occur within and adjacent to the Santa Clara River and certain tributaries, as specified and described in this bill. Further provides that 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, and as those actions may be modified through the adaptive management plan required.
6. Provides that the word “modification” does not include alterations to expand the maximum physical capacity of the Foothill Feeder to deliver water.
7. Requires the permit to be in substantial compliance with a previous environmental impact report that describes criteria for handling of stranded fish and the reasonable and feasible mimicking of streamflows.
8. Requires public reporting on the activities every 10 years.
9. States that this bill shall not be construed to exempt these activities from any other law and makes other conforming code changes.

FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: No

SUPPORT: (Verified 8/1/16)

Association of California Water Agencies

California Business Industry Association

California Council for Environmental and Economic Balance

Calleguas Municipal Water District

Central City Association of Los Angeles

Cerritos Regional Chamber of Commerce

Chambers of Commerce Alliance, Ventura & Santa Barbara Counties

Coachella Valley Water District

Cucamonga Valley Water District

Desert Water Agency

Eastern Municipal Water District

Employees Association of Metropolitan Water District, AFSCME Local 1902

El Monte/South El Monte Chambers of Commerce

Elsinore Valley Municipal Water District

Gateway Chamber Alliance

Inland Action

La Verne Chamber of Commerce

Las Virgenes Municipal Water District

Mesa Water District

Metropolitan Water District of Southern California

Municipal Water District of Orange County

Oxnard Chambers of Commerce

Southern California Contractors Association

Southern California Water Committee Southwest California Legislative Council Southwest Riverside County Association of Realtors

Three Valleys Municipal Water District

United Chambers of Commerce

Upper San Gabriel Valley Municipal Water District

Valley Industry and Commerce Association

Ventura County Economic Development Association

Western Municipal Water District

OPPOSITION: (Verified 8/1/16)

Sierra Club California

ARGUMENTS IN SUPPORT: Information provided by the author states that approximately every 5 years, MWD shuts down and drains the Foothill Feeder to repair any damage or reinforce the structure. Several of the drainage areas along the pipeline route may contain populations of unarmored threespine stickleback, a two to three inch fish that is listed as endangered under both federal and state endangered species acts, and also protected under California law as a fully protected fish species. The author interprets a recent California Supreme Court decision to mean that live relocation of a fully protected species is a "take" and is not permitted under California law. This bill therefore allows DFW to permit the incidental take of the fish for periodic dewatering of the Foothill Feeder, for MWD to contribute to the conservation of the species, and thus ensure reliability of critical water supplies for Southern California. This bill attempts to mirror previous legislative efforts dealing with fully protected species and also incorporates aspects of a conservation standard. MWD's Foothill Feeder is one of the primary conveyance pipelines for State Water Project water supplies to customers primarily in Ventura and Los Angeles Counties.

Other supporters, including many state business associations and local or regional water agencies, emphasize the Foothill Feeder is one of the primary water conveyance pipelines for State Water Project deliveries to the 19 million people served by the MWD. They note that maintenance and repairs to the facility require that MWD shut down and periodically drain water into tributaries that may contain the unarmored threespine stickleback. To avoid impacts to the fish species, MWD extended the time for dewatering in order to lessen changes in stream flows, utilized federally permitted biologists to install nets and monitor dewatering around the clock, and proposed to relocate stranded fish back into the stream.

However, like the author, these groups argue that since live relocation of a fully protected species has been interpreted by the courts to constitute "take" of the species, live relocation has not been permitted during routine maintenance of the Foothill Feeder facility. This bill, in their view, will allow DFW to permit the incidental take of the fish for periodic dewatering, contribute to the conservation of this sensitive species, and ensure reliability of the critical water supplies to Southern California.

ARGUMENTS IN OPPOSITION: Although discussions are continuing between the stakeholders, many amendments from the Sierra Club have already been adopted. The remaining open issues are largely technical and include such items as a definition of “feasible,” a consistent definition of “adaptive management” and clarifications on the geographic boundaries of the project.

ASSEMBLY FLOOR: 79-0, 5/5/16

AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon

NO VOTE RECORDED: Beth Gaines

Prepared by:

8/3/16 18:40:29

**** END ****

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Fran Pavley, Chair

2015 - 2016 Regular

Bill No: AB Hearing Date: June 14, 2016

Subject: Protected species: unarmored threespine stickleback: taking or possession

BACKGROUND AND EXISTING LAW

1) Prohibits the taking or possession of a species listed as a fully protected fish except as specified. The species that are classified as fully protected fish include but are not limited to the unarmored threespine stickleback.

2) Permits the Department of Fish and Wildlife (DFW) to authorize the taking of a fully protected fish species whose conservation and management is provided for in a Natural Communities Conservation Plan (NCCP) approved by DFW.

3) Authorizes, in two separate and unrelated projects, DFW to issue incidental take permits of the fully protected unarmored threespine stickleback fish, and the fully protected limestone salamander, provided specified criteria and standards are met for minimization, mitigation, non-jeopardy, and conservation.

4) Provides for the listing of species as threatened or endangered under federal and state endangered species acts. DFW may issue permits for incidental take of listed species if specified conditions are met, including mitigation, minimization, monitoring and non-jeopardy requirements.

PROPOSED LAW

This bill would allow the Department of Fish and Wildlife to authorize the take of unarmored threespine stickleback, a fully protected fish species, to enable the maintenance of the Metropolitan Water District (MWD) of Southern California's Foothill Feeder water supply facility. Specifically, this bill:

1. States legislative findings and declarations regarding the Foothill Feeder pipeline below Castaic Dam in the County of Los Angeles, which is the primary conduit for water from the State Water Project to the southern California region served by MWD, the importance of the water supplies for the 19 million people served by MWD, and the periodic maintenance activities and dewatering that must occur to protect Southern California water supplies.
2. States further findings that an incidental take permit is needed because these periodic activities require that all or a portion of the Foothill Feeder be dewatered into the Santa Clara River where unarmored threespine stickleback may be present.
3. States additional findings that the Metropolitan Water District should consult with DFW to consider feasible mitigation measures to avoid and minimize incidental take of unarmored threespine stickleback, taking into account physical, technological, logistical, legal, financial, and environmental constraints. The findings also state that MWD and DFW should consult with the US Fish and Wildlife Service with regard to feasible mitigation measures for the long-term conservation of species in the Santa Clara River watershed.
4. Permits DFW to authorize the incidental take of unarmored threespine stickleback under the California Endangered Species Act (CESA), if the following conditions are met:
5. The DFW determines that specified requirements of CESA are met, including that the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, adequate funding is provided for monitoring, and the take permit will not jeopardize the continued existence of the species.
6. The DFW ensures all further measures necessary to contribute to conservation of the species, as defined under the Natural Communities Conservation Plan (NCCP) Act, are incorporated into the project.
7. The take authorization provides for development and implementation, in cooperation with the DFW, of an adaptive management process for monitoring and adjusting measures as necessary.
8. Provides that the take authorization shall cover any incidental take attributable to activities that occur within and adjacent to the Santa Clara River and certain tributaries, as specified and described in this bill. Further provides that 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, and as those actions may be modified through the adaptive management plan required.
9. Provides that the word “modification” does not include alterations to expand the maximum physical capacity of the Foothill Feeder to deliver water.
10. States that this bill shall not be construed to exempt these activities from any other law.
11. Makes other conforming code changes.

ARGUMENTS IN SUPPORT

Information provided by the author states that approximately every 5 years, MWD shuts down and drains the Foothill Feeder to repair any damage or reinforce the structure. Several of the drainage areas along the pipeline route may contain populations of unarmored threespine stickleback, a two to three inch fish that is listed as endangered under both federal and state endangered species acts, and also protected under California law as a fully protected fish species. The author interprets a recent California Supreme Court decision to mean that live relocation of a fully protected species is a "take" and is not permitted under California law. This bill therefore allows DFW to permit the incidental take of the fish for periodic dewatering of the Foothill Feeder, for MWD to contribute to the conservation of the species, and thus ensure reliability of critical water supplies for Southern California. This bill attempts to mirror previous legislative efforts dealing with fully protected species and also incorporates aspects of a conservation standard. MWD's Foothill Feeder is one of the primary conveyance pipelines for State Water Project water supplies to customers primarily in Ventura and Los Angeles Counties.

Other supporters, including many state business associations and local or regional water agencies, emphasize the Foothill Feeder is one of the primary water conveyance pipelines for State Water Project deliveries to the 19 million people served by the MWD. They note that maintenance and repairs to the facility require that MWD shut down and periodically drain water into tributaries that may contain the unarmored threespine stickleback. To avoid impacts to the fish species, MWD extended the time for dewatering in order to lessen changes in stream flows, utilized federally permitted biologists to install nets and monitor dewatering around the clock, and proposed to relocate stranded fish back into the stream. However, like the author, these groups argue that since live relocation of a fully protected species has been interpreted by the courts to constitute "take" of the species, live relocation has not been permitted during routine maintenance of the Foothill Feeder facility. This bill, in their view, will allow DFW to permit the incidental take of the fish for periodic dewatering, contribute to the conservation of this sensitive species, and ensure reliability of the critical water supplies to Southern California.

ARGUMENTS IN OPPOSITION

The Sierra Club has been in discussions with the sponsor and author and several concerns are apparent from its suggested amendments. Many of these suggestions seek clarifications to the bill while others are policy objections.

These include:

1. Clarification that the Foothill Feeder will not be modified in a way that expands its capacity.
2. Add in the findings that that MWD will provide all feasible steps to avoid and minimize take of the unarmored threespine stickleback before any incidental take occurs.
3. Add a monitoring component to the adaptive management process and provide that these must substantially contribute the long-term conservation of the unarmored threespine stickleback.
4. Delete the provision that MWD is proportionally responsible for its impacts.
5. Qualify the provision related to the on-site biologist to require that the biologist is independent of MWD and DFW, not an employee of either, and has substantial relevant experience evaluating impacts to inland freshwater fisheries.
6. Limit take authorization to relocation of stranded fish, provide explicit statutory direction regarding re-location of stranded fish, re-state the provision to avoid and minimize take, and require MWD’s water releases to mimic the natural cycles and amounts of flows in the receiving streams.
7. Add public notice requirements.
8. Limit take authority to 5 years from the issuance of permit; authorize DFW to renew take for one additional 5 year period after consideration of the best available scientific information on the unarmored threespine stickleback and data obtained pursuant to the monitoring program and adaptive management process.

COMMENTS

1. Some opposition concerns have been addressed. The author’s most recent amendments addressed the issue to prohibit modifications that expand the pipe’s capacity.
2. The author also added intent language (similar to the intent language requested by the opposition) on the need to avoid and minimize take.
3. Further, the author added intent language requiring DFW and MWD to consult regarding those measures, and added intent language that both of those agencies should consult with the US Fish and Wildlife Service regarding mitigation measures that would be consistent with a long-term conservation strategy for species in the Santa Clara River watershed.
4. Typically, the consultation is initiated by the permit applicant, so the first amendment would simply reverse the ways the parties are described in the bill so that MWD consults with DFW rather than vice versa. (Amendment 1.)
5. The intent provisions added by the author should be converted into operational provisions and moved into section 2081.10. Thus, on page 2, line 29 and page 3, line 4, the amendments would delete the “intent of the Legislature” so that the consultation provisions would become requirements as would participation in a comprehensive multiparty approach to the long-term conservation of the species in the Santa Clara River watershed. (Amendment 2).
6. The Sierra Club requested that the monitoring and adaptive management program cross-reference a provision in the NCCP Act, which does not seem appropriate since the scope and scale of an NCCP is so much larger than an incidental take permit. On the other hand, it seems appropriate to underscore that the adaptive management program and monitoring does comply with the conservation standard of section 2805. (Amendment 3.) In this same provision, the Sierra Club requested that the cross reference to section 2052.1 be deleted. This is appropriate because that section replicates the “rough proportionality” provision that is already in section 2081 (b)(2). (Amendment 4).
7. The Sierra Club requested a series of amendments regarding the protocols that would be followed for stranded fish and their replacement into the stream. These requests, even if scientifically valid, are much too specific for a statute. However, these are the sort of topics that should be addressed in permit conditions or protocols that are incorporated or appended to a permit. The bill should be amended to require consideration and possible resolution of such questions, while at the same time providing MWD with an exception to act in an emergency situation when necessary. Metropolitan has an existing protocol for mimicking streamflows and has conducted an EIR for this project that addresses many of the issues raised by the Sierra Club. The bill should cross-reference that document, which is “Foothill Feeder Repair and Future Inspections Project Environmental Impact Report, January 2005, State Clearinghouse Number 2005071082.” (Amendment 5).
8. It is important for the on-site biologist to have relevant experience in inland freshwater fisheries, but it is probably not Legislature’s job to decide who employs such a scientist. Staff recommends that the bill retain the provision that a biologist be on duty whenever an activity is conducted that may affected the unarmored threespined stickleback, and add a provision that he or she have the specified relevant experience, but without regard to whether the biologist is hired by MWD or DFW or someone else. (Amendment 6.)
9. The Sierra Club requested a different public notice provision than what is already in place in the fully protected fish statute, which staff does not recommend.
10. It also requested a 5 year limit (with a possible 5 year extension) on the shelf-life of the incidental take permit. This is a project that is conducted every 5 years, so this amendment would have the effect of requiring MWD to seek legislation at a minimum of five (or 10) years. Endangered species permits are not currently time-limited, and while this is an interesting question, this bill is not the place to open that discussion.
11. To address in part the Sierra Club’s concern that the adaptive management process and adaptive management process be linked to the long-term conservation of the unarmored three-spined stickleback, staff recommends an amendment requiring MWD to report to DFW every 10 years (in a publicly available document) on the de-watering program, the effect on the species and all information on the adaptive management and monitoring program. (Amendment 7.)

SUGGESTED AMENDMENTS

AMENDMENT 1

Reverse the order of the parties regarding consultation.

AMENDMENT 2

Page 2, line 29 and page 3, line 4, the amendments would delete the “intent of the Legislature”

AMENDMENT 3

Page 3, line 30, add “and meet the conservation standard of section 2085(d).”

AMENDMENT 4

Page 3, line 31, delete sentence

AMENDMENT 5

Add provision in 2081.10(c) for a protocol or permit conditions document to establish criteria for stranded fish, replacing them into the stream, the dewatering of the Foothill Feeder, the reasonable mimicking of streamflows, as well as other biological or scientific considerations, and that these permit conditions are in substantial compliance with the certified EIR which is Foothill Feeder Repair and Future Inspections Project Environmental Impact Report, January 2005, State Clearinghouse Number 2005071082.

AMENDMENT 6

Page 3, line 32: To the provision that a biologist shall be on duty, add that the biologist must have substantial relevant experience evaluating impacts to inland freshwater fisheries.

AMENDMENT 7

Page 4, line 21, add a new (f): MWD shall report every 10 years in a report to DFW that is available to the public on the effectiveness of the adaptive management process and the monitoring program in contributing to the conservation of the unarmored three spined stickleback.

SUPPORT

Association of California Water Agencies

California Business Industry Association

California Council for Environmental and Economic Balance

Calleguas Municipal Water District

Central City Association of Los Angeles

Cerritos Regional Chamber of Commerce

Chambers of Commerce Alliance, Ventura & Santa Barbara Counties

Coachella Valley Water District

Cucamonga Valley Water District

Desert Water Agency

Eastern Municipal Water District

Employees Association of Metropolitan Water District, AFSCME Local 1902

El Monte/South El Monte Chambers of Commerce

Elsinore Valley Municipal Water District

Gateway Chamber Alliance

Inland Action

La Verne Chamber of Commerce

Las Virgenes Municipal Water District

Mesa Water District

Metropolitan Water District of Southern California

Municipal Water District of Orange County

Oxnard Chambers of Commerce

Southern California Contractors Association

Southern California Water Committee

Southwest California Legislative Council

Southwest Riverside County Association of Realtors

Three Valleys Municipal Water District

United Chambers of Commerce

Upper San Gabriel Valley Municipal Water District

Valley Industry and Commerce Association

Ventura County Economic Development Association

Western Municipal Water District

OPPOSITION

Sierra Club California

-- END --

Date of Hearing: April 27, 2016

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez, Chair

ABPCA Bill Id:AB 2488

Author:(Dababneh) – As Amended Ver:April 14, 2016

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill allows the Department of Fish and Wildlife (DFW) to authorize the incidental take of unarmored threespine sickleback, a fully protected fish species, associated with activities necessary for the maintenance of the Foothill Feeder water supply facility in southern California.

FISCAL EFFECT:

DFW costs are absorbable.

COMMENTS:

1. Purpose. Approximately every 5 years, the Metropolitan Water District of Southern California (MWD) shuts down and drains the Foothill Feeder to repair any damage and reinforce the structure. Several of the drainage areas along the pipeline route may contain populations of unarmored threespine stickleback which is listed as endangered under both federal and state law, and is also protected under state law as a fully protected fish species.

A recent California Supreme Court decision held that live relocation of a fully protected species is a take and is not permitted under state law. According to the author, this bill will allow DFW to permit the carefully managed incidental take of fish for the periodic dewatering of the Foothill Feeder.

1. Background. The unarmored threespine stickleback, is a state and federally listed endangered species and a State of California Fully Protected Species. Unarmored threespine stickleback have a very limited distribution, with the southern California population represented in only three drainages: Upper Santa Clara River; Bouquet Creek; and Soledad Canyon Creek. The U.S. Fish and Wildlife Service (USFWS) and DFW drafted a joint Recovery Plan in 2012 to address the declining species.

The Foothill Feeder facility, owned and operated by MWD, is one of the primary water conveyance pipelines for State Water Project deliveries to the 19 million people served by MWD. To avoid impacts to the fish species, MWD extended the time for dewatering in order to lessen changes in stream flows, utilized federally permitted biologists to install nets and monitor dewatering around the clock, and proposed to relocate stranded fish back into the stream. The courts have interpreted that the relocation of live species constitutes a take. Thus, live relocation of a fully protected fish species is not

1. Fully Protected Species. Legislative and regulatory efforts to protect fish and wildlife began long before the enactment of CESA in 1970. Initial efforts date back to 1909, including laws to protect nongame birds (1909) and sea otters (1913).

In 1957, efforts to identify and provide additional protection for rare animals or animals facing possible extinction resulted in lists identifying fish, mammals, amphibians, birds and reptiles. Statutes were enacted to prohibit any take of the identified species.

Unlike species that are listed as threatened or endangered under CESA, the fully protected species law does not allow for incidental or accidental take nor does it provide for mitigation. Fully Protected species may not be taken or possessed at any time, and no licenses or permits may be issued for their take except for scientific research or the relocation of bird species for the protection of livestock.

Although most fully protected species have also been listed as threatened or endangered species under the more recent, science-based endangered species laws, lawful take and mitigation provisions do not apply.

1. Prior and related legislation: AB 353 (Lackey), Chapter 620, Statutes of 2015, authorized DFW to allow the take of a fully protected fish species known as the unarmored threespine stickleback for a habitat restoration project on Bouquet Creek.

AB 1973 (Olsen), Chapter 121, Statutes of 2012, authorized DFW to allow incidental take of the limestone salamander, a fully protected amphibian species for a highway restoration project in Mariposa County.

This year, both AB 1845 (Dahle) and AB 2001(Mathis) authorize the take of a fully protected fish species. AB 1845 allows the DFW to authorize the take of rough sculpin, a fully protected fish, resulting from the repair of Spring Creek Bridge in Shasta County. AB 2001 authorizes take for scientific research or for recovery efforts. Both bills passed this Committee.

In order to allow essential projects to move forward, as well as provide for species protection and recovery, the Legislature may wish to consider adopting a comprehensive, science-based approach for fully protected species within the provisions of CESA.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 12, 2016

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Marc Levine, Chair

ABPCA Bill Id:AB 2488 (

Author:Dababneh) – As Amended Ver:March 31, 2016

SUBJECT: Protected species: unarmored threespine stickleback; taking or possession

SUMMARY: Permits the Department of Fish and Wildlife (DFW) to authorize the take of unarmored threespine stickleback, a fully protected fish species, attributable to maintenance of the Metropolitan Water District (MWD) of Southern California's Foothill Feeder water supply facility. Specifically, this bill:

1. States legislative findings and declarations regarding the Foothill Feeder pipeline below Castaic Dam in the County of Los Angeles, which is the primary conduit for water from the State Water Project to the southern California region served by MWD, the importance of the water supplies for the 19 million people served by MWD, and the periodic maintenance activities and dewatering that must occur to protect Southern California water supplies. States further findings that an incidental take permit is needed because these periodic activities require that all or a portion of the Foothill Feeder be dewatered into the Santa Clara River where unarmored threespine stickleback may be present.
2. Permits DFW to authorize the incidental take of unarmored threespine stickleback under the California Endangered Species Act (CESA), if the following conditions are met:
   1. The DFW determines that specified requirements of CESA are met, including that the take is incidental to an otherwise lawful activity, the impacts are minimized and fully mitigated, adequate funding is provided for monitoring, and the take permit will not jeopardize the continued existence of the species.
   2. The DFW ensures all further measures necessary to contribute to conservation of the species, as defined under the Natural Communities Conservation Plan (NCCP) Act, are incorporated into the project.
   3. The take authorization provides for development and implementation, in cooperation with the DFW, of an adaptive management process for monitoring and adjusting measures as necessary.
3. Provides that the take authorization shall cover any incidental take attributable to activities that occur within and adjacent to the Santa Clara River and certain tributaries, as specified and described in this bill. Further provides that 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, and as those actions may be modified through the adaptive management plan required.
4. States that this bill shall not be construed to exempt these activities from any other law.
5. Makes other conforming code changes.

EXISTING LAW:

1. Prohibits the taking or possession of a species listed as a fully protected fish except as specified. The species that are classified as fully protected fish include but are not limited to the unarmored threespine stickleback.
2. Permits DFW to authorize the taking of a fully protected fish species whose conservation and management is provided for in an NCCP approved by DFW.
3. Permits DFW to authorize incidental take of the fully protected unarmored threespine stickleback fish, and the fully protected limestone salamander, under certain limited circumstances, provided specified criteria and standards are met for minimization, mitigation, non-jeopardy, and conservation.
4. Provides for the listing of species as threatened or endangered under federal and state endangered species acts. The DFW may issue permits for incidental take of listed species if specified conditions are met, including mitigation, minimization, monitoring and non-jeopardy requirements.

FISCAL EFFECT: Unknown

COMMENTS: This bill authorizes the DFW to issue an incidental take permit for activities related to routine maintenance and repair, including dewatering, of the Foothill Feeder pipeline in Southern California, in order to authorize MWD to capture and relocate unarmored threespine stickleback, a fully protected fish species, if certain specified conditions are met, including mitigation and contribution towards recovery of the species.

1. Author's Statement: Approximately every 5 years, MWD shuts down and drains the Foothill Feeder to repair any damage or reinforce the structure. Several of the drainage areas along the pipeline route may contain populations of unarmored threespine stickleback, a two to three inch fish that is listed as endangered under both federal and state endangered species acts, and also protected under California law as a fully protected fish species. A recent California Supreme Court decision held that live relocation of a fully protected species is a "take" and is not permitted under California law. This bill will allow DFW to permit the carefully managed incidental take of the fish for periodic dewatering of the Foothill Feeder, contribute to the conservation of the species, and ensure reliability of critical water supplies for Southern California. This bill attempts to mirror previous legislative efforts and also incorporates aspects of a conservation standard. MWD's Foothill Feeder is one of the primary conveyance pipelines for State Water Project water supplies to customers primarily in Ventura and Los Angeles Counties. This bill will permit DFW to authorize incidental take of the fish to allow periodic dewatering of the pipeline for scheduled inspections, maintenance, and repairs, as well as for unplanned circumstances.
2. Background: The unarmored threespine stickleback, Gasterosteus aculeatus williamsoni, is a state and federally listed endangered species and a State of California Fully Protected Species. Unarmored threespine stickleback have a very limited distribution, with the southern California population represented in only three drainages: Upper Santa Clara River (extremely limited), Bouquet Creek (extremely limited) and Soledad Canyon Creek (possibly extirpated). These declining populations have driven a joint Recovery Plan between the U.S. Fish and Wildlife Service (USFWS) and DFW drafted in 2012. The DFW and USFWS engaged in some relocation efforts in 2014. Extreme drought conditions have exacerbated the status of the dwindling populations in the Santa Clara River and monitoring for the fish in pools continued in 2015.
   
   The Legislature has recently considered similar requests for exceptions to allow take of fully protected species for specific projects. The most related bill was AB 353 (Lackey), Chapter 620, Statutes of 2015, which also authorized take of unarmored threespine stickleback for a road project in Mariposa County. These other bills included provisions requiring compliance with CESA conditions for mitigation, minimization, avoidance of jeopardy, and monitoring, and required that the project include measures to meet a conservation standard. This bill includes similar protective provisions, however, with regard to the requirement to meet a conservation standard for recovery, this bill only requires that measures be taken that contribute toward conservation of the species, as opposed to meeting the conservation standard. AB 353 required that the take authorization include development and implementation, in cooperation with state and federal agencies, of an adaptive management process that substantially contributes to the long-term conservation of the unarmored threespine stickleback. AB 353 also required the DFW to ensure that all further measures necessary to satisfy the conservation standard were met. AB 1845 (Dahle), a bill which was heard in and passed this committee on March 29, 2016, similarly requires that DFW ensure that all further measures necessary to satisfy the conservation standard of subdivision (d) of Section 2805 are incorporated into the project. Conservation, as defined under that section, is essentially a recovery standard, and includes the use of methods and procedures necessary to bring the species to the point at which listing under endangered species acts will not be necessary.
3. Prior and Related Legislation: AB 353 (Lackey), Chapter 620, Statutes of 2015, permitted DFW to authorize take of unarmored threespine stickleback resulting from a habitat restoration project on Bouquet Creek if specified conditions are met, including CESA requirements for minimization and mitigation, necessary measures to satisfy a conservation standard for recovery, and an adaptive management process that substantially contributes to the long-term conservation of the species.
   
   AB 1973 (Olsen), Chapter 121, Statutes of 2012, permitted DFW to authorize incidental take of the limestone salamander, a fully protected amphibian species, resulting from impacts attributable to a highway restoration project in Mariposa County known as the Ferguson Slide Permanent Restoration Project, provided specified conditions are met, including but not limited to, adoption of specific avoidance and mitigation measures, CESA requirements for minimization and mitigation, necessary measures to satisfy a conservation standard for recovery, and an adaptive management process.
   
   AB 2001 (Mathis) of this Session would authorize the take of a fully protected fish for scientific research or for efforts to recover the species. AB 2001 recently passed this committee on consent.
4. Support Arguments: Supporters emphasize the Foothill Feeder is one of the primary water conveyance pipelines for State Water Project deliveries to the 19 million people served by the MWD. They note that maintenance and repairs to the facility require that MWD shut down and periodically drain water into tributaries that may contain the unarmored threespine stickleback. To avoid impacts to the fish species, MWD extended the time for dewatering in order to lessen changes in stream flows, utilized federally permitted biologists to install nets and monitor dewatering around the clock, and proposed to relocate stranded fish back into the stream. However, since live relocation of a fully protected species has been interpreted by the courts to constitute "take" of the species, live relocation has not been permitted during routine maintenance of the Foothill Feeder facility. This bill will allow DFW to permit the carefully managed incidental take of the fish for periodic dewatering, contribute to the conservation of this sensitive species, and ensure reliability of the critical water supplies to Southern California.
5. Opposition Arguments: None received.
6. Suggested Committee Amendment: Similar bills recently enacted by the Legislature authorizing take of fully protected species have included requirements for an adaptive management plan that substantially contributes to the long term conservation of the species, and have required that the permit include measures that will fully meet the conservation standard included in an NCCP. The take permit authorized under this bill is for ongoing activities that will occur repeatedly at least every five years. For these reasons and for consistency with the standards incorporated into similar bills recently enacted by the Legislature, it is recommended that this bill be amended, on page 3, beginning with lines 4-5, to read as follows:

(2) The department ensures that all further measures necessary to contribute to conservation as defined in satisfy the conservation standard of subdivision (d) of Section 2805 are incorporated into the project.

(3) A biologist will be on duty whenever an activity is conducted that may affect the unarmored threespine stickleback.

REGISTERED SUPPORT / OPPOSITION:

Support

Calleguas Municipal Water District

Central City Association of Los Angeles

Cerritos Regional Chamber of Commerce

Chambers of Commerce Alliance, Ventura & Santa Barbara Counties

Coachella Valley Water District

Cucamonga Valley Water District

Desert Water Agency

Eastern Municipal Water District

El Monte/South El Monte Chambers of Commerce

Elsinore Valley Municipal Water District

Gateway Chamber Alliance

Inland Action

La Verne Chamber of Commerce

Las Virgenes Municipal Water District

Mesa Water District

Metropolitan Water District of Southern California

Municipal Water District of Orange County

Oxnard Chambers of Commerce

Southern California Contractors Association

Southern California Water Committee

Southwest California Legislative Council

Southwest Riverside County Association of Realtors

Three Valleys Municipal Water District

United Chambers of Commerce

Upper San Gabriel Valley Municipal Water District

Valley Industry and Commerce Association

Western Municipal Water District

Opposition

None on file.

Analysis Prepared by: Diane Colborn / W., P., & W. / (916) 319-2096