(1)Existing law, commonly known as the Lake and Streambed Alteration Program, prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing or disposing of certain material where it may pass into any river, stream, or lake, unless certain requirements are met. Existing law also prohibits the take or possession of certain species, including, among others, a fully protected fish, except as provided.

This bill, the Restoration Management Permit Act, would authorize the department to (1) issue a restoration management permit to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plants in association with a management or propagation project that, among other things, has the primary purpose of restoring native fish, wildlife, plants, or their habitat and (2) authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to the Lake and Streambed Alteration Program, as provided. The bill would exempt these management or propagation projects from various legal requirements, including, among others, the above-described prohibitions regarding the take or possession of fully protected fish, as specified. The bill would authorize the department to develop permit applications for restoration management permits and would require permit applications to contain specified information. The bill would prohibit the department from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.

This bill would establish the Restoration Management Permit Program Fund in the State Treasury. The bill would authorize the department to establish a schedule of fees to be charged for all or a portion of the departments costs relating to the administration of restoration management permits, as provided. The bill would require the department to post on its internet website a list and description of every qualifying restoration project permitted by the department and would require the department to, on or before January 1, 2034, submit a report to the Legislature that evaluates the impacts and outcomes of the act on the pace and scale of restoration projects. The bill would repeal the above-described provisions on January 1, 2035. The bill would also make related findings and declarations.

(2)The California State Safe Harbor Agreement Program Act establishes a program to encourage landowners to manage their lands voluntarily, by means of state safe harbor agreements approved by the Department of Fish and Wildlife, to benefit endangered, threatened, or candidate species, or declining or vulnerable species, without being subject to additional regulatory restrictions as a result of their conservation efforts. Existing law, for purposes of the California State Safe Harbor Agreement Program Act, defines landowner to mean any person or nonstate or federal entity or entities that lawfully hold any interest in land or water to which they are committing to implement the requirements of the act. The act provides that, if a federal safe harbor agreement or a federal candidate conservation agreement with assurances contains species that are endangered, threatened, candidate, or declining or vulnerable species pursuant to the California Endangered Species Act, no further authorization or approval is necessary to take the species in accordance with the federal agreement, as provided.

This bill would revise the definition of landowner for these purposes to additionally include state entities. The bill would additionally provide that, if a federal conservation benefit agreement with an enhancement of survival permit contains species that are endangered, threatened, candidate, or declining or vulnerable species pursuant to the California Endangered Species Act, no further authorization or approval is necessary to take the species identified in and in accordance with the federal agreement, as specified.

(3)Under existing law, any violation of the Fish and Game Code, or of any rule, regulation, or order made or adopted under that code, is a misdemeanor, unless otherwise specified. To the extent that this bills provisions create new crimes, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law, commonly known as the Lake and Streambed Alteration Program, prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing or disposing of certain material where it may pass into any river, stream, or lake, unless certain requirements are met. Existing law also prohibits the take or possession of certain species, including, among others, a fully protected fish, except as provided.

This bill, the Restoration Management Permit Act, would authorize the department to (1) issue a restoration management permit to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plants in association with a management or propagation project that, among other things, has the primary purpose of restoring native fish, wildlife, plants, or their habitat and (2) authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to the Lake and Streambed Alteration Program, as provided. The bill would exempt these management or propagation projects from various legal requirements, including, among others, the above-described prohibitions regarding the take or possession of fully protected fish, as specified. The bill would authorize the department to develop permit applications for restoration management permits and would require permit applications to contain specified information. The bill would prohibit the department from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.

This bill would establish the Restoration Management Permit Program Fund in the State Treasury. The bill would authorize the department to establish a schedule of fees to be charged for all or a portion of the departments costs relating to the administration of restoration management permits, as provided. The bill would require the department to post on its internet website a list and description of every qualifying restoration project permitted by the department and would require the department to, on or before January 1, 2034, submit a report to the Legislature that evaluates the impacts and outcomes of the act on the pace and scale of restoration projects. The bill would repeal the above-described provisions on January 1, 2035. The bill would also make related findings and declarations.

(2)The California State Safe Harbor Agreement Program Act establishes a program to encourage landowners to manage their lands voluntarily, by means of state safe harbor agreements approved by the Department of Fish and Wildlife, to benefit endangered, threatened, or candidate species, or declining or vulnerable species, without being subject to additional regulatory restrictions as a result of their conservation efforts. Existing law, for purposes of the California State Safe Harbor Agreement Program Act, defines landowner to mean any person or nonstate or federal entity or entities that lawfully hold any interest in land or water to which they are committing to implement the requirements of the act. The act provides that, if a federal safe harbor agreement or a federal candidate conservation agreement with assurances contains species that are endangered, threatened, candidate, or declining or vulnerable species pursuant to the California Endangered Species Act, no further authorization or approval is necessary to take the species in accordance with the federal agreement, as provided.

This bill would revise the definition of landowner for these purposes to additionally include state entities. The bill would additionally provide that, if a federal conservation benefit agreement with an enhancement of survival permit contains species that are endangered, threatened, candidate, or declining or vulnerable species pursuant to the California Endangered Species Act, no further authorization or approval is necessary to take the species identified in and in accordance with the federal agreement, as specified.

(3)Under existing law, any violation of the Fish and Game Code, or of any rule, regulation, or order made or adopted under that code, is a misdemeanor, unless otherwise specified. To the extent that this bills provisions create new crimes, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

(1)Existing law, commonly known as the Lake and Streambed Alteration Program, prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing certain material where it may pass into any river, stream, or lake, unless certain requirements are met, as provided. Existing law also prohibits the take or possession of certain species, including, among others, a fully protected fish, except as provided.

This bill, the Restoration Management Permit Act, would authorize the department to (1) issue a restoration management permit to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plants in association with a management or propagation project that, among other things, has the primary purpose of restoring native fish, wildlife, plants, or their habitat and (2) authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to the Lake and Streambed Alteration Program, as provided. The bill would exempt these management or restoration projects from various legal requirements, including, among others, the above-described prohibitions regarding the take or possession of fully protected fish, as specified. The bill would authorize the department to develop permit applications for restoration management permits and would require permit applications to contain specified information. The bill would prohibit the department from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.

This bill would establish the Restoration Management Permit Program Fund in the State Treasury. The bill would authorize the department to establish a schedule of fees to be charged for all or a portion of the departments costs relating to the administration of restoration management permits, as provided. The bill would require the department to post on its internet website a list and description of every qualifying restoration project permitted by the department and would require the department to, on or before January 1, 2034, submit a report to the Legislature that evaluates the impacts and outcomes of the act on the pace and scale of restoration projects. The bill would repeal its the above-described provisions on January 1, 2035. The bill would also make related findings and declarations.

(3)Under existing law, any violation of the Fish and Game Code, or of any rule, regulation, or order made or adopted under that code, is a misdemeanor, unless otherwise specified. To the extent that this bills provisions create new crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, commonly known as the Lake and Streambed Alteration Program, prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing certain material where it may pass into any river, stream, or lake, unless certain requirements are met, as provided. Existing law also prohibits the take or possession of certain species, including, among others, a fully protected fish. fish, except as provided.

This bill, the Restoration Management Permit Act, would authorize the department to (1) issue a restoration management permit to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plants in association with a management or propagation project that, among other things, has the primary purpose of restoring native fish, wildlife, plants, or their habitat and (2) authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to the Lake and Streambed Alteration Program, as provided. The bill would exempt these management or restoration projects from various legal requirements, including, among others, the above-described prohibitions regarding the take or possession of fully protected fish, as specified. The bill would authorize the department to develop permit applications for restoration management permits and would require permit applications to contain specified information. The bill would prohibit the department from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.

This bill would establish the Restoration Management Permit Program Fund in the State Treasury. The bill would authorize the department to establish a schedule of fees to be charged for all or a portion of the departments costs relating to the administration of restoration management permits, as provided. The bill would require the department to post on its internet website a list and description of every qualifying restoration project permitted by the department and would require the department to, on or before January 1, 2034, submit a report to the Legislature that evaluates the impacts and outcomes of the act on the pace and scale of restoration projects. The bill would repeal its provisions on January 1, 2035. The bill would also make related findings and declarations.

Under existing law, any violation of the Fish and Game Code, or of any rule, regulation, or order made or adopted under that code, is a misdemeanor, unless otherwise specified. To the extent that this bills provisions create new crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, commonly known as the Lake and Streambed Alteration Program, prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing certain material where it may pass into any river, stream, or lake, unless certain requirements are met, as provided. Existing law also prohibits the take or possession of certain species, including, among others, a fully protected fish.

This bill, the Restoration Management Permit Act, would authorize the department to (1) issue a restoration management permit to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plants in association with a management or propagation project that, among other things, has the primary purpose of restoring native fish, wildlife, plants, or their habitat and (2) authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to the Lake and Streambed Alteration Program, as provided. The bill would exempt these management or restoration projects from various legal requirements, including, among others, the above-described prohibitions regarding the take or possession of fully protected fish, as specified. The bill would authorize the department to develop permit applications for restoration management permits and would require permit applications to contain specified information.

This bill would establish the Restoration Management Permit Program Fund in the State Treasury. The bill would authorize the department to establish a schedule of fees to be charged for all or a portion of the departments costs relating to the administration of restoration management permits, as provided. The bill would authorize the department to adopt guidelines, criteria, and permit applications to aid in the implementation of the bill. The bill would require the department to post on its internet website a list and description of every qualifying restoration project permitted by the department and would require the department to, on or before January 1, 2034, submit a report to the Legislature that evaluates the impacts and outcomes of the act on the pace and scale of restoration projects. The bill would repeal its provisions on January 1, 2035. The bill would also make related findings and declarations.

Under existing law, any violation of the Fish and Game Code, or of any rule, regulation, or order made or adopted under that code, is a misdemeanor, unless otherwise specified. To the extent that this bills provisions create new crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or from depositing certain material where it may pass into any river, stream, or lake, unless the Department of Fish and Wildlife receives written notification regarding the activity, the department determines the notification is complete, the entity pays the applicable fees, and the department or a panel of arbitrators issues a lake or streambed alteration agreement or the department informs the entity that it may commence the activity without an agreement, except as provided. Under existing law, it is unlawful for any entity to violate the above-mentioned provision, and an entity that violates that provision is also subject to a civil penalty of not more than $25,000 for each violation.

This bill would exempt certain individuals, public agencies, universities, zoological gardens, and scientific or educational institutions authorized to import, export, take, or possess any endangered species, threatened species, or candidate species for scientific, educational, or management purposes from the requirement to obtain an agreement with the department, as specified. The bill would instead require these entities to submit to the department a written notification, fee, and, if applicable, a copy of proposed environmental protection measures authorized by other agencies programmatic habitat restoration permits and guidance, permits, as specified. The bill would require the department to notify the entity in writing whether the exemption applies within 60 days from the date that the notification is complete and the fee has been paid. Because a violation of this provision would be a crime, the bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Existing law, the Suisun Marsh Preservation Act of 1977, sets forth a comprehensive plan for the preservation and protection of the Suisun Marsh.

This bill would make nonsubstantive changes to the acts findings and declarations.

CONCURRENCE IN SENATE AMENDMENTS

CSA2 Bill Id:AB 1581

Author:(Kalra and Mathis)

As Amended Ver:August 23, 2024

Majority vote

SUMMARY

Original Committee of Reference: Assembly Water, Parks, and Wildlife Committee

Establishes the Restoration Management Permit (RMP) and revises the California Safe Harbor Agreement (SHA).

Senate Amendments

Current Committee Recommendation: Concur

1. Strike the content of the bill and replace it with 2)–18), below.
2. Authorize the Department of Fish and Wildlife (DFW) to issue an RMP, subject to terms and conditions, to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project and to authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to a Lake and Streambed Alteration Agreement (LSAA).
3. Authorize DFW to permit under an RMP for a qualifying restoration project, for management or propagation purposes, the take, possession, import, or export of any of species designated under the California Endangered Species Act (CESA); fully protected birds, mammals, reptiles, amphibians, or fish; plant species designated as rare pursuant to the Native Plant Protection Act (NPPA); and fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life.
4. Authorize DFW to permit through a RMP for a qualifying restoration project the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource. Requires DFW to include in the RMP reasonable measures necessary to protect the affected fish or wildlife resource.
5. Authorize DFW to develop a permit application for the RMP with specified components, including a detailed description of the project activities, baseline conditions, description of species, and California Endangered Quality Act (CEQA) documentation.
6. Enable an applicant for an RMP to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant's project or related documents to assist DFW with developing an RMP that maximizes consistency with other agency authorizations to the extent practicable.
7. Authorize DFW to establish a schedule of fees to cover all or a portion of DFW's costs to administer RMPs, not to exceed DFW's reasonable costs. Requires those fees to be deposited into the Restoration Management Permit Program Fund established by this bill.
8. Exempt the development, adoption, or amendments of permit application forms or guidance materials for RMPs from the Administrative Procedure Act. Requires DFW to post the guidelines, criteria, and permit applications on DFW's internet website.
9. Require DFW to require appropriate species protection, management, monitoring, and reporting measures for each RMP issued.
10. Require DFW to post on its internet website a description of permitted RMPs.
11. Require DFW to submit a report to the Legislature on or before January 1, 2034 that evaluates the impacts and outcomes of the RMP program.
12. Prohibit the issuance of an RMP for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.
13. Define the terms "baseline conditions," "management," "propagation," "qualifying restoration project," and "substantial net benefit" for purposes of this bill.
14. Repeal the RMP Act (#2–#13, above) on January 1, 2035.
15. Revise the definition of "landowner" under the SHA Program Act to include state entities.
16. Allow DFW to make consistency determinations regarding a federal Conservation Benefit Agreement (CBA) with an enhancement of survival permit in compliance with federal regulation.
17. Make findings and declarations, including to express the intent of the Legislature to create a unified, efficient department permitting mechanism for restoration, enhancement, and species recovery projects that simplifies the permitting process for these projects while maintaining existing species and habitat protection requirements.
18. Provide that no reimbursement is required for this bill.

COMMENTS

DFW administers multiple environmental laws to protect the state's plant and animal resources. Generally, these laws and/or their implementing regulations require a permit or other form of approval from DFW if a proposed project or activity will have a substantial negative impact on the resource, as defined in the law. These laws include:

Lake and Streambed Alteration Program. This program requires any person, state or local governmental agency, or public utility to notify DFW prior to beginning any activity that may do one or more of the following:

1. Divert or obstruct the natural flow of any river, stream, or lake;
2. Change the bed, channel, or bank of any river, stream, or lake;
3. Use material from any river, stream, or lake; or
4. Deposit or dispose of material into any river, stream, or lake.

DFW requires an LSAA if the activity may substantially adversely affect fish and wildlife resources with certain limited exceptions.

CESA. CESA was enacted to prevent the extinction of fish, wildlife, plant, and invertebrate species. Species that have been designated as "threatened" or "endangered" are referred to as "listed." The Fish and Game Commission (Commission) is responsible for designating species by relying on scientific analysis. CESA prohibit "take" of a listed species. "Take" is defined as to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. DFW uses the CEQA analysis to determine whether a project will have a significant impact on a listed species. Approximately 250 species are currently listed under CESA.

NPPA. This law authorizes the Commission to designate plants as rare or endangered. The NPPA prohibits take of endangered or rare native plants, but includes some exceptions for agricultural and nursery operations; emergencies; and after properly notifying DFW for vegetation removal from canals, roads, and other sites, changes in land use, and in certain other situations. According to DFW, there are 64 species, subspecies, and varieties of plants that are protected as rare under NPPA. In total, 220 plant species are protected under both CESA and NPPA. The killing or possession of California's rare, threatened, or endangered plant species is prohibited by California law, however DFW may issue permits authorizing the killing or possession of these species under certain circumstances, and generally requires some form of mitigation.

Fully Protected Species. The Legislature designates a species as fully protected. "Fully protected" is considered a more restrictive protection standard than provided for threatened or endangered species under CESA. Fully protected species may not be taken or possessed except with DFW's authorization and only under specific circumstances such as under a natural community conservation plan. State law designates 34 species of birds, reptiles or amphibians, fish, and mammals as fully protected.

Under existing authority, DFW has consolidated the take authorizations required under CESA and for fully protected species for restorations projects under the current RMP, which is not codified. This bill codifies the RMP and expands DFW's authority to offer additional permit streamlining through the RMP. DFW has approved 25 RMPs since 2019.

Streamlining for restoration. Delays in permitting raise the costs of developing and implementing projects. In recent years, the Legislature has taken action to streamline the environmental review and permit process. Two examples relevant to this bill include Habitat Restoration and Enhancement Act (HREA) and the Statutory Exemption for Restoration Projects (SERP). HREA established by AB 2193 (Gordon), Chapter 604, Statutes of 2014, created a process by which DFW permits small-scale, voluntary habitat restoration projects and no additional permits are needed. DFW has permitted 188 projects under HREA since 2015. The Statutory Exemption for Restoration Projects (SERP) is a CEQA exemption for certain fish and wildlife restoration projects and was established by SB 155 (Committee on Budget and Fiscal Review), Chapter 258, Statutes of 2021. SERP has been used 56 times since 2021.

California SHA Program Act. Collaboration with private landowners is critical to species recovery, as many declining species occur primarily or exclusively on private property. The California SHA Program Act is a voluntary program that encourages private landowners to manage for the net conservation benefit of threatened, endangered, candidate, declining, or vulnerable species. In return for this collaborative stewardship approach, the landowner receives authorization for acts that are or may become prohibited, such as incidental take of a threatened, endangered, candidate, declining, or vulnerable species. These agreements are analogous to the federal SHA program and DFW has the authority to issue a consistency determination based on a federal SHA. This bill expands the list of federal agreements for which DFW may issue a consistency determination to include a federal conservation agreement with an enhancement of survival permit.

According to the Author

According to the author, "Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California's various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must "cut the green tape" and streamline its habitat restoration permitting processes. [This bill] accomplishes this by combining existing duplicative permits into a codified "Restoration Management Permit". This will prevent the administrative delays and increased agency workload that currently undermine the state's environmental goals. Thus, [This bill] will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight."

Arguments in Support

Several organizations write in support this bill as it is a part of efforts to "reduce barriers to restoration projects (whether they are funded with private, public or mitigation funds)." Further, "Facilitating restoration would further many important state policies, including, but not limited to, the effort to protect and restore 30 percent of our lands and waters by 2030, recover endangered and threatened species, and use nature-based climate solutions."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Senate Appropriations Committee, this bill has the following fiscal impact:

1. DFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the [RMP] program.
2. To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
3. Unknown revenue impact from any fees collected pursuant to provisions authorizing DFW to establish a fee schedule that would cover its reasonable costs related to the administration of RMPs under this bill.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 14-0-1

YES: Bauer-Kahan, Mathis, Alanis, Bennett, Megan Dahle, Davies, Friedman, Hart, Kalra, Pellerin, Blanca Rubio, Schiavo, Villapudua, Weber

ABS, ABST OR NV: Ward

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

ASSEMBLY FLOOR: 80-0-0

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Alvarado-Gil

ASM WATER, PARKS, AND WILDLIFE: 12-0-3

YES: Papan, Mathis, Addis, Alanis, Bennett, Bonta, Gallagher, Davies, Hart, Luz Rivas, Villapudua, Weber

ABS, ABST OR NV: Alvarez, Garcia, Schiavo

UPDATED

VERSION: August 23, 2024

CONSULTANT: Stephanie Mitchell / W., P., & W. / (916) 319-2096 FN: 0004989

Date of Hearing: August 29, 2024

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Diane Papan, Chair

ABPCA Bill Id:AB 1581 (

Author:Kalra) – As Amended Ver:August 23, 2024

SUBJECT: Conservation: Restoration Management Permit Act and California State Safe Harbor Agreement Program Act

SUMMARY: Establishes the Restoration Management Permit (RMP) and revises the California Safe Harbor Agreement (SHA). Specifically, this bill:

1. Authorizes the Department of Fish and Wildlife (DFW) to issue an RMP, subject to terms and conditions, to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project and to authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to a Lake and Streambed Alteration Agreement (LSAA).
2. Authorizes DFW to permit under an RMP for a qualifying restoration project, for management or propagation purposes, the take, possession, import, or export of any of species designated under the California Endangered Species Act (CESA); fully protected birds, mammals, reptiles, amphibians, or fish; plant species designated as rare pursuant to the Native Plant Protection Act (NPPA); and fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life.
3. Authorizes DFW to permit through a RMP for a qualifying restoration project the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource. Requires DFW to include in the RMP reasonable measures necessary to protect the affected fish or wildlife resource.
4. Authorizes DFW to develop a permit application for the RMP with specified components, including a detailed description of the project activities, baseline conditions, description of species, and California Endangered Quality Act (CEQA) documentation.
5. Enables an applicant for an RMP to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant’s project or related documents to assist DFW with developing an RMP that maximizes consistency with other agency authorizations to the extent practicable.
6. Authorizes DFW to establish a schedule of fees to cover all or a portion of DFW’s costs to administer RMPs, not to exceed DFW’s reasonable costs. Requires those fees to be deposited into the Restoration Management Permit Program Fund established by this bill.
7. Exempts the development, adoption, or amendments of permit application forms or guidance materials for RMPs from the Administrative Procedure Act. Requires DFW to post the guidelines, criteria, and permit applications on DFW’s internet website.
8. Requires DFW to require appropriate species protection, management, monitoring, and reporting measures for each RMP issued.
9. Requires DFW to post on its internet website a description of permitted RMPs.
10. Requires DFW to submit a report to the Legislature on or before January 1, 2034 that evaluates the impacts and outcomes of the RMP program.
11. Prohibits the issuance of an RMP for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.
12. Defines the terms “baseline conditions,” “management,” “propagation,” “qualifying restoration project,” and “substantial net benefit” for purposes of this bill.
13. Repeals the RMP Act (#1–#12, above) on January 1, 2035.
14. Revises the definition of “landowner” under the SHA Program Act to include state entities.
15. Allows DFW to make consistency determinations regarding a federal Conservation Benefit Agreement (CBA) with an enhancement of survival permit in compliance with federal regulation.
16. Makes findings and declarations, including to express the intent of the Legislature to create a unified, efficient department permitting mechanism for restoration, enhancement, and species recovery projects that simplifies the permitting process for these projects while maintaining existing species and habitat protection requirements.
17. Provides that no reimbursement is required for this bill.

EXISTING LAW:

1. Establishes that DFW has jurisdiction over the conservation, protection, and management of fish, wildlife, native plants, and habitat necessary for biologically sustainable populations of those species (FGC § 1802).
2. Establishes the Lake and Streambed Alteration Program, which generally prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, and other similar activities, as specified, unless certain conditions are met, including that the entity has paid applicable fees and DFW has issued an LSAA that includes reasonable measures necessary to protect the resource (FGC § 1600 et seq.).
3. Establishes CESA, which generally prohibits a person or public agency from importing into this state, exporting out of this state, or taking, possessing, purchasing, or selling within this state, any species, or any part or product thereof, that the Fish and Game Commission (Commission) determines to be an endangered species or a threatened species, or attempting any of those acts, unless DFW has authorized those activities by permit (FGC § 2080 et seq.).
4. Designates certain species as fully protected, and prohibits the take of these species, with exceptions for necessary scientific research and, for fully protected bird species, the protection of livestock (FGC §§ 3511, 4700, 5050, 5515).
5. Establishes NPPA, which generally prohibits a person from importing into this state, or taking, possessing, or selling within this state, any native plant, or any part or product thereof, that the Commission determines to be an endangered native plant or rare native plant, unless DFW has issued a permit, agreement, plan, or program that authorizes this activity (FGC § 1900 et seq.).
6. Establishes the Habitat Restoration and Enhancement Act (HREA), which authorizes a project proponent to submit a habitat restoration or enhancement project, with the primary purpose of improving fish and wildlife habitat, to the DFW director for approval. Provides that the director’s approval of a HREA project is in lieu of any other permit, agreement, license, or other approval issued by DFW (FGC § 1650 et seq.).
7. Until January 1, 2030, exempts from CEQA, if certain requirements are met, a project to (1) conserve, restore, protect, or enhance, and assist in the recovery of California native fish and wildlife, and habitat upon which they depend; or (2) restore or provide habitat for California native fish and wildlife [Public Resources Code (PRC) § 21080.56].
8. Establishes the SHA Program Act, which encourages landowners to voluntarily manage their lands to benefit endangered, threatened, or candidate species, or declining or vulnerable species, and not be subject to additional regulatory restrictions as a result of their conservation efforts. Authorizes DFW to determine consistency of a federal SHA with the state’s SHA (FGC § 2089.2 et seq.).

FISCAL EFFECT: According to the Senate Appropriations Committee, this bill has the following fiscal impact:

• DFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the [RMP] program.
• To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
• Unknown revenue impact from any fees collected pursuant to provisions authorizing DFW to establish a fee schedule that would cover its reasonable costs related to the administration of RMPs under this bill.

COMMENTS:

1. Purpose of this bill. This bill consolidates several DFW permits under the RMP for qualified restoration projects and extends DFW authority to determine consistency with the federal CBA. According to the author, “Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California’s various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must “cut the green tape” and streamline its habitat restoration permitting processes. [This bill] accomplishes this by combining existing duplicative permits into a codified “Restoration Management Permit”. This will prevent the administrative delays and increased agency workload that currently undermine the state’s environmental goals. Thus, [This bill] will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight.”
2. Background. DFW administers multiple environmental laws to protect the state’s plant and animal resources. Generally, these laws and/or their implementing regulations require a permit or other form of approval from DFW if a proposed project or activity will have a substantial negative impact on the resource, as defined in the law. These laws include:

LSAA Program. This program requires any person, state or local governmental agency, or public utility to notify DFW prior to beginning any activity that may do one or more of the following:

• Divert or obstruct the natural flow of any river, stream, or lake;

• Change the bed, channel, or bank of any river, stream, or lake;

• Use material from any river, stream, or lake; or

• Deposit or dispose of material into any river, stream, or lake.

DFW requires an LSAA if the activity may substantially adversely affect fish and wildlife resources with certain limited exceptions.

CESA. CESA was enacted to prevent the extinction of fish, wildlife, plant, and invertebrate species. Species that have been designated as “threatened” or “endangered” are referred to as “listed.” The Fish and Game Commission (Commission) is responsible for designating species by relying on scientific analysis. CESA prohibit “take” of a listed species. “Take” is defined as to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. DFW uses the CEQA analysis to determine whether a project will have a significant impact on a listed species. Approximately 250 species are currently listed under CESA.

NPPA. This law authorizes the Commission to designate plants as rare or endangered. The NPPA prohibits take of endangered or rare native plants, but includes some exceptions for agricultural and nursery operations; emergencies; and after properly notifying DFW for vegetation removal from canals, roads, and other sites, changes in land use, and in certain other situations. According to DFW, there are 64 species, subspecies, and varieties of plants that are protected as rare under NPPA. In total, 220 plant species are protected under both CESA and NPPA. The killing or possession of California’s rare, threatened, or endangered plant species is prohibited by California law, however DFW may issue permits authorizing the killing or possession of these species under certain circumstances, and generally requires some form of mitigation.

Fully Protected Species. The Legislature designates a species as fully protected. “Fully protected” is considered a more restrictive protection standard than provided for threatened or endangered species under CESA. Fully protected species may not be taken or possessed except with DFW’s authorization and only under specific circumstances such as under a natural community conservation plan. State law designates 34 species of birds, reptiles or amphibians, fish, and mammals as fully protected.

Under existing authority, DFW has consolidated the take authorizations required under CESA and for fully protected species for restorations projects under the current RMP, which is not codified. This bill codifies the RMP and expands DFW’s authority to offer additional permit streamlining through the RMP. DFW has approved 25 RMPs since 2019.

Streamlining for restoration. Delays in permitting raise the costs of developing and implementing projects. In recent years, the Legislature has taken action to streamline the environmental review and permit process. Two examples relevant to this bill include Habitat Restoration and Enhancement Act (HREA) and the Statutory Exemption for Restoration Projects (SERP). HREA established by AB 2193 (Gordon), Chapter 604, Statutes of 2014, created a process by which DFW permits small-scale, voluntary habitat restoration projects and no additional permits are needed. DFW has permitted 188 projects under HREA since 2015. The Statutory Exemption for Restoration Projects (SERP) is a CEQA exemption for certain fish and wildlife restoration projects and was established by SB 155 (Committee on Budget and Fiscal Review), Chapter 258, Statutes of 2021. SERP has been used 56 times since 2021.

California SHA Program Act. Collaboration with private landowners is critical to species recovery, as many declining species occur primarily or exclusively on private property. The California SHA Program Act is a voluntary program that encourages private landowners to manage for the net conservation benefit of threatened, endangered, candidate, declining, or vulnerable species. In return for this collaborative stewardship approach, the landowner receives authorization for acts that are or may become prohibited, such as incidental take of a threatened, endangered, candidate, declining, or vulnerable species. These agreements are analogous to the federal SHA program and DFW has the authority to issue a consistency determination based on a federal SHA.

On May 13, 2024, new Endangered Species Act regulations went into effect. These changes consolidate the federal SHAs and Candidate Conservation Agreements with Assurances into a single, new agreement—the CBA. This bill expands the list of federal agreements for which DFW may issue a consistency determination to include the federal CBA with an enhancement of survival permit.

1. Arguments in support. Several organizations write in support this bill as it is a part of efforts to “reduce barriers to restoration projects (whether they are funded with private, public or mitigation funds).” Further, “Facilitating restoration would further many important state policies, including, but not limited to, the effort to protect and restore 30 percent of our lands and waters by 2030, recover endangered and threatened species, and use nature-based climate solutions.”
2. Related legislation. AB 830 (Soria) of the current legislative session would have exempted the temporary operation of existing infrastructure or temporary pumps being used to divert flood stage or near-flood stage flows to beneficial groundwater recharge necessary to protect downstream life and property from the requirements of the LSAA process. AB 830 was held in the Senate Appropriations Committee.

AB 2610 (Garcia) of the current legislative session would have authorized DFW to authorize the take of fully protected species resulting from impacts attributable to the implementation of any System Conservation Implementation Agreement between the United States Bureau of Reclamation and the Imperial Irrigation District to implement the Lower Colorado River Basin System Conservation and Efficiency Program. AB 2610 was held in the Senate Appropriations Committee.

AB 2193 (Gordon), Chapter 604, Statutes of 2014, establishes HREA, which provides a process to permit small-scale, voluntary habitat restoration projects.

SB 716 (McGuire), Chapter 735, Statutes of 2021, extends the HREA sunset date until January 1, 2027, among other provisions.

AB 72 (Petrie-Norris), Chapter 369, Statutes of 2021, requires the California Natural Resources Agency to explore and implement more coordinated and efficient permitting processes for coastal adaptation projects that use natural infrastructure.

SB 147 (Ashby), Chapter 59, Statutes of 2023, authorizes, until December 31, 2033, the take of fully protected species for certain infrastructure projects.

SB 155 (Committee on Budget and Fiscal Review), Chapter 258, Statutes of 2021, creates SERP.

AB 2362 (Mullin) of 2022 would have created an Interagency Working Group to coordinate regulatory review and permitting mechanisms and undertake certain tasks to expedite permitting of environmentally beneficial projects. This content was struck from AB 2362, which died on the Senate inactive file.

REGISTERED SUPPORT / OPPOSITION:

Support

Association of California Water Agencies
East Bay Regional Park District
Environmental Defense Fund
Midpeninsula Regional Open Space District
Ojai Valley Land Conservancy
Sonoma Land Trust
Trout Unlimited
WRA, Inc.

Opposition

None on file

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

CONCURRENCE IN SENATE AMENDMENTS

CSA2 Bill Id:AB 1581

Author:(Kalra and Mathis)

As Amended Ver:August 23, 2024

Majority vote

SUMMARY

Original Committee of Reference: Assembly Water, Parks, and Wildlife Committee

Establishes the Restoration Management Permit (RMP) and revises the California Safe Harbor Agreement (SHA).

Senate Amendments

Current Committee Recommendation: Concur

1. Strike the content of the bill and replace it with 2)–18), below.
2. Authorize the Department of Fish and Wildlife (DFW) to issue an RMP, subject to terms and conditions, to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project and to authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to a Lake and Streambed Alteration Agreement (LSAA).
3. Authorize DFW to permit under an RMP for a qualifying restoration project, for management or propagation purposes, the take, possession, import, or export of any of species designated under the California Endangered Species Act (CESA); fully protected birds, mammals, reptiles, amphibians, or fish; plant species designated as rare pursuant to the Native Plant Protection Act (NPPA); and fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life.
4. Authorize DFW to permit through a RMP for a qualifying restoration project the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource. Requires DFW to include in the RMP reasonable measures necessary to protect the affected fish or wildlife resource.
5. Authorize DFW to develop a permit application for the RMP with specified components, including a detailed description of the project activities, baseline conditions, description of species, and California Endangered Quality Act (CEQA) documentation.
6. Enable an applicant for an RMP to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant's project or related documents to assist DFW with developing an RMP that maximizes consistency with other agency authorizations to the extent practicable.
7. Authorize DFW to establish a schedule of fees to cover all or a portion of DFW's costs to administer RMPs, not to exceed DFW's reasonable costs. Requires those fees to be deposited into the Restoration Management Permit Program Fund established by this bill.
8. Exempt the development, adoption, or amendments of permit application forms or guidance materials for RMPs from the Administrative Procedure Act. Requires DFW to post the guidelines, criteria, and permit applications on DFW's internet website.
9. Require DFW to require appropriate species protection, management, monitoring, and reporting measures for each RMP issued.
10. Require DFW to post on its internet website a description of permitted RMPs.
11. Require DFW to submit a report to the Legislature on or before January 1, 2034 that evaluates the impacts and outcomes of the RMP program.
12. Prohibit the issuance of an RMP for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.
13. Define the terms "baseline conditions," "management," "propagation," "qualifying restoration project," and "substantial net benefit" for purposes of this bill.
14. Repeal the RMP Act (#2–#13, above) on January 1, 2035.
15. Revise the definition of "landowner" under the SHA Program Act to include state entities.
16. Allow DFW to make consistency determinations regarding a federal Conservation Benefit Agreement (CBA) with an enhancement of survival permit in compliance with federal regulation.
17. Make findings and declarations, including to express the intent of the Legislature to create a unified, efficient department permitting mechanism for restoration, enhancement, and species recovery projects that simplifies the permitting process for these projects while maintaining existing species and habitat protection requirements.
18. Provide that no reimbursement is required for this bill.

COMMENTS

DFW administers multiple environmental laws to protect the state's plant and animal resources. Generally, these laws and/or their implementing regulations require a permit or other form of approval from DFW if a proposed project or activity will have a substantial negative impact on the resource, as defined in the law. These laws include:

Lake and Streambed Alteration Program. This program requires any person, state or local governmental agency, or public utility to notify DFW prior to beginning any activity that may do one or more of the following:

1. Divert or obstruct the natural flow of any river, stream, or lake;
2. Change the bed, channel, or bank of any river, stream, or lake;
3. Use material from any river, stream, or lake; or
4. Deposit or dispose of material into any river, stream, or lake.

DFW requires an LSAA if the activity may substantially adversely affect fish and wildlife resources with certain limited exceptions.

CESA. CESA was enacted to prevent the extinction of fish, wildlife, plant, and invertebrate species. Species that have been designated as "threatened" or "endangered" are referred to as "listed." The Fish and Game Commission (Commission) is responsible for designating species by relying on scientific analysis. CESA prohibit "take" of a listed species. "Take" is defined as to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. DFW uses the CEQA analysis to determine whether a project will have a significant impact on a listed species. Approximately 250 species are currently listed under CESA.

NPPA. This law authorizes the Commission to designate plants as rare or endangered. The NPPA prohibits take of endangered or rare native plants, but includes some exceptions for agricultural and nursery operations; emergencies; and after properly notifying DFW for vegetation removal from canals, roads, and other sites, changes in land use, and in certain other situations. According to DFW, there are 64 species, subspecies, and varieties of plants that are protected as rare under NPPA. In total, 220 plant species are protected under both CESA and NPPA. The killing or possession of California's rare, threatened, or endangered plant species is prohibited by California law, however DFW may issue permits authorizing the killing or possession of these species under certain circumstances, and generally requires some form of mitigation.

Fully Protected Species. The Legislature designates a species as fully protected. "Fully protected" is considered a more restrictive protection standard than provided for threatened or endangered species under CESA. Fully protected species may not be taken or possessed except with DFW's authorization and only under specific circumstances such as under a natural community conservation plan. State law designates 34 species of birds, reptiles or amphibians, fish, and mammals as fully protected.

Under existing authority, DFW has consolidated the take authorizations required under CESA and for fully protected species for restorations projects under the current RMP, which is not codified. This bill codifies the RMP and expands DFW's authority to offer additional permit streamlining through the RMP. DFW has approved 25 RMPs since 2019.

Streamlining for restoration. Delays in permitting raise the costs of developing and implementing projects. In recent years, the Legislature has taken action to streamline the environmental review and permit process. Two examples relevant to this bill include Habitat Restoration and Enhancement Act (HREA) and the Statutory Exemption for Restoration Projects (SERP). HREA established by AB 2193 (Gordon), Chapter 604, Statutes of 2014, created a process by which DFW permits small-scale, voluntary habitat restoration projects and no additional permits are needed. DFW has permitted 188 projects under HREA since 2015. The Statutory Exemption for Restoration Projects (SERP) is a CEQA exemption for certain fish and wildlife restoration projects and was established by SB 155 (Committee on Budget and Fiscal Review), Chapter 258, Statutes of 2021. SERP has been used 56 times since 2021.

California SHA Program Act. Collaboration with private landowners is critical to species recovery, as many declining species occur primarily or exclusively on private property. The California SHA Program Act is a voluntary program that encourages private landowners to manage for the net conservation benefit of threatened, endangered, candidate, declining, or vulnerable species. In return for this collaborative stewardship approach, the landowner receives authorization for acts that are or may become prohibited, such as incidental take of a threatened, endangered, candidate, declining, or vulnerable species. These agreements are analogous to the federal SHA program and DFW has the authority to issue a consistency determination based on a federal SHA. This bill expands the list of federal agreements for which DFW may issue a consistency determination to include a federal conservation agreement with an enhancement of survival permit.

According to the Author

According to the author, "Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California's various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must "cut the green tape" and streamline its habitat restoration permitting processes. [This bill] accomplishes this by combining existing duplicative permits into a codified "Restoration Management Permit". This will prevent the administrative delays and increased agency workload that currently undermine the state's environmental goals. Thus, [This bill] will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight."

Arguments in Support

Several organizations write in support this bill as it is a part of efforts to "reduce barriers to restoration projects (whether they are funded with private, public or mitigation funds)." Further, "Facilitating restoration would further many important state policies, including, but not limited to, the effort to protect and restore 30 percent of our lands and waters by 2030, recover endangered and threatened species, and use nature-based climate solutions."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Senate Appropriations Committee, this bill has the following fiscal impact:

1. DFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the [RMP] program.
2. To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
3. Unknown revenue impact from any fees collected pursuant to provisions authorizing DFW to establish a fee schedule that would cover its reasonable costs related to the administration of RMPs under this bill.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 14-0-1

YES: Bauer-Kahan, Mathis, Alanis, Bennett, Megan Dahle, Davies, Friedman, Hart, Kalra, Pellerin, Blanca Rubio, Schiavo, Villapudua, Weber

ABS, ABST OR NV: Ward

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

ASSEMBLY FLOOR: 80-0-0

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Alvarado-Gil

ASM WATER, PARKS, AND WILDLIFE: 12-0-3

YES: Papan, Mathis, Addis, Alanis, Bennett, Bonta, Gallagher, Davies, Hart, Luz Rivas, Villapudua, Weber

ABS, ABST OR NV: Alvarez, Garcia, Schiavo

UPDATED

VERSION: August 23, 2024

CONSULTANT: Stephanie Mitchell / W., P., & W. / (916) 319-2096 FN: 0004989

 THIRD READING  

Bill No: AB 1581

Author: Kalra (D) and Mathis (R)

Amended: 8/23/24 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 10-0, 6/25/24

AYES: Min, Seyarto, Allen, Dahle, Grove, Hurtado, Laird, Limón, Padilla, Stern

NO VOTE RECORDED: Eggman

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/15/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

ASSEMBLY FLOOR: 80-0, 5/31/23 - See last page for vote

SUBJECT: Conservation: Restoration Management Permit Act and California State Safe Harbor Agreement Program Act

SOURCE: Author

DIGEST:

This bill establishes the Restoration Management Permit Act through January 1, 2035, and incorporates federal conservation benefit agreements into the California State Safe Harbor Agreement Program Act.

Senate Floor Amendments of 8/23/24 define terms, expand and clarify permit application requirements, and clarify requirements CDFW must meet in implementing the program. The amendments also expand the bill to amend the California State Safe Harbor Agreement Program Act.

ANALYSIS:

Existing law:

1. Establishes the Fish and Game Commission (FGC), consisting of five members appointed by the Governor and approved by the Senate. Section 20 of Article IV of the California Constitution and Fish and Game Code (FGC) §101.
   1. Vests FGC with the power to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles. (FGC §200.)
2. Establishes CDFW in the California Natural Resources Agency (CNRA) under the control of the CDFW director. (FGC §700.)
   1. Specifies CDFW’s mission is to manage California’s diverse fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment of the public. (FGC §712.1.)
3. Establishes the Lake and Streambed Alteration Program, which generally prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, and other similar activities, as specified, unless certain conditions are met, including that the entity has paid applicable fees and CDFW has issued a lake and streambed alteration agreement (LSAA) that includes reasonable measures necessary to protect the resource, as specified. (FGC §1602).
4. Establishes the California Native Plant Protection Act (NPPA), which generally prohibits a person from importing into this state, or taking, possessing, or selling within this state, any native plant, or any part or product thereof, that the FGC determines to be an endangered native plant or rare native plant, unless CDFW has issued a permit, agreement, plan, or program that authorizes this activity, as specified. (FGC §§1900 et seq.; Title 14, California Code of Regulations, §786.9 (14 CCR §786.9)).
5. Establishes the California Endangered Species Act (CESA), which generally prohibits a person or public agency from importing into this state, exporting out of this state, or taking, possessing, purchasing, or selling within this state, any species, or any part or product thereof, that the FGC determines to be an endangered species or a threatened species, or attempting any of those acts, unless CDFW has authorized those activities by permit. (FGC §§2080 et seq)..
6. Generally prohibits the take or possession of a fully protected bird, mammal, amphibian or reptile, or fish, unless CDFW has authorized the take of the fully protected animal for necessary scientific research, as specified. (FGC §3511, §4700, §5050, and §5515, respectively).
7. Establishes the California State Safe Harbor Agreement Program Act, which establishes a program to encourage landowners to manage their lands voluntarily, by means of state safe harbor agreements approved by CDFW, to benefit endangered, threatened, or candidate species without being subject to additional regulatory restrictions as a result of their conservation efforts. (FGC §§2089.2 et seq.)

This bill establishes the Restoration Management Permit Act through January 1, 2035, and revises the California State Safe Harbor Agreement Program Act. Specifically, this bill:

1. Establishes the Restoration Management Permit Act through January 1, 2035.
2. Authorizes CDFW to issue a restoration management permit, subject to terms and conditions determined by the department, to authorize:
   1. Take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project; and
   2. Any impacts to fish and wildlife resources as a result of activities otherwise subject to an LSAA.
3. Authorizes CDFW to authorize, through a restoration management permit for a qualifying restoration project, for management or propagation purposes, including scientific or educational purposes related to management or propagation, the take, possession, import, or export of any of the following:
   1. Endangered, threatened, or candidate species designated under CESA.
   2. Fully protected birds, mammals, reptiles, amphibians, or fish.
   3. Plant species designated as rare pursuant to NPPA.
   4. Fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life not subject to (a) through (c), above.
4. Authorizes CDFW to authorize, through a restoration management permit for a qualifying restoration project, the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource.
5. Requires CDFW to include in the restoration management permit reasonable measures necessary to protect the affected fish or wildlife resource.
6. Prohibits CDFW from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.
7. Authorizes CDFW to develop a permit application for restoration management permits, which must include certain components, as specified, including, among others, a detailed description of the project activities.
8. Authorizes an applicant, when applying for a restoration management permit, to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant’s project or related documents to assist CDFW with developing restoration management permits that maximize consistency with other agency authorizations to the extent practicable.
9. Requires CDFW to require appropriate species protection, management, monitoring, and reporting measures in each restoration management permit issued by the department.
10. Authorizes CDFW to establish a schedule of fees to cover all or a portion of CDFW’s costs to administer restoration management permits, not to exceed CDFW’s reasonable costs. Requires the deposit of fees into the Restoration Management Permit Program Fund, established by this bill in the State Treasury.
11. Requires CDFW to post on its internet website a list and description of every qualifying restoration project permitted by the department, as specified.
12. Requires, by January 1, 2034, CDFW to submit a report to the Legislature that evaluates the impacts and outcomes of this chapter on the pace and scale of restoration projects, as specified.
13. Provides that the Administrative Procedure Act (APA) applies to the development, adoption, or amendment of any rules, instructions, or criteria, as specified, but not to the development, adoption, or amendment of permit applications or guidance materials. Requires CDFW to all rules, instructions, criteria, permit applications, and guidance materials on the department’s internet website.
14. Defines terms, including “baseline conditions,” “management,” “propagation,” “qualifying restoration project,” and “substantial net benefit.”
15. Makes findings and declarations.
16. Under the California Safe Harbor Agreement Program Act:
    1. Provides that, if a federal conservation benefit agreement with an enhancement of survival permit includes listed species under CESA, as specified, that no further authorization or approval is necessary from CDFW to take the identified species in accordance with the agreement.
    2. Revises the definition of “landowner” to include state entities.
    3. Corrects a reference and makes other non-substantive changes.
17. Provides that no reimbursement is required for this bill for a specified reason.

Background

Habitat restoration and enhancement projects and infrastructure projects can require multiple layers of environmental review and multiple permits from various agencies. Sometimes, this can delay these projects and raise the costs of developing and implementing projects.

In recent years, the Legislature and Administration have taken action to streamline the environmental review and permit process. For example, AB 2193 (Gordon, Chapter 604, Statutes of 2014) established the Habitat Restoration and Enhancement Act (HREA), which created a process for CDFW to permit small-scale, voluntary habitat restoration projects. Additionally, SB 155 (Committee on Budget and Fiscal Review, Chapter 258, Statutes of 2021) established and SB 174 (Committee on Budget and Fiscal Review, Chapter 74, Statutes of 2024) extended a CEQA exemption for certain fish and wildlife restoration projects that meet specified requirements until January 1, 2030.

The Newsom Administration has sponsored the Cutting the Green Tape initiative to allow ecological restoration and stewardship to occur more quickly, simply, and cost-effectively. The Legislature granted CDFW funding and authority to redirect staff to support this initiative, and required CDFW to annually report on progress. (CDFW’s reports can be found here: https://wildlife.ca.gov/Conservation/Cutting-Green-Tape).

CDFW developed a new Restoration Management Permit (RMP) to help consolidate multiple environmental authorizations into fewer permits, with the goal of developing a single master permitting procedure for voluntary restoration projects. The RMP can authorize take of (1) endangered, threatened, and candidate species pursuant to CESA and (2) fully protected species. Depending on the types of take authorizations needed for a restoration project, the RMP is also designed to work in conjunction with LSAAs.

Comments

Restoration Management Permit Act. According to CDFW, this bill is generally consistent with its RMP program. This bill consolidates more CDFW permits under one permit than currently provided by the RMP program. Additionally, this bill is very similar to HREA – both streamline CDFW’s permitting process for habitat restoration projects. However, HREA specifically targets small-scale projects. Further, this bill’s definition of a qualifying project differs from that for the CEQA exemption for restoration projects. It is not the author’s intent that this bill provide streamlining for the exact same types of projects as that provided by the CEQA exemption. However, much of the time there will be overlap, just not necessarily always.

The August 23, 2024, amendments seek to address outstanding concerns raised by the Defenders of Wildlife, Planning and Conservation League, Sierra Club California, and the Center for Biological Diversity in a letter that group submitted dated June 21, 2024, for this bill. In particular, the amendments would require a qualifying restoration project to provide a substantial net benefit above baseline conditions, as these terms are defined in the bill.

California State Safe Harbor Agreement Program Act. Collaboration with private landowners is critical to species recovery, as many declining species occur primarily or exclusively on private property. The California State Safe Harbor Agreement Program Act is a voluntary program that encourages private landowners to manage for the net conservation benefit of threatened, endangered, candidate, declining, or vulnerable species.

In return for this collaborative stewardship approach, the landowner receives authorization for acts that are or may become prohibited, such as incidental take of a threatened, endangered, candidate, declining, or vulnerable species. These agreements are analogous to the federal Safe Harbor Agreement program and CDFW has the authority to issue a consistency determination based on a federal Safe Harbor Agreement.

The August 23, 2024, amendments allow state entities to participate in California’s Safe Harbor Program. The amendments also expand the list of federal agreements for which CDFW may issue a consistency determination to include a federal conservation agreement with an enhancement of survival permit, as specified.

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

According to the Senate Appropriations Committee:

• CDFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the Restoration Management Permit program.
• To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
• Unknown revenue impact from any fees collected pursuant to provisions authorizing CDFW to establish a fee schedule that would cover its reasonable costs related to the administration of restoration management permits under this bill.

SUPPORT: (Verified 8/28/24)

Almond Alliance

California Council of Land Trusts

California Ecological Restoration Business Association

California Farm Bureau

California Invasive Plant Council
Midpeninsula Regional Open Space District
Military Services in California
Northern California Water Association
Ojai Valley Land Conservancy
Pollinator Partnership

Santa Clara Valley Open Space Authority
Scott River Watershed Council
Trout Unlimited
Tuolumne River Trust
Wine Institute

WRA, Inc.

OPPOSITION: (Verified 8/26/24)

None received

ARGUMENTS IN SUPPORT: According to the author, “Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California’s various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must “cut the green tape” and streamline its habitat restoration permitting processes.”

“AB 1581 accomplishes this by combining existing duplicative permits into a codified “Restoration Management Permit”. This will prevent the administrative delays and increased agency workload that currently undermine the state’s environmental goals. Thus, AB 1581 will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight.”

ASSEMBLY FLOOR: 80-0, 5/31/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

Prepared by: Catherine Baxter / N.R. & W. / (916) 651-4116

8/28/24 10:52:08

**** END ****

CONCURRENCE IN SENATE AMENDMENTS

CSA1 Bill Id:AB 1581

Author:(Kalra and Mathis)

As Amended Ver:August 23, 2024

Majority vote

SUMMARY

Establishes the Restoration Management Permit (RMP) and revises the California Safe Harbor Agreement (SHA).

Senate Amendments

1. Strike the content of the bill and replace it with 2)–18), below.
2. Authorize the Department of Fish and Wildlife (DFW) to issue an RMP, subject to terms and conditions, to authorize the take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project and to authorize any impacts to fish and wildlife resources as a result of activities otherwise subject to a Lake and Streambed Alteration Agreement (LSAA).
3. Authorize DFW to permit under an RMP for a qualifying restoration project, for management or propagation purposes, the take, possession, import, or export of any of species designated under the California Endangered Species Act (CESA); fully protected birds, mammals, reptiles, amphibians, or fish; plant species designated as rare pursuant to the Native Plant Protection Act (NPPA); and fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life.
4. Authorize DFW to permit through a RMP for a qualifying restoration project the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource. Requires DFW to include in the RMP reasonable measures necessary to protect the affected fish or wildlife resource.
5. Authorize DFW to develop a permit application for the RMP with specified components, including a detailed description of the project activities, baseline conditions, description of species, and California Endangered Quality Act (CEQA) documentation.
6. Enable an applicant for an RMP to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant's project or related documents to assist DFW with developing an RMP that maximizes consistency with other agency authorizations to the extent practicable.
7. Authorize DFW to establish a schedule of fees to cover all or a portion of DFW's costs to administer RMPs, not to exceed DFW's reasonable costs. Requires those fees to be deposited into the Restoration Management Permit Program Fund established by this bill.
8. Exempt the development, adoption, or amendments of permit application forms or guidance materials for RMPs from the Administrative Procedure Act. Requires DFW to post the guidelines, criteria, and permit applications on DFW's internet website.
9. Require DFW to require appropriate species protection, management, monitoring, and reporting measures for each RMP issued.
10. Require DFW to post on its internet website a description of permitted RMPs.
11. Require DFW to submit a report to the Legislature on or before January 1, 2034 that evaluates the impacts and outcomes of the RMP program.
12. Prohibit the issuance of an RMP for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.
13. Define the terms "baseline conditions," "management," "propagation," "qualifying restoration project," and "substantial net benefit" for purposes of this bill.
14. Repeal the RMP Act (#2–#13, above) on January 1, 2035.
15. Revise the definition of "landowner" under the SHA Program Act to include state entities.
16. Allow DFW to make consistency determinations regarding a federal Conservation Benefit Agreement (CBA) with an enhancement of survival permit in compliance with federal regulation.
17. Make findings and declarations, including to express the intent of the Legislature to create a unified, efficient department permitting mechanism for restoration, enhancement, and species recovery projects that simplifies the permitting process for these projects while maintaining existing species and habitat protection requirements.
18. Provide that no reimbursement is required for this bill.

COMMENTS

DFW administers multiple environmental laws to protect the state's plant and animal resources. Generally, these laws and/or their implementing regulations require a permit or other form of approval from DFW if a proposed project or activity will have a substantial negative impact on the resource, as defined in the law. These laws include:

Lake and Streambed Alteration Program. This program requires any person, state or local governmental agency, or public utility to notify DFW prior to beginning any activity that may do one or more of the following:

1. Divert or obstruct the natural flow of any river, stream, or lake;
2. Change the bed, channel, or bank of any river, stream, or lake;
3. Use material from any river, stream, or lake; or
4. Deposit or dispose of material into any river, stream, or lake.

DFW requires an LSAA if the activity may substantially adversely affect fish and wildlife resources with certain limited exceptions.

CESA. CESA was enacted to prevent the extinction of fish, wildlife, plant, and invertebrate species. Species that have been designated as "threatened" or "endangered" are referred to as "listed." The Fish and Game Commission (Commission) is responsible for designating species by relying on scientific analysis. CESA prohibit "take" of a listed species. "Take" is defined as to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. DFW uses the CEQA analysis to determine whether a project will have a significant impact on a listed species. Approximately 250 species are currently listed under CESA.

NPPA. This law authorizes the Commission to designate plants as rare or endangered. The NPPA prohibits take of endangered or rare native plants, but includes some exceptions for agricultural and nursery operations; emergencies; and after properly notifying DFW for vegetation removal from canals, roads, and other sites, changes in land use, and in certain other situations. According to DFW, there are 64 species, subspecies, and varieties of plants that are protected as rare under NPPA. In total, 220 plant species are protected under both CESA and NPPA. The killing or possession of California's rare, threatened, or endangered plant species is prohibited by California law, however DFW may issue permits authorizing the killing or possession of these species under certain circumstances, and generally requires some form of mitigation.

Fully Protected Species. The Legislature designates a species as fully protected. "Fully protected" is considered a more restrictive protection standard than provided for threatened or endangered species under CESA. Fully protected species may not be taken or possessed except with DFW's authorization and only under specific circumstances such as under a natural community conservation plan. State law designates 34 species of birds, reptiles or amphibians, fish, and mammals as fully protected.

Under existing authority, DFW has consolidated the take authorizations required under CESA and for fully protected species for restorations projects under the current RMP, which is not codified. This bill codifies the RMP and expands DFW's authority to offer additional permit streamlining through the RMP. DFW has approved 25 RMPs since 2019.

Streamlining for restoration. Delays in permitting raise the costs of developing and implementing projects. In recent years, the Legislature has taken action to streamline the environmental review and permit process. Two examples relevant to this bill include Habitat Restoration and Enhancement Act (HREA) and the Statutory Exemption for Restoration Projects (SERP). HREA established by AB 2193 (Gordon), Chapter 604, Statutes of 2014, created a process by which DFW permits small-scale, voluntary habitat restoration projects and no additional permits are needed. DFW has permitted 188 projects under HREA since 2015. The Statutory Exemption for Restoration Projects (SERP) is a CEQA exemption for certain fish and wildlife restoration projects and was established by SB 155 (Committee on Budget and Fiscal Review), Chapter 258, Statutes of 2021. SERP has been used 56 times since 2021.

California SHA Program Act. Collaboration with private landowners is critical to species recovery, as many declining species occur primarily or exclusively on private property. The California SHA Program Act is a voluntary program that encourages private landowners to manage for the net conservation benefit of threatened, endangered, candidate, declining, or vulnerable species. In return for this collaborative stewardship approach, the landowner receives authorization for acts that are or may become prohibited, such as incidental take of a threatened, endangered, candidate, declining, or vulnerable species. These agreements are analogous to the federal SHA program and DFW has the authority to issue a consistency determination based on a federal SHA. This bill expands the list of federal agreements for which DFW may issue a consistency determination to include a federal conservation agreement with an enhancement of survival permit.

According to the Author

According to the author, "Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California's various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must "cut the green tape" and streamline its habitat restoration permitting processes. [This bill] accomplishes this by combining existing duplicative permits into a codified "Restoration Management Permit". This will prevent the administrative delays and increased agency workload that currently undermine the state's environmental goals. Thus, [This bill] will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight."

Arguments in Support

Several organizations write in support this bill as it is a part of efforts to "reduce barriers to restoration projects (whether they are funded with private, public or mitigation funds)." Further, "Facilitating restoration would further many important state policies, including, but not limited to, the effort to protect and restore 30 percent of our lands and waters by 2030, recover endangered and threatened species, and use nature-based climate solutions."

Arguments in Opposition

None on file.

FISCAL COMMENTS

According to the Senate Appropriations Committee, this bill has the following fiscal impact:

1. DFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the [RMP] program.
2. To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
3. Unknown revenue impact from any fees collected pursuant to provisions authorizing DFW to establish a fee schedule that would cover its reasonable costs related to the administration of RMPs under this bill.

VOTES:

ASM WATER, PARKS, AND WILDLIFE: 14-0-1

YES: Bauer-Kahan, Mathis, Alanis, Bennett, Megan Dahle, Davies, Friedman, Hart, Kalra, Pellerin, Blanca Rubio, Schiavo, Villapudua, Weber

ABS, ABST OR NV: Ward

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

ASSEMBLY FLOOR: 80-0-0

YES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

SENATE FLOOR: 39-0-1

YES: Allen, Archuleta, Ashby, Atkins, Becker, Blakespear, Bradford, Caballero, Cortese, Dahle, Dodd, Durazo, Eggman, Glazer, Gonzalez, Grove, Hurtado, Jones, Laird, Limón, McGuire, Menjivar, Min, Newman, Nguyen, Niello, Ochoa Bogh, Padilla, Portantino, Roth, Rubio, Seyarto, Skinner, Smallwood-Cuevas, Stern, Umberg, Wahab, Wiener, Wilk

ABS, ABST OR NV: Alvarado-Gil

UPDATED

VERSION: August 23, 2024

CONSULTANT: Stephanie Mitchell / W., P., & W. / (916) 319-2096 FN: 0004965

 THIRD READING  

Bill No: AB 1581

Author: Kalra (D) and Mathis (R)

Amended: 8/23/24 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 10-0, 6/25/24

AYES: Min, Seyarto, Allen, Dahle, Grove, Hurtado, Laird, Limón, Padilla, Stern

NO VOTE RECORDED: Eggman

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/15/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

ASSEMBLY FLOOR: 80-0, 5/31/23 - See last page for vote

SUBJECT: Conservation: Restoration Management Permit Act and California State Safe Harbor Agreement Program Act

SOURCE: Author

DIGEST:

This bill establishes the Restoration Management Permit Act through January 1, 2035, and incorporates federal conservation benefit agreements into the California State Safe Harbor Agreement Program Act.

Senate Floor Amendments of 8/23/24 define terms, expand and clarify permit application requirements, and clarify requirements CDFW must meet in implementing the program. The amendments also expand the bill to amend the California State Safe Harbor Agreement Program Act.

ANALYSIS:

Existing law:

1. Establishes the Fish and Game Commission (FGC), consisting of five members appointed by the Governor and approved by the Senate. Section 20 of Article IV of the California Constitution and Fish and Game Code (FGC) §101.
   1. Vests FGC with the power to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles. (FGC §200.)
2. Establishes CDFW in the California Natural Resources Agency (CNRA) under the control of the CDFW director. (FGC §700.)
   1. Specifies CDFW’s mission is to manage California’s diverse fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment of the public. (FGC §712.1.)
3. Establishes the Lake and Streambed Alteration Program, which generally prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, and other similar activities, as specified, unless certain conditions are met, including that the entity has paid applicable fees and CDFW has issued a lake and streambed alteration agreement (LSAA) that includes reasonable measures necessary to protect the resource, as specified. (FGC §1602).
4. Establishes the California Native Plant Protection Act (NPPA), which generally prohibits a person from importing into this state, or taking, possessing, or selling within this state, any native plant, or any part or product thereof, that the FGC determines to be an endangered native plant or rare native plant, unless CDFW has issued a permit, agreement, plan, or program that authorizes this activity, as specified. (FGC §§1900 et seq.; Title 14, California Code of Regulations, §786.9 (14 CCR §786.9)).
5. Establishes the California Endangered Species Act (CESA), which generally prohibits a person or public agency from importing into this state, exporting out of this state, or taking, possessing, purchasing, or selling within this state, any species, or any part or product thereof, that the FGC determines to be an endangered species or a threatened species, or attempting any of those acts, unless CDFW has authorized those activities by permit. (FGC §§2080 et seq)..
6. Generally prohibits the take or possession of a fully protected bird, mammal, amphibian or reptile, or fish, unless CDFW has authorized the take of the fully protected animal for necessary scientific research, as specified. (FGC §3511, §4700, §5050, and §5515, respectively).
7. Establishes the California State Safe Harbor Agreement Program Act, which establishes a program to encourage landowners to manage their lands voluntarily, by means of state safe harbor agreements approved by CDFW, to benefit endangered, threatened, or candidate species without being subject to additional regulatory restrictions as a result of their conservation efforts. (FGC §§2089.2 et seq.)

This bill establishes the Restoration Management Permit Act through January 1, 2035, and revises the California State Safe Harbor Agreement Program Act. Specifically, this bill:

1. Establishes the Restoration Management Permit Act through January 1, 2035.
2. Authorizes CDFW to issue a restoration management permit, subject to terms and conditions determined by the department, to authorize:
   1. Take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project; and
   2. Any impacts to fish and wildlife resources as a result of activities otherwise subject to an LSAA.
3. Authorizes CDFW to authorize, through a restoration management permit for a qualifying restoration project, for management or propagation purposes, including scientific or educational purposes related to management or propagation, the take, possession, import, or export of any of the following:
   1. Endangered, threatened, or candidate species designated under CESA.
   2. Fully protected birds, mammals, reptiles, amphibians, or fish.
   3. Plant species designated as rare pursuant to NPPA.
   4. Fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life not subject to (a) through (c), above.
4. Authorizes CDFW to authorize, through a restoration management permit for a qualifying restoration project, the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource.
5. Requires CDFW to include in the restoration management permit reasonable measures necessary to protect the affected fish or wildlife resource.
6. Prohibits CDFW from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.
7. Authorizes CDFW to develop a permit application for restoration management permits, which must include certain components, as specified, including, among others, a detailed description of the project activities.
8. Authorizes an applicant, when applying for a restoration management permit, to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant’s project or related documents to assist CDFW with developing restoration management permits that maximize consistency with other agency authorizations to the extent practicable.
9. Requires CDFW to require appropriate species protection, management, monitoring, and reporting measures in each restoration management permit issued by the department.
10. Authorizes CDFW to establish a schedule of fees to cover all or a portion of CDFW’s costs to administer restoration management permits, not to exceed CDFW’s reasonable costs. Requires the deposit of fees into the Restoration Management Permit Program Fund, established by this bill in the State Treasury.
11. Requires CDFW to post on its internet website a list and description of every qualifying restoration project permitted by the department, as specified.
12. Requires, by January 1, 2034, CDFW to submit a report to the Legislature that evaluates the impacts and outcomes of this chapter on the pace and scale of restoration projects, as specified.
13. Provides that the Administrative Procedure Act (APA) applies to the development, adoption, or amendment of any rules, instructions, or criteria, as specified, but not to the development, adoption, or amendment of permit applications or guidance materials. Requires CDFW to all rules, instructions, criteria, permit applications, and guidance materials on the department’s internet website.
14. Defines terms, including “baseline conditions,” “management,” “propagation,” “qualifying restoration project,” and “substantial net benefit.”
15. Makes findings and declarations.
16. Under the California Safe Harbor Agreement Program Act:
    1. Provides that, if a federal conservation benefit agreement with an enhancement of survival permit includes listed species under CESA, as specified, that no further authorization or approval is necessary from CDFW to take the identified species in accordance with the agreement.
    2. Revises the definition of “landowner” to include state entities.
    3. Corrects a reference and makes other non-substantive changes.
17. Provides that no reimbursement is required for this bill for a specified reason.

Background

Habitat restoration and enhancement projects and infrastructure projects can require multiple layers of environmental review and multiple permits from various agencies. Sometimes, this can delay these projects and raise the costs of developing and implementing projects.

In recent years, the Legislature and Administration have taken action to streamline the environmental review and permit process. For example, AB 2193 (Gordon, Chapter 604, Statutes of 2014) established the Habitat Restoration and Enhancement Act (HREA), which created a process for CDFW to permit small-scale, voluntary habitat restoration projects. Additionally, SB 155 (Committee on Budget and Fiscal Review, Chapter 258, Statutes of 2021) established and SB 174 (Committee on Budget and Fiscal Review, Chapter 74, Statutes of 2024) extended a CEQA exemption for certain fish and wildlife restoration projects that meet specified requirements until January 1, 2030.

The Newsom Administration has sponsored the Cutting the Green Tape initiative to allow ecological restoration and stewardship to occur more quickly, simply, and cost-effectively. The Legislature granted CDFW funding and authority to redirect staff to support this initiative, and required CDFW to annually report on progress. (CDFW’s reports can be found here: https://wildlife.ca.gov/Conservation/Cutting-Green-Tape).

CDFW developed a new Restoration Management Permit (RMP) to help consolidate multiple environmental authorizations into fewer permits, with the goal of developing a single master permitting procedure for voluntary restoration projects. The RMP can authorize take of (1) endangered, threatened, and candidate species pursuant to CESA and (2) fully protected species. Depending on the types of take authorizations needed for a restoration project, the RMP is also designed to work in conjunction with LSAAs.

Comments

Restoration Management Permit Act. According to CDFW, this bill is generally consistent with its RMP program. This bill consolidates more CDFW permits under one permit than currently provided by the RMP program. Additionally, this bill is very similar to HREA – both streamline CDFW’s permitting process for habitat restoration projects. However, HREA specifically targets small-scale projects. Further, this bill’s definition of a qualifying project differs from that for the CEQA exemption for restoration projects. It is not the author’s intent that this bill provide streamlining for the exact same types of projects as that provided by the CEQA exemption. However, much of the time there will be overlap, just not necessarily always.

The August 23, 2024, amendments seek to address outstanding concerns raised by the Defenders of Wildlife, Planning and Conservation League, Sierra Club California, and the Center for Biological Diversity in a letter that group submitted dated June 21, 2024, for this bill. In particular, the amendments would require a qualifying restoration project to provide a substantial net benefit above baseline conditions, as these terms are defined in the bill.

California State Safe Harbor Agreement Program Act. Collaboration with private landowners is critical to species recovery, as many declining species occur primarily or exclusively on private property. The California State Safe Harbor Agreement Program Act is a voluntary program that encourages private landowners to manage for the net conservation benefit of threatened, endangered, candidate, declining, or vulnerable species.

In return for this collaborative stewardship approach, the landowner receives authorization for acts that are or may become prohibited, such as incidental take of a threatened, endangered, candidate, declining, or vulnerable species. These agreements are analogous to the federal Safe Harbor Agreement program and CDFW has the authority to issue a consistency determination based on a federal Safe Harbor Agreement.

The August 23, 2024, amendments allow state entities to participate in California’s Safe Harbor Program. The amendments also expand the list of federal agreements for which CDFW may issue a consistency determination to include a federal conservation agreement with an enhancement of survival permit, as specified.

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

According to the Senate Appropriations Committee:

• CDFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the Restoration Management Permit program.
• To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
• Unknown revenue impact from any fees collected pursuant to provisions authorizing CDFW to establish a fee schedule that would cover its reasonable costs related to the administration of restoration management permits under this bill.

SUPPORT: (Verified 8/27/24)

Almond Alliance

California Council of Land Trusts

California Ecological Restoration Business Association

California Farm Bureau

California Invasive Plant Council
Midpeninsula Regional Open Space District
Military Services in California
Northern California Water Association
Ojai Valley Land Conservancy
Pollinator Partnership

Santa Clara Valley Open Space Authority
Scott River Watershed Council
Trout Unlimited
Tuolumne River Trust
Wine Institute

WRA, Inc.

OPPOSITION: (Verified 8/26/24)

None received

ARGUMENTS IN SUPPORT: According to the author, “Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California’s various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must “cut the green tape” and streamline its habitat restoration permitting processes.”

“AB 1581 accomplishes this by combining existing duplicative permits into a codified “Restoration Management Permit”. This will prevent the administrative delays and increased agency workload that currently undermine the state’s environmental goals. Thus, AB 1581 will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight.”

ASSEMBLY FLOOR: 80-0, 5/31/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

Prepared by: Catherine Baxter / N.R. & W. / (916) 651-4116

8/27/24 9:47:53

**** END ****

 THIRD READING  

Bill No: AB 1581

Author: Kalra (D) and Mathis (R)

Amended: 8/23/24 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 10-0, 6/25/24

AYES: Min, Seyarto, Allen, Dahle, Grove, Hurtado, Laird, Limón, Padilla, Stern

NO VOTE RECORDED: Eggman

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/15/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

ASSEMBLY FLOOR: 80-0, 5/31/23 - See last page for vote

SUBJECT: Conservation: Restoration Management Permit Act and California State Safe Harbor Agreement Program Act

SOURCE: Author

DIGEST:

This bill establishes the Restoration Management Permit Act through January 1, 2035, and incorporates federal conservation benefit agreements into the California State Safe Harbor Agreement Program Act.

Senate Floor Amendments of 8/23/24 define terms, expand and clarify permit application requirements, and clarify requirements CDFW must meet in implementing the program. The amendments also expand the bill to amend the California State Safe Harbor Agreement Program Act.

ANALYSIS:

Existing law:

1. Establishes the Fish and Game Commission (FGC), consisting of five members appointed by the Governor and approved by the Senate. Section 20 of Article IV of the California Constitution and Fish and Game Code (FGC) §101.
   1. Vests FGC with the power to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles. (FGC §200.)
2. Establishes CDFW in the California Natural Resources Agency (CNRA) under the control of the CDFW director. (FGC §700.)
   1. Specifies CDFW’s mission is to manage California’s diverse fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment of the public. (FGC §712.1.)
3. Establishes the Lake and Streambed Alteration Program, which generally prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, and other similar activities, as specified, unless certain conditions are met, including that the entity has paid applicable fees and CDFW has issued a lake and streambed alteration agreement (LSAA) that includes reasonable measures necessary to protect the resource, as specified. (FGC §1602).
4. Establishes the California Native Plant Protection Act (NPPA), which generally prohibits a person from importing into this state, or taking, possessing, or selling within this state, any native plant, or any part or product thereof, that the FGC determines to be an endangered native plant or rare native plant, unless CDFW has issued a permit, agreement, plan, or program that authorizes this activity, as specified. (FGC §§1900 et seq.; Title 14, California Code of Regulations, §786.9 (14 CCR §786.9)).
5. Establishes the California Endangered Species Act (CESA), which generally prohibits a person or public agency from importing into this state, exporting out of this state, or taking, possessing, purchasing, or selling within this state, any species, or any part or product thereof, that the FGC determines to be an endangered species or a threatened species, or attempting any of those acts, unless CDFW has authorized those activities by permit. (FGC §§2080 et seq)..
6. Generally prohibits the take or possession of a fully protected bird, mammal, amphibian or reptile, or fish, unless CDFW has authorized the take of the fully protected animal for necessary scientific research, as specified. (FGC §3511, §4700, §5050, and §5515, respectively).
7. Establishes the California State Safe Harbor Agreement Program Act, which establishes a program to encourage landowners to manage their lands voluntarily, by means of state safe harbor agreements approved by CDFW, to benefit endangered, threatened, or candidate species without being subject to additional regulatory restrictions as a result of their conservation efforts. (FGC §§2089.2 et seq.)

This bill establishes the Restoration Management Permit Act through January 1, 2035, and revises the California State Safe Harbor Agreement Program Act. Specifically, this bill:

1. Establishes the Restoration Management Permit Act through January 1, 2035.
2. Authorizes CDFW to issue a restoration management permit, subject to terms and conditions determined by the department, to authorize:
   1. Take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project; and
   2. Any impacts to fish and wildlife resources as a result of activities otherwise subject to an LSAA.
3. Authorizes CDFW to authorize, through a restoration management permit for a qualifying restoration project, for management or propagation purposes, including scientific or educational purposes related to management or propagation, the take, possession, import, or export of any of the following:
   1. Endangered, threatened, or candidate species designated under CESA.
   2. Fully protected birds, mammals, reptiles, amphibians, or fish.
   3. Plant species designated as rare pursuant to NPPA.
   4. Fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life not subject to (a) through (c), above.
4. Authorizes CDFW to authorize, through a restoration management permit for a qualifying restoration project, the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource.
5. Requires CDFW to include in the restoration management permit reasonable measures necessary to protect the affected fish or wildlife resource.
6. Prohibits CDFW from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.
7. Authorizes CDFW to develop a permit application for restoration management permits, which must include certain components, as specified, including, among others, a detailed description of the project activities.
8. Authorizes an applicant, when applying for a restoration management permit, to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant’s project or related documents to assist CDFW with developing restoration management permits that maximize consistency with other agency authorizations to the extent practicable.
9. Requires CDFW to require appropriate species protection, management, monitoring, and reporting measures in each restoration management permit issued by the department.
10. Authorizes CDFW to establish a schedule of fees to cover all or a portion of CDFW’s costs to administer restoration management permits, not to exceed CDFW’s reasonable costs. Requires the deposit of fees into the Restoration Management Permit Program Fund, established by this bill in the State Treasury.
11. Requires CDFW to post on its internet website a list and description of every qualifying restoration project permitted by the department, as specified.
12. Requires, by January 1, 2034, CDFW to submit a report to the Legislature that evaluates the impacts and outcomes of this chapter on the pace and scale of restoration projects, as specified.
13. Provides that the Administrative Procedure Act (APA) applies to the development, adoption, or amendment of any rules, instructions, or criteria, as specified, but not to the development, adoption, or amendment of permit applications or guidance materials. Requires CDFW to all rules, instructions, criteria, permit applications, and guidance materials on the department’s internet website.
14. Defines terms, including “baseline conditions,” “management,” “propagation,” “qualifying restoration project,” and “substantial net benefit.”
15. Makes findings and declarations.
16. Under the California Safe Harbor Agreement Program Act:
    1. Provides that, if a federal conservation benefit agreement with an enhancement of survival permit includes listed species under CESA, as specified, that no further authorization or approval is necessary from CDFW to take the identified species in accordance with the agreement.
    2. Revises the definition of “landowner” to include state entities.
    3. Corrects a reference and makes other non-substantive changes.
17. Provides that no reimbursement is required for this bill for a specified reason.

Background

Habitat restoration and enhancement projects and infrastructure projects can require multiple layers of environmental review and multiple permits from various agencies. Sometimes, this can delay these projects and raise the costs of developing and implementing projects.

In recent years, the Legislature and Administration have taken action to streamline the environmental review and permit process. For example, AB 2193 (Gordon, Chapter 604, Statutes of 2014) established the Habitat Restoration and Enhancement Act (HREA), which created a process for CDFW to permit small-scale, voluntary habitat restoration projects. Additionally, SB 155 (Committee on Budget and Fiscal Review, Chapter 258, Statutes of 2021) established and SB 174 (Committee on Budget and Fiscal Review, Chapter 74, Statutes of 2024) extended a CEQA exemption for certain fish and wildlife restoration projects that meet specified requirements until January 1, 2030.

The Newsom Administration has sponsored the Cutting the Green Tape initiative to allow ecological restoration and stewardship to occur more quickly, simply, and cost-effectively. The Legislature granted CDFW funding and authority to redirect staff to support this initiative, and required CDFW to annually report on progress. (CDFW’s reports can be found here: https://wildlife.ca.gov/Conservation/Cutting-Green-Tape).

CDFW developed a new Restoration Management Permit (RMP) to help consolidate multiple environmental authorizations into fewer permits, with the goal of developing a single master permitting procedure for voluntary restoration projects. The RMP can authorize take of (1) endangered, threatened, and candidate species pursuant to CESA and (2) fully protected species. Depending on the types of take authorizations needed for a restoration project, the RMP is also designed to work in conjunction with LSAAs.

Comments

Restoration Management Permit Act. According to CDFW, this bill is generally consistent with its RMP program. This bill consolidates more CDFW permits under one permit than currently provided by the RMP program. Additionally, this bill is very similar to HREA – both streamline CDFW’s permitting process for habitat restoration projects. However, HREA specifically targets small-scale projects. Further, this bill’s definition of a qualifying project differs from that for the CEQA exemption for restoration projects. It is not the author’s intent that this bill provide streamlining for the exact same types of projects as that provided by the CEQA exemption. However, much of the time there will be overlap, just not necessarily always.

The August 23, 2024, amendments seek to address outstanding concerns raised by the Defenders of Wildlife, Planning and Conservation League, Sierra Club California, and the Center for Biological Diversity in a letter that group submitted dated June 21, 2024, for this bill. In particular, the amendments would require a qualifying restoration project to provide a substantial net benefit above baseline conditions, as these terms are defined in the bill.

California State Safe Harbor Agreement Program Act. Collaboration with private landowners is critical to species recovery, as many declining species occur primarily or exclusively on private property. The California State Safe Harbor Agreement Program Act is a voluntary program that encourages private landowners to manage for the net conservation benefit of threatened, endangered, candidate, declining, or vulnerable species.

In return for this collaborative stewardship approach, the landowner receives authorization for acts that are or may become prohibited, such as incidental take of a threatened, endangered, candidate, declining, or vulnerable species. These agreements are analogous to the federal Safe Harbor Agreement program and CDFW has the authority to issue a consistency determination based on a federal Safe Harbor Agreement.

The August 23, 2024, amendments allow state entities to participate in California’s Safe Harbor Program. The amendments also expand the list of federal agreements for which CDFW may issue a consistency determination to include a federal conservation agreement with an enhancement of survival permit, as specified.

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

According to the Senate Appropriations Committee:

• CDFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the Restoration Management Permit program.
• To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
• Unknown revenue impact from any fees collected pursuant to provisions authorizing CDFW to establish a fee schedule that would cover its reasonable costs related to the administration of restoration management permits under this bill.

SUPPORT: (Verified 8/26/24)

California Council of Land Trusts

California Ecological Restoration Business Association

California Invasive Plant Council
Midpeninsula Regional Open Space District
Military Services in California
Northern California Water Association
Ojai Valley Land Conservancy
Santa Clara Valley Open Space Authority
Scott River Watershed Council
Trout Unlimited
Tuolumne River Trust
WRA, Inc.

OPPOSITION: (Verified 8/26/24)

None received

ARGUMENTS IN SUPPORT: According to the author, “Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California’s various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must “cut the green tape” and streamline its habitat restoration permitting processes.”

“AB 1581 accomplishes this by combining existing duplicative permits into a codified “Restoration Management Permit”. This will prevent the administrative delays and increased agency workload that currently undermine the state’s environmental goals. Thus, AB 1581 will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight.”

ASSEMBLY FLOOR: 80-0, 5/31/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

Prepared by: Catherine Baxter / N.R. & W. / (916) 651-4116

8/26/24 11:53:09

**** END ****

 THIRD READING  

Bill No: AB 1581

Author: Kalra (D) and Mathis (R)

Amended: 8/15/24 in Senate

Vote: 21

SENATE NATURAL RES. & WATER COMMITTEE: 10-0, 6/25/24

AYES: Min, Seyarto, Allen, Dahle, Grove, Hurtado, Laird, Limón, Padilla, Stern

NO VOTE RECORDED: Eggman

SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/15/24

AYES: Caballero, Jones, Ashby, Becker, Bradford, Seyarto, Wahab

ASSEMBLY FLOOR: 80-0, 5/31/23 - See last page for vote

SUBJECT: The Restoration Management Permit Act

SOURCE: Sustainable Conservation

DIGEST:

This bill establishes the Restoration Management Permit Act through January 1, 2035. This act authorizes the California Department of Fish and Wildlife (CDFW or department) to issue a restoration management permit for a qualifying restoration project for (1) the take, possession, import, or export of any fish, wildlife, or plant species and (2) any impacts to fish and wildlife resources resulting from activities otherwise subject to a lake and streambed alteration permit, as provided.

ANALYSIS:

Existing law:

1. Establishes the Fish and Game Commission (FGC), consisting of five members appointed by the Governor and approved by the Senate. Section 20 of Article IV of the California Constitution and Fish and Game Code (FGC) §101.
   1. Vests FGC with the power to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles. (FGC §200.)
2. Establishes CDFW in the California Natural Resources Agency (CNRA) under the control of the CDFW director. (FGC §700.)
   1. Specifies CDFW’s mission is to manage California’s diverse fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment of the public. (FGC §712.1.)
3. Establishes the Lake and Streambed Alteration Program, which generally prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, and other similar activities, as specified, unless certain conditions are met, including that the entity has paid applicable fees and CDFW has issued a lake and streambed alteration agreement (LSAA) that includes reasonable measures necessary to protect the resource, as specified. (FGC §1602).
4. Establishes the California Native Plant Protection Act (NPPA), which generally prohibits a person from importing into this state, or taking, possessing, or selling within this state, any native plant, or any part or product thereof, that the FGC determines to be an endangered native plant or rare native plant, unless CDFW has issued a permit, agreement, plan, or program that authorizes this activity, as specified. (FGC §§1900 et seq.; Title 14, California Code of Regulations, §786.9 (14 CCR §786.9)).
5. Establishes the California Endangered Species Act (CESA), which generally prohibits a person or public agency from importing into this state, exporting out of this state, or taking, possessing, purchasing, or selling within this state, any species, or any part or product thereof, that the FGC determines to be an endangered species or a threatened species, or attempting any of those acts, unless CDFW has authorized those activities by permit. (FGC §§2080 et seq)..
6. Generally prohibits the take or possession of a fully protected bird, mammal, amphibian or reptile, or fish, unless CDFW has authorized the take of the fully protected animal for necessary scientific research, as specified. (FGC §3511, §4700, §5050, and §5515, respectively).
7. Establishes the Habitat Restoration and Enhancement Act (HREA), which authorizes a project proponent to submit a habitat restoration or enhancement project to the CDFW director for approval.
   1. Defines a habitat restoration or enhancement project to mean a project with the primary purpose of improving fish and wildlife habitat.
   2. Requires the CDFW director to approve a habitat restoration or enhancement project if specified conditions are met.
   3. Provides that the CDFW director’s approval of a habitat restoration or enhancement project is in lieu of any other permit, agreement, license, or other approval issued by CDFW. FGC §§1650 et seq..
8. Until January 1, 2030, exempts from the California Environmental Quality Act (CEQA), if certain requirements are met, a project to (1) conserve, restore, protect, or enhance, and assist in the recovery of California native fish and wildlife, and habitat upon which they depend; or (2) restore or provide habitat for California native fish and wildlife. This exemption is referred to as SERP, short for the Statutory Exemption for Restoration Projects. Public Resources Code (PRC) §21080.56.
9. Establishes a goal of the state to conserve at least 30% of California’s lands and coastal waters by 2030. PRC §71450.

This bill establishes the Restoration Management Permit Act through January 1, 2035. This act:

1. Authorizes CDFW to issue a restoration management permit, subject to terms and conditions determined by the department, to authorize:
   1. Take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project; and
   2. Any impacts to fish and wildlife resources as a result of activities otherwise subject to an LSAA.
2. Authorizes CDFW to authorize, through a restoration management permit for a qualifying restoration project, for management or propagation purposes, including scientific or educational purposes related to management or propagation, the take, possession, import, or export of any of the following:
   1. Endangered, threatened, or candidate species designated under CESA.
   2. Fully protected birds, mammals, reptiles, amphibians, or fish.
   3. Plant species designated as rare pursuant to NPPA.
   4. Fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life not subject to (a) through (c), above.
3. Authorizes CDFW to authorize, through a restoration management permit for a qualifying restoration project, the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource.
4. Requires CDFW to include in the restoration management permit reasonable measures necessary to protect the affected fish or wildlife resource.
5. Prohibits CDFW from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.
6. Authorizes CDFW to develop a permit application for restoration management permits, which must include certain components, as specified, including, among others, a detailed description of the project activities.
7. Authorizes an applicant, when applying for a restoration management permit, to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant’s project or related documents to assist CDFW with developing restoration management permits that maximize consistency with other agency authorizations to the extent practicable.
8. Requires CDFW to require appropriate species protection and management measures in each restoration management permit issued by the department.
9. Authorizes CDFW to establish a schedule of fees to cover all or a portion of CDFW’s costs to administer restoration management permits, not to exceed CDFW’s reasonable costs.
10. Requires the deposit of fees received under the Restoration Management Permit Program into the Restoration Management Permit Program Fund, established by this bill in the State Treasury.
11. Requires CDFW to post on its internet website a list and description of every qualifying restoration project permitted by the department, as specified.
12. Requires, by January 1, 2034, CDFW to submit a report to the Legislature that evaluates the impacts and outcomes of this chapter on the pace and scale of restoration projects, as specified.
13. Provides that the Administrative Procedure Act (APA) applies to the development, adoption, or amendment of guidelines, criteria, or permit applications, as specified. Requires CDFW to post the guidelines, criteria, and permit applications on its internet website.
14. Defines terms, including “management,” “propagation,” and “qualifying restoration project.”
15. Makes findings and declarations.
16. Provides that no reimbursement is required for this bill for a specified reason.

Background

Habitat restoration and enhancement projects and infrastructure projects can require multiple layers of environmental review and multiple permits from various agencies. Sometimes, this can delay these projects and raise the costs of developing and implementing projects.

In recent years, the Legislature and Administration have taken action to streamline the environmental review and permit process. For example, AB 2193 (Gordon, Chapter 604, Statutes of 2014) established the Habitat Restoration and Enhancement Act (HREA), which created a process for CDFW to permit small-scale, voluntary habitat restoration projects. Additionally, SB 155 (Committee on Budget and Fiscal Review, Chapter 258, Statutes of 2021) established and SB 174 (Committee on Budget and Fiscal Review, Chapter 74, Statutes of 2024) extended a CEQA exemption for certain fish and wildlife restoration projects that meet specified requirements until January 1, 2030.

The Newsom Administration has sponsored the Cutting the Green Tape initiative to allow ecological restoration and stewardship to occur more quickly, simply, and cost-effectively. The Legislature granted CDFW funding and authority to redirect staff to support this initiative, and required CDFW to annually report on progress. (CDFW’s reports can be found here: https://wildlife.ca.gov/Conservation/Cutting-Green-Tape).

CDFW developed a new Restoration Management Permit (RMP) to help consolidate multiple environmental authorizations into fewer permits, with the goal of developing a single master permitting procedure for voluntary restoration projects. The RMP can authorize take of (1) endangered, threatened, and candidate species pursuant to CESA and (2) fully protected species. Depending on the types of take authorizations needed for a restoration project, the RMP is also designed to work in conjunction with LSAAs.

Comments

Connection to other streamlining efforts. According to CDFW, this bill is generally consistent with its RMP program and the sponsors note it would codify that program. This bill consolidates more CDFW permits under one permit than currently provided by the RMP program. Additionally, this bill is very similar to HREA – both streamline CDFW’s permitting process for habitat restoration projects. However, HREA specifically targets small-scale projects. Further, this bill’s definition of a qualifying project differs from that for the CEQA exemption for restoration projects. It is not the author or sponsor’s intent that this bill provide streamlining for the exact same types of projects as that provided by the CEQA exemption. However, they do note that much of the time there will be overlap, just not necessarily always.

Letter of concern. The Defenders of Wildlife, Planning and Conservation League, Sierra Club California, and the Center for Biological Diversity submitted a letter of concern dated June 21, 2024, for this bill. While these organizations support efforts to reduce barriers to restoration projects, they are concerned that “this proposed restoration permit supplants the environmental protections in CESA, NPPA, the LSAA process and fully protected species without providing a clear articulation of the nature and extent of the benefit provided by a restoration project.”

Further, they note that “this lack of clarity around what types of projects are considered a “qualified restoration project” could lead to the permitting of projects that can harm instead of benefit the environment or projects that once built will not be maintained to ensure that they will provide restoration benefits. There are examples of projects that have been billed as “restoration” but have harmed the environment or not provided the expected benefit due to poor design, invasive species, or other factors. For example, in a study of 143 mitigation wetland projects commissioned by the State Water Resources Control Board found that “most mitigation sites were not optimally functioning wetlands.”

Outstanding concerns from this group include:

• Clarifying that if this permit is to be used for mitigation projects, the mitigation project must produce an environmental benefit greater than what was required as the increment of mitigation.
• Clarifying that the level of environmental benefit to be achieved by the restoration project is substantial, long-term, and greater than the impact created by the project.

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

According to the Senate Appropriations Committee:

• CDFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the Restoration Management Permit program.
• To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
• Unknown revenue impact from any fees collected pursuant to provisions authorizing CDFW to establish a fee schedule that would cover its reasonable costs related to the administration of restoration management permits under this bill.

SUPPORT: (Verified 8/16/24)

Sustainable Conservation (source)

California Council of Land Trusts

California Ecological Restoration Business Association

California Invasive Plant Council
Midpeninsula Regional Open Space District
Military Services in California
Northern California Water Association
Ojai Valley Land Conservancy
Santa Clara Valley Open Space Authority
Scott River Watershed Council
Trout Unlimited
Tuolumne River Trust
WRA, Inc.

OPPOSITION: (Verified 8/16/24)

None received

ARGUMENTS IN SUPPORT: According to the author, “Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California’s various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must “cut the green tape” and streamline its habitat restoration permitting processes.”

“AB 1581 accomplishes this by combining existing duplicative permits into a codified “Restoration Management Permit”. This will prevent the administrative delays and increased agency workload that currently undermine the state’s environmental goals. Thus, AB 1581 will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight.”

ASSEMBLY FLOOR: 80-0, 5/31/23

AYES: Addis, Aguiar-Curry, Alanis, Alvarez, Arambula, Bains, Bauer-Kahan, Bennett, Berman, Boerner, Bonta, Bryan, Calderon, Juan Carrillo, Wendy Carrillo, Cervantes, Chen, Connolly, Megan Dahle, Davies, Dixon, Essayli, Flora, Mike Fong, Vince Fong, Friedman, Gabriel, Gallagher, Garcia, Gipson, Grayson, Haney, Hart, Holden, Hoover, Irwin, Jackson, Jones-Sawyer, Kalra, Lackey, Lee, Low, Lowenthal, Maienschein, Mathis, McCarty, McKinnor, Muratsuchi, Stephanie Nguyen, Ortega, Pacheco, Papan, Jim Patterson, Joe Patterson, Pellerin, Petrie-Norris, Quirk-Silva, Ramos, Reyes, Luz Rivas, Robert Rivas, Rodriguez, Blanca Rubio, Sanchez, Santiago, Schiavo, Soria, Ta, Ting, Valencia, Villapudua, Waldron, Wallis, Ward, Weber, Wicks, Wilson, Wood, Zbur, Rendon

Prepared by: Catherine Baxter / N.R. & W. / (916) 651-4116

8/18/24 8:50:52

**** END ****

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 1581 (Kalra) - The Restoration Management Permit Act

Bill Summary:

This bill would authorize the Department of Fish and Wildlife (DFW) to issue a Restoration Management Permit, as provided, for qualifying restoration projects to allow for (1) the take, possession, import, or export of any fish, wildlife, or plant species, and (2) any impacts to fish and wildlife resources resulting from activities otherwise subject to a lake and streambed alteration permit.

*********** ANALYSIS ADDENDUM – SUSPENSE FILE ***********

The following information is revised to reflect amendments

adopted by the committee on August 15, 2024

Fiscal Impact:

• DFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the Restoration Management Permit program.
• To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
• Unknown revenue impact from any fees collected pursuant to provisions authorizing DFW to establish a fee schedule that would cover its reasonable costs related to the administration of restoration management permits under this bill.

Committee Amendments:

Committee amendments would prohibit CDFW from issuing a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.

-- END --

SENATE COMMITTEE ON

Senator Anna Caballero, Chair

2023 - 2024 Regular Session

AB 1581 (Kalra) - The Restoration Management Permit Act

Bill Summary:

This bill would authorize the Department of Fish and Wildlife (DFW) to issue a Restoration Management Permit, as provided, for qualifying restoration projects to allow for (1) the take, possession, import, or export of any fish, wildlife, or plant species, and (2) any impacts to fish and wildlife resources resulting from activities otherwise subject to a lake and streambed alteration permit.

Fiscal Impact:

• DFW estimates one-time costs of about $614,000 spread over 2025-26 and 2026-27 (General Fund) to promulgate regulations implementing the Restoration Management Permit program.
• To the extent restoration project proposals increase as a result of this bill, potential cost pressures to various departments responsible for review, administration, oversight, or other involvement with such projects.
• Unknown revenue impact from any fees collected pursuant to provisions authorizing DFW to establish a fee schedule that would cover its reasonable costs related to the administration of restoration management permits under this bill.

Background:

DFW administers multiple environmental laws to protect the state’s plant and animal resources that generally require a permit or other approval if a proposed project or activity will have a substantial negative impact, as defined in the law. Habitat restoration and enhancement projects and infrastructure projects can require multiple layers of environmental review and multiple permits from various agencies. Sometimes, this can delay these projects and raise the costs of developing and implementing projects.

Legislative action on environmental streamlining. In recent years, the Legislature has taken action to streamline the environmental review and permit process. For example, AB 2193 (Gordon, Chapter 604, Statutes of 2014) established the Habitat Restoration and Enhancement Act (HREA) for small-scale, voluntary habitat restoration projects. DFW has approved 188 projects under this program since HREA’s establishment. This includes projects to reconfigure or restore channels, enhance habitat, and restore floodplains or meadows. SB 716 (McGuire, Chapter 735, Statutes of 2021) extended the sunset date on this program to January 1, 2027.

Additionally, SB 155 (Committee on Budget and Fiscal Review, Chapter 258, Statutes of 2021) established a CEQA exemption for certain fish and wildlife restoration projects that meet specified requirements until January 1, 2025. This exemption is known as the Statutory Exemption for Restoration Projects (or SERP). Since its enactment, SERP has been used a number of times, including in Ventura County to restore 213 acres of land by removing invasive grass species and in Humboldt County to reroute and reconfigure a creek, create and connect off-channel habitat, install large wood features, and plant native species.

Further, the Legislature has authorized the take of fully protected species on a case-by-case basis for certain projects. In these instances, take is authorized when take is minimized and fully mitigated, the species would not become extinct due to the take, and a monitoring program and adaptive management process is required, among other project-specific requirements. For example, take of the Lost River sucker and the shortnose sucker is authorized in conjunction with the decommissioning and removal of four dams on the Klamath River. More recently, SB 147 (Ashby, Chapter 59, Statutes of 2023) authorized DFW, until December 31, 2033, to issue a permit under CESA to authorize the take of a fully protected species resulting from impacts related to the implementation of certain infrastructure projects, as specified.

Newsom Administration action on environmental streamlining. In October 2020, Governor Newsom issued Executive Order No. N-82-20, which directed state agencies to “implement actions to increase the pace and scale of environmental restoration and land management efforts by streamlining the state’s process to approve and facilitate these projects.” The Cutting the Green Tape (CGT) initiative, which comes from that executive order, is focused on improving interagency coordination, partnerships, and agency processes and policies to allow ecological restoration and stewardship to occur more quickly, simply, and cost-effectively. As part of the CGT initiative, DFW received $4 million in fiscal year 2020-21 to increase the pace and scale of restoration work and redirect 19 staff to support the CGT initiative. The 2021-22 budget made permanent 18 positions and $3.8 million annually for continued support of the CGT initiative. DFW is required to report annually on outcomes, including quantifying impacts on timelines for processing permits, and the number of permits granted, among other things, but has not provided a report since 2022. In an internal memo dated February 15, 2022, DFW noted development of a new Restoration Management Permit to help consolidate multiple environmental authorizations into fewer permits, with the goal of developing a single master permitting procedure for voluntary restoration projects

Proposed Law:

This bill would:

1. Authorize DFW to issue a restoration management permit, subject to terms and conditions determined by the department, allowing:
   1. Take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project; and
   2. Any impacts to fish and wildlife resources as a result of activities otherwise subject to an LSAA.
2. Authorize DFW to authorize, through a restoration management permit for a qualifying restoration project, for management or propagation purposes, including scientific or educational purposes related to management or propagation, the take, possession, import, or export of any of the following:
   1. Endangered, threatened, or candidate species designated under CESA.
   2. Fully protected birds, mammals, reptiles, amphibians, or fish.
   3. Plant species designated as rare pursuant to NPPA.
   4. Fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life not subject to (a) through (c), above.
3. Authorize DFW to authorize, through a restoration management permit for a qualifying restoration project, the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource.
   1. Require DFW to include in the restoration management permit reasonable measures necessary to protect the affected fish or wildlife resource.
4. Authorize DFW to develop a permit application for restoration management permits, which must include certain components, as specified, including, among others, a detailed description of the project activities.
5. Authorize an applicant, when applying for a restoration management permit, to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant’s project or related documents to assist DFW with developing restoration management permits that maximize consistency with other agency authorizations to the extent practicable.
6. Authorize DFW to establish a schedule of fees to cover all or a portion of DFW’s costs to administer restoration management permits, not to exceed DFW’s reasonable costs.
7. Require the deposit of fees received under the Restoration Management Permit Program into the Restoration Management Permit Program Fund, established by this bill in the State Treasury.
8. Require DFW to post the guidelines, criteria, and permit applications on its internet website.
9. Require that DFW require appropriate species protection and management measures in each restoration management permit issued by the department.
10. Require DFW to post a list and description of every qualifying restoration project permitted by the department on its website.
    1. DFW shall note the county or counties and the watershed or watersheds in which each project is located.
11. Require DFW, on or before January 1, 2034, to submit a report to the Legislature that evaluates the impacts and outcomes of this chapter on the pace and scale of restoration projects and includes:
    1. A list and description of every qualifying restoration project permitted by the department pursuant to this chapter. The description shall note the county or counties and the watershed or watersheds in which each project is located.
    2. The number of days to process each permit, including a discussion of the reasons for any permitting delays.
    3. Identification of any qualifying restoration projects permitted by the department that also qualified for an exemption from the California Environmental Quality Act pursuant to Section 21080.56 of the Public Resources Code.
    4. An analysis of the impacts and outcomes of this chapter, including whether the implementation of this chapter helped to reduce permit processing times for restoration projects.
    5. Recommendations to improve the program.
12. Define terms, including “management,” “propagation,” and “qualifying restoration project.”
13. Make findings and declarations, including to express the intent of the Legislature to create a unified, efficient department permitting mechanism for restoration, enhancement, and species recovery projects that simplifies the permitting process for these projects while maintaining existing species and habitat protection requirements.
14. Provide that no reimbursement is required for this bill for a specified reason.
15. Sunset on January 1, 2035.

Related Legislation:

AB 2643 (Wood, 2024), in the March 21, 2024, version of the bill, would have made SERP permanent. This provision was later removed from the bill.

AB 830 (Soria, 2024) would have exempted the temporary operation of existing infrastructure or temporary pumps being used to divert flood stage and monitor stage flows to beneficial groundwater recharge necessary to protect downstream life and property from the requirements of the LSAA process. This bill was held on the suspense file in the Assembly Appropriations Committee.

AB 1024 (Aguiar-Curry, 2024) would have exempted entities that hold a registration for small domestic, small irrigation, or livestock stockpond water use from the requirement to enter into an LSAA. This bill was held on the suspense file in the Assembly Appropriations Committee.

AB 2610 (Garcia, 2024) would authorize DFW, if certain conditions are met, to authorize the take of fully protected species resulting from impacts attributable to the implementation of any System Conservation Implementation Agreement between the United States Bureau of Reclamation and the Imperial Irrigation District to implement the Lower Colorado River Basin System Conservation and Efficiency Program, as provided.

SB 147 (Ashby, Chapter 59, Statutes of 2023) authorizes, until December 31, 2033, the take of fully protected species for certain infrastructure projects, as defined, by permit, if specified conditions are met.

AB 2362 (Mullin, 2022) would have created an Interagency Working Group, as defined, to coordinate regulatory review and permitting mechanisms and undertake certain tasks to expedite permitting of environmentally beneficial projects, as defined, among other things. This bill died on the Senate inactive file.

SB 155 (Committee on Budget and Fiscal Review, Chapter 258, Statutes of 2021) created SERP.

SB 716 (McGuire, Chapter 735, Statutes of 2021) extends the Habitat Restoration and Enhancement Act sunset date until January 1, 2027, among other provisions.

AB 72 (Petrie-Norris, Chapter 369, Statutes of 2021) requires CNRA to explore and implement more coordinated and efficient permitting processes for coastal adaptation projects that use natural infrastructure.

AB 2193 (Gordon, Chapter 604, Statutes of 2014) establishes the Habitat Restoration and Enhancement Act, which provides a process to permit small-scale, voluntary habitat restoration projects.

Staff Comments:

DFW has been historically underfunded. The recent service-based budgeting effort at DFW revealed that DFW received on average about 1/3 of the resources it needs to fulfill its mission. While the administration did not include a plan to sustainably fund DFW, despite the requirement to do so, the Legislature responded to this effort by providing additional General Fund allocations. Given the current condition of the General Fund, it is unlikely this additional funding will be sustained over the long-term.

It is worth noting that some of the delays with processing permits at DFW stem from insufficient staff and funding to process these permits. Fully funding and providing sufficient positions DFW could help to speed up these processes. However, DFW has authority to raise certain fees to cover costs, so it is unclear why, where possible, this effort has not consistently been pursued.

This bill would authorize DFW to establish a schedule of fees to be charged for all or a portion of the department’s costs relating to the administration of restoration management permits under the bill, not to exceed the department’s reasonable costs.

Potential costs if restoration project proposals increase. The State Water Board anticipates no direct fiscal impact from this bill as it’s currently written, but notes potential costs it could incur from creation of a streamlined DFW process. To the extent this bill creates a process by which more restoration project proposals result, the State Water Board estimates unknown but potentially significant costs for additional workload associated with permits and other water quality requirements. Absent an appropriation, permitting costs would be incurred by the Waste Discharge Permit Fund. For all other work related to dredge and fill program requirements, costs would come from the Section 401 Water Quality Certification Fund.

-- END --

SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Dave Min, Chair

2023 - 2024 Regular

Bill No: AB 1581 Hearing Date: June 25, 2024

Subject: The Restoration Management Permit Act

SUMMARY

This bill would establish the Restoration Management Permit Act. This act would authorize the California Department of Fish and Wildlife (CDFW or department) to issue a restoration management permit for a qualifying restoration project for (1) the take, possession, import, or export of any listed or candidate species under the California Endangered Species Act (CESA), fully protected species, any plant species designated as rare, and any other fish, wildlife, or plant species and (2) any impacts to fish and wildlife resources as a result of activities otherwise subject to a lake and streambed alteration permit, as provided.

BACKGROUND AND EXISTING LAW

CDFW administers multiple environmental laws to protect the state’s plant and animal resources. Generally, these laws and/or their implementing regulations require a permit or other form of approval from CDFW if a proposed project or activity will have a substantial negative impact on the resource, as defined in the law. These laws include:

1. Lake and Streambed Alteration Program. This program requires any person, state or local governmental agency, or public utility to notify CDFW prior to beginning any activity that may do one or more of the following:

• Divert or obstruct the natural flow of any river, stream, or lake;
• Change the bed, channel, or bank of any river, stream, or lake;
• Use material from any river, stream, or lake; or
• Deposit or dispose of material into any river, stream, or lake.

CDFW requires a Lake or Streambed Alteration agreement (LSAA) if the activity may substantially adversely affect fish and wildlife resources with certain limited exceptions.

1. CESA. This law conserves and protects plant and animal species at risk of extinction. The Fish and Game Commission (FGC) is responsible for designating plant and animal species as threatened or endangered. Approximately 250 species are currently listed under CESA. CESA makes it illegal to import, export, take, possess, purchase, sell, or attempt to do any of those actions to species that are designated as threatened, endangered, or candidates for listing, unless permitted by CDFW. “Take” is defined as to “hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill.” CDFW uses the CEQA analysis to determine whether a project will have a significant impact on a listed species.
2. California Native Plant Protection Act (NPPA). This law authorizes the FGC to designate plants as rare or endangered. The NPPA prohibits take of endangered or rare native plants, but includes some exceptions for agricultural and nursery operations; emergencies; and after properly notifying CDFW for vegetation removal from canals, roads, and other sites, changes in land use, and in certain other situations.

According to CDFW, there are 64 species, subspecies, and varieties of plants that are protected as rare under NPPA, and 156 species, subspecies, and varieties of plants that are protected as threatened or endangered under CESA, resulting in approximately 220 native plants that are designated as rare, threatened, or endangered. Further, over 2,000 more plant taxa are considered to be of conservation concern. The killing or possession of California’s rare, threatened, or endangered plant species is prohibited by California law, however CDFW may issue permits authorizing the killing or possession of these species under certain circumstances, such as for scientific, educational, or management purposes.

1. Fully Protected Species. State law designates 34 species of birds, reptiles or amphibians, fish, and mammals as fully protected. These include, for example, the California condor, the rough sculpin, and the Guadalupe fur seal. Fully protected is considered a more restrictive protection standard than provided for threatened or endangered species under CESA or the federal Endangered Species Act. Fully protected species may not be taken or possessed except with CDFW’s authorization and only under specific circumstances. Specifically, CDFW may authorize take of fully protected species for necessary scientific research, including efforts to support recovery of fully protected or CESA-listed species, relocation of a fully protected bird species for the protection of livestock, or if the fully protected species is listed as a covered species whose conservation and management is provided for in a Natural Community Conservation Plan. 

Legislative environmental streamlining. Habitat restoration and enhancement projects and infrastructure projects can require multiple layers of environmental review and multiple permits from various agencies. Sometimes, this can delay these projects and raise the costs of developing and implementing projects. In recent years, the Legislature has taken action to streamline the environmental review and permit process.

For example, AB 2193 (Gordon, Chapter 604, Statutes of 2014) established the Habitat Restoration and Enhancement Act (HREA), which created a process for CDFW to permit small-scale, voluntary habitat restoration projects. Restoration and enhancement projects permitted under this law do not require additional permits from CDFW, such as an LSAA or CESA permit. To qualify, an HREA project must:

• Have the primary purpose of improving fish and wildlife habitat;
• Avoid or minimize any incidental impacts; and
• Meet the eligibility requirements for the State Water Resources Control Board’s (SWRCB) Order for Clean Water Act Section 401 General Water Quality Certification for Small Habitat Restoration Projects, which includes not exceeding a maximum project size of five acres or a cumulative 500 linear feet.

CDFW has approved 188 projects under this program since HREA’s establishment. This includes projects to reconfigure or restore channels, enhance habitat, and restore floodplains or meadows. SB 716 (McGuire, Chapter 735, Statutes of 2021) extended the sunset date on this program to January 1, 2027.

Additionally, SB 155 (Committee on Budget and Fiscal Review, Chapter 258, Statutes of 2021) established a CEQA exemption for certain fish and wildlife restoration projects that meet specified requirements until January 1, 2025. This exemption is known as the Statutory Exemption for Restoration Projects (or SERP). Since its enactment, SERP has been used a number of times, including in Ventura County to restore 213 acres of land by removing invasive grass species and in Humboldt County to reroute and reconfigure a creek, create and connect off-channel habitat, install large wood features, and plant native species. The Department of Finance has proposed budget trailer bill language this year to eliminate the sunset on SERP that the Legislature is considering.

Further, the Legislature has authorized the take of fully protected species on a case-by-case basis for certain projects. In these instances, take is authorized when take is minimized and fully mitigated, the species would not become extinct due to the take, and a monitoring program and adaptive management process is required, among other project-specific requirements. For example, take of the Lost River sucker and the shortnose sucker is authorized in conjunction with the decommissioning and removal of four dams on the Klamath River. More recently, SB 147 (Ashby, Chapter 59, Statutes of 2023) authorized CDFW, until December 31, 2033, to issue a permit under CESA to authorize the take of a fully protected species resulting from impacts related to the implementation of certain infrastructure projects, as specified.

Administrative environmental streamlining. In October 2020, Governor Newsom issued Executive Order No. N-82-20, which directed state agencies to “implement actions to increase the pace and scale of environmental restoration and land management efforts by streamlining the state’s process to approve and facilitate these projects.” The Cutting the Green Tape (CGT) initiative, which comes from that executive order, notes that the state “face[s] major challenges including climate change, biodiversity loss, and inequity that demand we move faster and more effectively to conserve our natural environment” and “aims to make it easier and more cost effective to deliver good projects that improve our environment.” The initiative is focused on improving interagency coordination, partnerships, and agency processes and policies to allow ecological restoration and stewardship to occur more quickly, simply, and cost-effectively.

In November 2020, the California Landscape Stewardship Network issued Cutting Green Tape: Regulatory Efficiencies for a Resilient Environment (CGT report), prepared at the request of the California Natural Resources Agency (CNRA). The CGT report highlighted the success of some efforts that have improved the speed of implementation for certain small-scale restoration projects, like those completed under HREA. Generally, however, the report found that planning and permitting can represent a significant fraction of projects costs and made a series of recommendations to streamline environmental review processes. This included clarifying eligibility for certain CEQA categorical exemptions, coordinating eligibility requirements across various regulators, developing programmatic approaches to improve permitting of certain projects, developing single, unified permit application, and others.

As part of the CGT initiative, CDFW received $4 million in fiscal year (FY) 2020/21 to increase the pace and scale of restoration work and redirect 19 staff to support the CGT initiative. The FY 2021/22 Budget made permanent 18 positions and $3.8M annually for continued support of the CGT initiative. The item requires CDFW to report annually by October 1 of each year, from 2021 to 2026, on the outcomes of this initiative, including quantifying impacts on timelines for processing permits, and the number of permits granted, among other things. CDFW has not provided a report since 2022.

In January 2021, the CNRA Secretary issued a memo detailing implementation of the CGT initiative. The memo provided extensive direction to CDFW, including to explore and advance options for permitting large-scale restoration projects by means of a combined approach to CESA permits and LSAAs. In response to this direction, CDFW noted in an internal memo dated February 15, 2022, that it had developed a new Restoration Management Permit (RMP) to help consolidate multiple environmental authorizations into fewer permits, with the goal of developing a single master permitting procedure for voluntary restoration projects. The RMP can authorize take of (1) endangered, threatened, and candidate species pursuant to CESA and (2) fully protected species. Depending on the types of take authorizations needed for a restoration project, the RMP is also designed to work in conjunction with LSAAs.

On March 17, 2022, the CNRA Secretary released Transforming Environmental Restoration: Progress on the Cutting Green Tape Initiative that provided an update on the CGT initiative. This report notes that in response to a survey of CNRA boards, conservancies, commissions, councils, and departments, the CGT initiative was in the process of implementing four strategies to improve permitting and regulatory processes; clarify and improve the use of CEQA exemptions where appropriate; simplify grant and loan programs to enhance communication; and improve coordination and collaboration across various entities.

Existing law

1. Establishes the FGC, consisting of five members appointed by the Governor and approved by the Senate. Section 20 of Article IV of the California Constitution and Fish and Game Code (FGC) §101.
   1. Vests FGC with the power to regulate the taking or possession of birds, mammals, fish, amphibians, and reptiles. FGC §200.
2. Establishes CDFW in CNRA under the control of the CDFW director. FGC §700.
   1. Specifies CDFW’s mission is to manage California’s diverse fish, wildlife, and plant resources, and the habitats upon which they depend, for their ecological values and for their use and enjoyment of the public. FGC §712.1.
3. Establishes the Lake and Streambed Alteration Program, which generally prohibits an entity from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, and other similar activities, as specified, unless certain conditions are met, including that the entity has paid applicable fees and CDFW has issued an LSAA that includes reasonable measures necessary to protect the resource, as specified. FGC §1602.
4. Establishes NPPA, which generally prohibits a person from importing into this state, or taking, possessing, or selling within this state, any native plant, or any part or product thereof, that the FGC determines to be an endangered native plant or rare native plant, unless CDFW has issued a permit, agreement, plan, or program that authorizes this activity, as specified. FGC §§1900 et seq.; Title 14, California Code of Regulations, §786.9 (14 CCR §786.9).
5. Establishes CESA, which generally prohibits a person or public agency from importing into this state, exporting out of this state, or taking, possessing, purchasing, or selling within this state, any species, or any part or product thereof, that the FGC determines to be an endangered species or a threatened species, or attempting any of those acts, unless CDFW has authorized those activities by permit. FGC §§2080 et seq..
6. Generally prohibits the take or possession of a fully protected bird, mammal, amphibian or reptile, or fish, unless CDFW has authorized the take of the fully protected animal for necessary scientific research, as specified. FGC §3511, §4700, §5050, and §5515, respectively.
7. Establishes HREA, which authorizes a project proponent to submit a habitat restoration or enhancement project to the CDFW director for approval.
   1. Defines a habitat restoration or enhancement project to mean a project with the primary purpose of improving fish and wildlife habitat.
   2. Requires the CDFW director to approve a habitat restoration or enhancement project if specified conditions are met.
   3. Provides that the CDFW director’s approval of a habitat restoration or enhancement project is in lieu of any other permit, agreement, license, or other approval issued by CDFW. FGC §§1650 et seq..
8. Until January 1, 2025, exempts from CEQA, if certain requirements are met, a project to (1) conserve, restore, protect, or enhance, and assist in the recovery of California native fish and wildlife, and habitat upon which they depend; or (2) restore or provide habitat for California native fish and wildlife. As noted above, this exemption is referred to as SERP, short for the Statutory Exemption for Restoration Projects. Public Resources Code (PRC) §21080.56.
9. Establishes a goal of the state to conserve at least 30% of California’s lands and coastal waters by 2030. PRC §71450.

PROPOSED LAW

This bill would establish the Restoration Management Permit Act, which would:

1. Authorize CDFW to issue a restoration management permit, subject to terms and conditions determined by the department, to authorize:
   1. Take, possession, import, or export of any species or subspecies of fish, wildlife, or plant in association with a qualifying restoration project; and
   2. Any impacts to fish and wildlife resources as a result of activities otherwise subject to an LSAA.
2. Authorize CDFW to authorize, through a restoration management permit for a qualifying restoration project, for management or propagation purposes, including scientific or educational purposes related to management or propagation, the take, possession, import, or export of any of the following:
   1. Endangered, threatened, or candidate species designated under CESA.
   2. Fully protected birds, mammals, reptiles, amphibians, or fish.
   3. Plant species designated as rare pursuant to NPPA.
   4. Fish, amphibians, reptiles, mammals, birds, or the nests or eggs thereof, or any other form of plant or animal life not subject to (a) through (c), above.
3. Authorize CDFW to authorize, through a restoration management permit for a qualifying restoration project, the substantial diversion or obstruction of the natural flow of, or substantial change or use of any material from the bed, channel, or bank of, any river, stream, or lake, which may substantially adversely affect an existing fish or wildlife resource.
   1. Require CDFW to include in the restoration management permit reasonable measures necessary to protect the affected fish or wildlife resource.
4. Authorize CDFW to develop a permit application for restoration management permits, which must include certain components, as specified, including, among others, a detailed description of the project activities.
5. Authorize an applicant, when applying for a restoration management permit, to propose protective measures contained within existing local, state, or federal agency authorizations for the applicant’s project or related documents to assist CDFW with developing restoration management permits that maximize consistency with other agency authorizations to the extent practicable.
6. Authorize CDFW to establish a schedule of fees to cover all or a portion of CDFW’s costs to administer restoration management permits, not to exceed CDFW’s reasonable costs.
7. Require the deposit of fees received under the Restoration Management Permit Program into the Restoration Management Permit Program Fund, established by this bill in the State Treasury.
8. Authorize CDFW to adopt guidelines, criteria, and permit applications to aid in the implementation of this act.
   1. Provide that the Administrative Procedure Act (APA) does not apply to the development, adoption, or amendment of guidelines, criteria, or permit applications, as specified.
   2. Require CDFW to post the guidelines, criteria, and permit applications on CDFW’s internet website.
9. Define terms, including “management,” “propagation,” and “qualifying restoration project.”
10. Make findings and declarations, including to express the intent of the Legislature to create a unified, efficient department permitting mechanism for restoration, enhancement, and species recovery projects that simplifies the permitting process for these projects while maintaining existing species and habitat protection requirements.
11. Provide that no reimbursement is required for this bill for a specified reason.

ARGUMENTS IN SUPPORT

According to the author, “Over the next 80 years, the Earth could lose almost a quarter of its natural habitat unless significant environmental measures are taken. However, California’s various habitat restoration permitting processes frequently duplicate or conflict with each other, leading to detrimental delays and wasted resources. If the state wishes to fulfill important environmental goals like 30x30, it must “cut the green tape” and streamline its habitat restoration permitting processes.”

“AB 1581 accomplishes this by combining existing duplicative permits into a codified “Restoration Management Permit”. This will prevent the administrative delays and increased agency workload that currently undermine the state’s environmental goals. Thus, AB 1581 will be able to decisively address systematic inefficiency without sacrificing important environmental safeguards and agency oversight.”

According to Sustainable Conservation, the sponsor, “Thanks to human development, mammal, bird, and amphibian species have lost 18% of their natural habitat on average over the last 300 years. In fact, 16% of these species have lost more than half of their natural range. This problem is likely only going to get worse with time, with some estimates suggesting that nearly a quarter of the Earth’s natural habitat will be gone within the next 80 years.”

“We can and must reverse these trends, by proactively protecting and restoring natural habitat to save the species that our environment relies on. California is leading the way through our pioneering 30x30 movement (Executive Order N-82-20), and there are two main ways for the state to achieve its goal. First, it can protect remaining untouched natural habitat. Second, it can restore degraded habitat back to a healthy state. Though the latter requires more resources than the former, it offers the distinct advantage of not just stopping habitat loss but reversing it.”

“One of the hurdles to achieving greater habitat restoration is the regulatory process, which can be slow, redundant, and have conflicting requirements issued by the multiple state and federal agencies that oversee permitting. This dynamic can lead to an excess of severe delays, stalled projects, and wasted state agency resources. Fortunately, California has recognized this issue and committed to “cutting the green tape”, that is, streamlining the habitat restoration application and facilitation process (Executive Order N-82-20). This bill, AB 1581, adds to the state’s “cutting the green tape” efforts to accelerate habitat restoration.”

ARGUMENTS IN OPPOSITION

None received.

COMMENTS

Recent amendments. This bill was amended on June 6, 2024, to strike the-then existing language and replace it with new language. The new language represents the outcome of negotiations among the author, sponsor, and administration since last year. However, the new language does not include everything the administration requested. The administration has not taken an official position on this bill.

Connection to SERP. This bill would define a “qualifying restoration project” to mean a management or propagation project that has the primary purpose of restoring native fish, wildlife, plants, or their habitat and that would result in an increase in the quality or quantity of fish, wildlife, plants and/or their habitat as determined by the department.

SERP has a different definition for qualifying projects. A SERP project must (1) conserve, restore, protect, or enhance, and assist in the recovery of California native fish and wildlife, and the habitat upon which they depend; or (2) restore or provide habitat for California native fish and wildlife. Further, the project must result in long-term net benefits to climate resiliency, biodiversity, and sensitive species recovery; and include procedures and ongoing management for the protection of the environment. SERP projects may have incidental public benefits, such as public access and recreation.

It is not the author or sponsor’s intent that this bill provide permit streamlining for the exact same types of projects as the environmental review streamlining provided by SERP. However, they do note that much of the time there will be overlap, just not necessarily always. The Committee may wish to ask the author to elaborate further on this. In particular, what is the intent for streamlining the proposed set of projects versus those included under SERP? Why not integrate the two? It is worth noting that SERP expires January 1, 2025, and the Legislature is considering extending this authority.

Connection to CDFW’s RMP program. According to CDFW, this bill is generally consistent with CDFW’s RMP program. The sponsors see the bill as a codification of the RMP program. Technically, this bill consolidates more CDFW permits under one permit than provided by the RMP program.

Connection to HREA. This bill is very similar to HREA. Both streamline CDFW’s permitting process for habitat restoration projects. However, HREA targets small-scale projects, while this bill is not specific to the project’s size or impact. Also, HREA may not be used to satisfy mitigation requirements, while this bill does not explicitly exclude mitigation projects.

CDFW’s budget challenges. The recent service-based budgeting effort at CDFW revealed that CDFW received on average about 1/3 of the resources it needs to fulfill its mission. While the administration did not include a plan to sustainably fund CDFW, despite the requirement to do so, the Legislature responded to this effort by providing additional General Fund (GF) allocations to CDFW. Given the GF’s condition, it is unlikely this additional funding will be sustained over the long-term.

It is worth noting that some of the delays with processing permits at CDFW stem from insufficient staff and funding to process these permits. Fully funding and providing sufficient positions CDFW could help to speed up these processes. However, CDFW has authority to raise certain fees to cover costs, so it is unclear why, where possible, this effort has not consistently been pursued.

This bill would authorize CDFW to establish a schedule of fees to be charged for all or a portion of the department’s costs relating to the administration of restoration management permits under the bill, not to exceed the department’s reasonable costs.

Committee amendments. Should the bill move forward, the Committee may wish to consider adopting the following amendments.

Clarify qualifying restoration project. Under the bill’s definition of a qualifying restoration project, there is no threshold for how much a project would have to increase the quality or quantity of habitat to qualify for the bill’s streamlining. While most projects presumably would have a significant benefit, projects that have minor benefits would still qualify and could take up a significant amount of CDFW’s time to process. Additionally, there is an existing permit streamlining process under HREA for smaller projects. To avoid duplication of efforts, the Committee may wish to consider amending the bill to require a project result in a long-term net benefit to native fish, wildlife, plants and/or their habitat, as determined by CDFW. [See Amendment 1]

Clarify secondary benefits. The bill requires a qualifying project to have a primary purpose of restoration. This is important to ensure that projects designed for other purposes do not avoid CDFW’s typical permitting processes by calling themselves “restoration.” The bill also notes that a project may have multiple benefits, like recreation or groundwater recharge. To make very clear than habitat and species restoration is the primary purpose of a project that would qualify for the bill’s permit streamlining, the Committee may wish to consider amending the bill to specify that any other benefits provided by a project are secondary or incidental. [See Amendment 2]

Remove rulemaking exemption. This bill would exempt development, adoption, or amendment of guidelines, criteria, or permit applications from the APA, which regulates state agency rulemaking processes. The APA provides uniform standards for the adoption of regulations, opportunities for public input and comment on draft regulations, and a state entity – the Office of Administrative Law – to oversee the process to ensure rulemakings meet established standards. Given the significant streamlining this bill would offer and the need to carefully weigh efforts to increase the pace and scale of restoration projects with protections for the environment, requiring the APA process is warranted here. Therefore, the Committee may wish to consider amending the bill to reinstate the applicability of the APA to the bill. [See Amendment 3]

Ensure project’s outcomes. This bill, unlike SERP, does not include any requirements to ensure a restoration project’s long-term outcomes. The first proposed amendment would require the project provide long-term net benefits, but there is nothing in the bill to provide for this after a project is complete. The Committee may wish to consider amending the bill to require appropriate species protection and management measures, as specified. [See Amendment 4]

Require reporting and add sunset. This bill would establish a new program to streamline CDFW’s permitting processes for qualifying restoration projects. The bill does not include a requirement to evaluate the program’s impact to determine whether it performs as intended. Therefore, the Committee may wish to consider amending the bill to require reporting and to impose a sunset on the program to enable the Legislature to review the program’s performance and determine whether to retain or revise it in the future. [See Amendment 5]

Apply program to native species. This bill inconsistently applies to projects that target native species. The Committee may wish to consider amending the bill to consistently target native species. [See Amendment 6]

Outstanding issue – mitigation projects. This bill does not explicitly exclude projects required for mitigation purposes. It is the intent of the author and sponsor to allow the proposed streamlining to benefit both voluntary restoration projects and compensatory mitigation projects. Some stakeholders have informally raised concerns regarding whether it is appropriate for mitigation projects to qualify for environmental streamlining when the purpose of the project is to undo damage from another project. Mitigation projects are required under law to reestablish a baseline condition, not to further enhance the environment or add to the public good. HREA, for example, does not allow permit streamlining for mitigation projects.

The Committee may wish to ask the author to clarify why the proposed program should provide streamlining to mitigation projects. Additionally, if the program does provide streamlining for these projects, are there unique requirements or standards that should be imposed to qualify mitigation projects for the streamlining? Should the bill distinguish between voluntary restoration projects and compensatory mitigation projects? The Committee may wish to ask the author to commit to working with Committee staff moving forward to address this issue in the bill.

Letter of Concern. The Planning and Conservation League submitted a letter of concern to the Committee on June 14, 2024, to “express that, while we support the intent of accelerating restoration projects in pursuit of meeting California’s 30x30 conservation goals, we have many questions regarding the proposal and want to ensure that the appropriate safeguards and oversight are in place to ensure that this streamlining proposal would produce what is intended.”

Related legislation

AB 2643 (Wood, 2024), in the March 21, 2024, version of the bill, would have made SERP permanent. This provision was later removed from the bill. This bill is pending before this Committee.

AB 830 (Soria, 2024) would have exempted the temporary operation of existing infrastructure or temporary pumps being used to divert flood stage and monitor stage flows to beneficial groundwater recharge necessary to protect downstream life and property from the requirements of the LSAA process. This bill was held on the suspense file in the Assembly Appropriations Committee.

AB 1024 (Aguiar-Curry, 2024) would have exempted entities that hold a registration for small domestic, small irrigation, or livestock stockpond water use from the requirement to enter into an LSAA. This bill was held on the suspense file in the Assembly Appropriations Committee.

AB 2610 (Garcia, 2024) would authorize CDFW, if certain conditions are met, to authorize the take of fully protected species resulting from impacts attributable to the implementation of any System Conservation Implementation Agreement between the United States Bureau of Reclamation and the Imperial Irrigation District to implement the Lower Colorado River Basin System Conservation and Efficiency Program, as provided.

SB 147 (Ashby, Chapter 59, Statutes of 2023) authorizes, until December 31, 2033, the take of fully protected species for certain infrastructure projects, as defined, by permit, if specified conditions are met.

AB 2362 (Mullin, 2022), when it was heard in this committee, would have created an Interagency Working Group, as defined, to coordinate regulatory review and permitting mechanisms and undertake certain tasks to expedite permitting of environmentally beneficial projects, as defined, among other things. This bill died on the Senate inactive file.

SB 155 (Committee on Budget and Fiscal Review, Chapter 258, Statutes of 2021) created SERP.

SB 716 (McGuire, Chapter 735, Statutes of 2021) extends the Habitat Restoration and Enhancement Act sunset date until January 1, 2027, among other provisions.

AB 72 (Petrie-Norris, Chapter 369, Statutes of 2021) requires CNRA to explore and implement more coordinated and efficient permitting processes for coastal adaptation projects that use natural infrastructure.

AB 2193 (Gordon, Chapter 604, Statutes of 2014) establishes the Habitat Restoration and Enhancement Act, which provides a process to permit small-scale, voluntary habitat restoration projects.

SUGGESTED AMENDMENTS

AMENDMENT 1

Amend the first sentence of proposed FGC §1671(c) as follows:

1671. (c) “Qualifying restoration project” means a management or propagation project that has the primary purpose of restoring native fish, wildlife, plants, or their habitat and that would result in an increase in the quality or quantity of a long-term net benefit to native fish, wildlife, plants and/or their habitat as determined by the department.

AMENDMENT 2

Amend the second sentence of proposed FGC §1671(c) as follows:

1671. (c) … A qualifying restoration project may also have multiple secondary or incidental benefits, including, but not limited to, flood risk reduction, recreation, or groundwater recharge.

AMENDMENT 3

Amend proposed FGC §1675 as follows:

1675. The department may adopt guidelines, criteria, and permit applications to aid in the implementation of this chapter. (a) Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code does not shall apply to the development, adoption, or amendment of guidelines, criteria, or permit applications pursuant to this section chapter. These guidelines, criteria, and permit applications shall be posted on the department’s internet website.

AMENDMENT 4

Add subdivision (b) to proposed FGC §1675 as follows:

1675. (b) Appropriate species protection and management measures shall be required in each restoration management permit issued by the department.

AMENDMENT 5

Add proposed FGC §1679 and §1680 as follows:

1679. (a) The department shall post on its internet website a list and description of every qualifying restoration project permitted by the department pursuant to this chapter. The description shall note the county or counties and the watershed or watersheds in which each project is located.

(b) By January 1, 2034, the department shall submit a report to the Legislature that evaluates the impacts and outcomes of this chapter on the pace and scale of restoration projects. This report shall include all of the following:

(1) A list and description of every qualifying restoration project permitted by the department pursuant to this chapter. The description shall note the county or counties and the watershed or watersheds in which each project is located.

(2) The number of days to process each permit, including a discussion of the reasons for any permitting delays.

(3) Identification of any qualifying restoration projects permitted by the department that also qualified for an exemption from the California Environmental Quality Act pursuant to Section 21080.56 of the Public Resources Code.

(4) An analysis of the impacts and outcomes of this chapter, including whether this implementation of this chapter helped to reduce permit processing times for restoration projects.

(5) Recommendations to improve the program.

1680. This chapter shall remain in effect only until January 1, 2035, and as of that date is repealed.

AMENDMENT 6

Clarify through the bill that all references to species are references to “native” species.

SUPPORT

Sustainable Conservation (sponsor)

Midpeninsula Regional Open Space District

Northern California Water Association

Santa Clara Valley Open Space Authority

Trout Unlimited

OPPOSITION

None Received

-- END --

ASSEMBLY THIRD READING

ATR Bill Id:AB 1581

Author:(Kalra and Mathis)

As Amended Ver:April 7, 2023

Majority vote

SUMMARY

Exempts specified entities from the requirement to obtain a lake and streambed alteration agreement (LSAA) from the Department of Fish and Wildlife (DFW) for activities authorized pursuant to a specific take authorization provision under the California Endangered Species Act (CESA), but requires the same notification requirements and payment of fees as those already in place under the LSAA process.

Major Provisions

1. Exempts certain individuals, public agencies, universities, zoological gardens, and scientific or educational institutions authorized to import, export, take, or possess any endangered species, threatened species, or candidate species for scientific, educational, or management purposes from the requirement to obtain an LSAA with DFW, if the entity submits all of the following:
   1. A written notification;
   2. Fee; and
   3. If applicable, a copy of proposed environmental protection measures authorized by other agencies' programmatic habitat restoration permits, as specified.
2. Requires DFW to notify the entity in writing whether the exemption applies within 60 days from the date that the notification is complete and the fee has been paid.

COMMENTS

LSAAs determine the extent to which a planned activity within a stream or river may adversely affect fish or wildlife or habitat and what off-setting mitigation may be required. In the absence of an LSAA, an entity may not substantially divert or obstruct the natural flow of a stream or deposit or dispose of material. Existing law requires the entity to notify DFW, which triggers the negotiation of the standards that may apply to the request. At that point, the entity and DFW enter into an LSAA that contains any necessary provisions to mitigate the planned activity's potentially adverse consequences.

Recent executive orders relating to drought and groundwater recharge (N-7-22, N-3-23, N-4-23) have exempted some projects from LSAAs or the California Environmental Quality Act (CEQA) review of LSAAs. There is also a statutory CEQA exemption for restoration projects in effect until January 1, 2025, for fish and wildlife restoration projects that meet certain requirements.

There are currently LSAA exemptions for several emergency purposes and for activities authorized by a license for cannabis cultivation. The structure of this bill is similar to the cannabis exemption, in that entities are still required to provide notification to DFW and the payment of fees associated with an LSAA. Under this bill, the entity must also submit a copy of proposed environmental protection measures authorized by other agencies' programmatic habitat restoration permits and guidance.

This new exemption is intended for projects that receive a restoration management permit (RMP) from DFW. The RMP is not codified in statute, so this bill does not refer to it specifically. The RMP was developed under the Cutting the Green Tape process to address specific constraints restoration entities face when implementing restoration projects where protected species are present in project work areas. The RMP consolidates take authorizations that voluntary habitat restoration projects may need to obtain into a single streamlined permit. The RMP can authorize state-defined take (hunt, pursue, capture, catch, or kill, or attempt to do so) of endangered, threatened, and candidate species pursuant to CESA as well as fully protected species pursuant to Fish and Game Code Sections 3511, 4700, 5050, and 5515.

According to the Author

"If California wishes to fulfill important environmental goals like 30x30, it must 'cut the green tape' and streamline its habitat restoration permitting processes. […] [This bill] accomplishes this by allowing habitat restoration projects that have already acquired a 'Restoration Management Permit' (RMP) to proceed without acquiring a "Lake and Streambed Alteration Agreement" (LSAA)."

Arguments in Support

Sustainable Conservation writes in support, stating that this bill will enable DFW to "more quickly and efficiently evaluate the potential environmental impacts of restoration projects, while preserving necessary state oversight." Trout Unlimited also writes in support, stating that this bill "would accelerate the approval process for eligible restoration projects by eliminating permitting redundancies between the RMP and LSAA programs, thereby saving both time and scarce restoration dollars without sacrificing environmental protection."

Arguments in Opposition

No opposition on file.

FISCAL COMMENTS

According to the Assembly Appropriations Committee:

1. Costs of an unknown amount, in excess of $150,000, for DFW to review notifications and determine if authorized activities are subject to the exemption in this bill (special fund). These costs would likely be covered by the LSAA fees paid by entities seeking the exemption.
2. The State Water Resources Control Board anticipates minor and absorbable cost pressures (Waste Discharge Permit Fund), resulting from increased applications for coverage under the statewide restoration general order and the small habitat restoration general order.

VOTES

ASM WATER, PARKS, AND WILDLIFE: 14-0-1

YES: Bauer-Kahan, Mathis, Alanis, Bennett, Megan Dahle, Davies, Friedman, Hart, Kalra, Pellerin, Blanca Rubio, Schiavo, Villapudua, Weber

ABS, ABST OR NV: Ward

ASM APPROPRIATIONS: 15-0-1

YES: Holden, Megan Dahle, Bryan, Calderon, Wendy Carrillo, Dixon, Mike Fong, Hart, Lowenthal, Mathis, Papan, Pellerin, Sanchez, Weber, Ortega

ABS, ABST OR NV: Robert Rivas

UPDATED

VERSION: April 7, 2023

CONSULTANT: Keith Cialino / W., P., & W. / (916) 319-2096 FN: 0000503

Date of Hearing: May 17, 2023

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Chris Holden, Chair

ABPCA Bill Id:AB 1581

Author:(Kalra) – As Amended Ver:April 7, 2023

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

SUMMARY:

This bill exempts from the requirement to obtain a lake and streambed alteration agreement (LSAA) from the Department of Fish and Wildlife (DFW) specified entities that are authorized to import, export, take, or possess any endangered, threatened, or candidate species for scientific, educational, or management purposes under the California Endangered Species Act (CESA), but requires the same notification requirements and payment of fees as those already in place under the LSAA process as well as the submission of a copy of proposed environmental protection measures authorized by certain permits. This bill further requires DFW to notify the entity in writing whether the exemption applies within 60 days from the date the notification is complete and the fee has been paid.

FISCAL EFFECT:

1) Costs of an unknown amount, in excess of $150,000, for DFW to review notifications and determine if authorized activities are subject to the exemption in this bill (special fund). These costs would likely be covered by the LSAA fees paid by entities seeking the exemption.

2) The State Water Resources Control Board (State Water Board) anticipates minor and absorbable cost pressures (Waste Discharge Permit Fund), resulting from increased applications for coverage under the statewide restoration general order and the small habitat restoration general order.

COMMENTS:

1) Purpose. According to the author:

If California wishes to fulfill important environmental goals like 30x30, it must ‘cut the green tape’ and streamline its habitat restoration permitting processes. […] [This bill] accomplishes this by allowing habitat restoration projects that have already acquired a ‘Restoration Management Permit’ (RMP) to proceed without acquiring a “Lake and Streambed Alteration Agreement” (LSAA).

2) Background.

LSAA. An LSAA is a type of permit that contains any necessary provisions to mitigate the planned activity’s potentially adverse consequences. The LSAA program requires any person, state or local governmental agency, or public utility to notify DFW and receive approval prior to beginning any activity that may divert or obstruct the natural flow of, change the bed, channel, or bank of, use material from, or deposit or dispose of material into any river, stream, or lake. An applicant is required to pay a fee to DFW before the department will process their notification. Once an applicant pays the fee, DFW determines if the project may substantially and adversely affect fish or wildlife resources. DFW requires an LSAA when it determines the activity will substantially alter a river, stream, or lake, or may substantially adversely affect existing fish or wildlife resources.

Before issuing an LSAA, DFW typically must comply with the California Environmental Quality Act (CEQA). However, some recent executive orders relating to drought and groundwater recharge have exempted some projects from LSAAs or CEQA review of LSAAs. There is also a statutory CEQA exemption for restoration projects in effect until January 1, 2025, for fish and wildlife restoration projects that meet certain requirements.

LSAA Exemptions. There are currently LSAA exemptions for several emergency purposes and for activities authorized by a license for cannabis cultivation. The structure of this bill is similar to the cannabis exemption, in that entities are still required to provide notification to DFW and the payment of fees associated with an LSAA. Under this bill, the entity must also submit a copy of proposed environmental protection measures authorized by other agencies’ programmatic habitat restoration permits and guidance.

According to the Water, Parks, and Wildlife Committee analysis of this bill, the exemption in this bill is intended for projects that receive a Restoration Management Permit (RMP) from DFW. The RMP is not codified in statute, so this bill does not refer to it specifically. The RMP was developed under the Cutting the Green Tape process to address specific constraints restoration entities face when implementing restoration projects where protected species are present in project work areas. The RMP consolidates take authorizations that voluntary habitat restoration projects may need to obtain into a single streamlined permit.

Cutting the Green Tape. The Newsom Administration has identified “Cutting the Green Tape” as a priority initiative to increase the pace and scale of ecological restoration, conservation, climate adaptation, and stewardship. Within the California Natural Resources Agency (CNRA), the effort is focused on improving regulatory processes and policies so that ecological restoration and stewardship can occur more quickly, simply, and cost-effectively. According to DFW, during fiscal year 2021-22, DFW funded, permitted, or assisted with environmental review exemptions for over 146 projects, 134,515 acres, and 103 stream miles, saving an estimated $1.6 million with an average processing time of 70 days.

3) Related Legislation. AB 830 (Soria) exempts the temporary operation of existing infrastructure or temporary pumps being used to divert flood stage and monitor stage flows to beneficial groundwater recharge necessary to protect downstream life and property from the requirements of the LSAA process. AB 830 is pending in this committee.

AB 1024 (Aguiar-Curry) exempts entities that hold a registration for small domestic, small irrigation, or livestock stockpond water use from the requirement to enter into an LSAA. AB 1024 is pending in this committee.

Analysis Prepared by: Nikita Koraddi / APPR. / (916) 319-2081

Date of Hearing: April 18, 2023

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Rebecca Bauer-Kahan, Chair

ABPCA Bill Id:AB 1581 (

Author:Kalra) – As Amended Ver:April 7, 2023

SUBJECT: Diversion or obstruction of rivers, streams, or lakes: lake or streambed alteration agreement

SUMMARY: Exempts specified entities from the requirement to obtain a lake and streambed alteration agreement (LSAA) from the Department of Fish and Wildlife (DFW) for activities authorized pursuant to a specific take authorization provision under the California Endangered Species Act (CESA), but requires the same notification requirements and payment of fees as those already in place under the LSAA process. Specifically, this bill:

1. Exempts certain individuals, public agencies, universities, zoological gardens, and scientific or educational institutions authorized to import, export, take, or possess any endangered species, threatened species, or candidate species for scientific, educational, or management purposes from the requirement to obtain an LSAA with DFW, if the entity submits all of the following:
   1. A written notification;
   2. Fee; and
   3. If applicable, a copy of proposed environmental protection measures authorized by other agencies’ programmatic habitat restoration permits, as specified.
2. Requires DFW to notify the entity in writing whether the exemption applies within 60 days from the date that the notification is complete and the fee has been paid.
3. Imposes a state-mandated local program because a violation of these provisions would be a crime, but specifies that no reimbursement is required.

EXISTING LAW:

1. Prohibits a person, a state or local governmental agency, or a public utility from substantially diverting or obstructing the natural flow of, or substantially changing or using any material from the bed, channel, or bank of, any river, stream, or lake, or depositing or disposing of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake, unless prescribed requirements are met, including written notification to DFW regarding the activity [Fish and Game Code (FGC) § 1600 et seq.]
2. Requires DFW to determine whether the activity may substantially adversely affect an existing fish and wildlife resource and, if so, to provide a draft LSAA to the entity within 60 days. Specifies that the entity has 30 days to contest or accept the draft LSAA. If contested, DFW must meet with the entity within 14 days of receiving the response to resolve the issues presented (FGC § 1603).
3. Exempts immediate emergency work necessary to protect life or property, immediate emergency repairs to public service facilities necessary to maintain a service as a result of a disaster in an area subject to gubernatorial emergency declaration, or emergency projects undertaken to maintain, repair, or restore an existing highway damaged as the result of natural disaster, from the need to obtain an LSAA (FGC § 1610).
4. Makes it unlawful for any entity to violate the above-mentioned provisions, and an entity that violates those provisions is also subject to a civil penalty of not more than $25,000 for each violation (FGC § 1615).

FISCAL EFFECT: Unknown. This bill is keyed fiscal.

COMMENTS:

1. Purpose of this bill. This bill exempts voluntary habitat restoration activities authorized pursuant to a specific take authorization provision under CESA from having to obtain an LSAA. According to the author, “if California wishes to fulfill important environmental goals like 30x30, it must ‘cut the green tape’ and streamline its habitat restoration permitting processes. […] [This bill] accomplishes this by allowing habitat restoration projects that have already acquired a ‘Restoration Management Permit’ (RMP) to proceed without acquiring a “Lake and Streambed Alteration Agreement” (LSAA).”
2. Background. The LSAA program requires any person, state or local governmental agency, or public utility to notify DFW and receive approval prior to beginning any activity that may do one or more of the following:
   

• Divert or obstruct the natural flow of any river, stream, or lake;
• Change the bed, channel, or bank of any river, stream, or lake;
• Use material from any river, stream, or lake; or
• Deposit or dispose of material into any river, stream, or lake.
  

The “lake and streambed alteration” statute begins at FGC § 1600. It contains the provisions relating to LSAAs that, when issued, determine the extent to which a planned activity within a stream or river may adversely affect fish or wildlife or habitat and what off-setting mitigation may be required. In the absence of an LSAA, an entity may not substantially divert or obstruct the natural flow of a stream or deposit or dispose of material. Existing law requires the entity to notify DFW, which triggers the negotiation of the standards that may apply to the request. At that point, the entity and DFW enter into an LSAA that contains any necessary provisions to mitigate the planned activity’s potentially adverse consequences.

Before issuing an LSAA, DFW typically must comply with the California Environmental Quality Act (CEQA). However, some recent executive orders relating to drought and groundwater recharge (N-7-22, N-3-23, N-4-23) have exempted some projects from LSAAs or CEQA review of LSAAs. There is also a statutory CEQA exemption for restoration projects in effect until January 1, 2025, for fish and wildlife restoration projects that meet certain requirements.

The LSAA law was enacted first in 1970, reenacted in 1976, and amended in 2003, but the purpose of the law has never changed. The law declares “the protection and conservation of the fish and wildlife resources of this state are of utmost public interest. Fish and wildlife are the property of the people and provide a major contribution to the economy of the state, as well as providing a significant part of the people’s food supply; therefore their conservation is a proper responsibility of the state.”

Under historical practice, an LSAA could be required for an activity adversely affecting a river, stream, or lake, including those that are episodic and dry for periods of time. An LSAA may also apply to work undertaken within the floodplain of a body of water.

New exemption. There are currently LSAA exemptions for several emergency purposes and for activities authorized by a license for cannabis cultivation. The structure of this bill is similar to the cannabis exemption, in that entities are still required to provide notification to DFW and the payment of fees associated with an LSAA. Under this bill, the entity must also submit a copy of proposed environmental protection measures authorized by other agencies’ programmatic habitat restoration permits and guidance.

This bill identifies several existing programmatic habitat restoration permits that are commonly used for restoration projects. These include, but are not limited to the following:

(i) State Water Resources Control Board Statewide Restoration General Order – Order for Clean Water Act Section 401 Water Quality Certification and Waste Discharge Requirements for Restoration Projects Statewide – Order No. WQ 2022-0048-DWQ (August 16, 2022).^[1]

(ii) The federal Endangered Species Act Section 7(a)(2) Biological Opinion and Magnuson–Stevens Fishery Conservation and Management Act Essential Fish Habitat Response for the National Oceanic and Atmospheric Administration Restoration Center and United States Army Corps of Engineers’ Restoration Program for Northern California, Central Coastal California, South-Central and Southern California, and the Central Valley.^[2]

(iii) The United States Fish and Wildlife Service’s Programmatic Biological and Conference Opinion on the Statewide Programmatic Biological Assessment for Restoration: Multi-Agency Implementation of Aquatic, Riparian, Floodplain and Wetland Restoration Projects to Benefit Fish and Wildlife in California, FWS Reference: 2022-0005149-S7 (2022).^[3]

This new exemption is intended for projects that receive an RMP from DFW. The RMP is not codified in statute, so this bill does not refer to it specifically. The RMP was developed under the Cutting the Green Tape process to address specific constraints restoration entities face when implementing restoration projects where protected species are present in project work areas. The RMP consolidates take authorizations that voluntary habitat restoration projects may need to obtain into a single streamlined permit. The RMP can authorize state-defined take (hunt, pursue, capture, catch, or kill, or attempt to do so) of endangered, threatened, and candidate species pursuant to CESA as well as fully protected species pursuant to FGC §§ 3511, 4700, 5050, and 5515. The RMP’s CESA and fully protected species take authorizations do not require submittal of an application fee.

Cutting the Green Tape. The Newsom Administration has identified “Cutting the Green Tape” as a priority initiative to increase the pace and scale of ecological restoration, conservation, climate adaptation, and stewardship. Within the California Natural Resources Agency (CNRA), the effort is focused on improving regulatory processes and policies so that ecological restoration and stewardship can occur more quickly, simply, and cost-effectively. Cutting the Green Tape also supports and complements CNRA’s “30 by 30” initiative, a commitment to achieving the goal of conserving 30% of California’s lands and coastal waters by 2030.

During Fiscal Year 2021-2022, DFW funded, permitted, or assisted with environmental review exemptions for over 146 projects, 134,515 acres, and 103 stream miles saving an estimated $1,552,600 dollars with an average processing time of 70 days. The 146 restoration projects were spread across six categories of project or permitting types as follows: RMPs, restoration consistency determinations, Habitat Restoration and Enhancement Act projects, LSAAs, statutory exempt restoration projects, and restoration grants. More details can be found in DFW’s report to the Legislature.^[4]

1. Policy considerations. LSAAs apply to all fish and wildlife species, not just fully protected species or those listed under CESA. The RMP does not currently incorporate take coverage for common species and species of special concern, but DFW is actively pursuing options to incorporate this take authority into the RMP. This bill assumes that avoidance and mitigation provisions in programmatic habitat restoration permits - which are often specific to the listed species covered by the permit - are adequate to prevent or mitigate impacts to other fish and wildlife species. While the outcomes of voluntary habitat restoration projects should benefit multiple species, the activities associated with the implementation of habitat restoration projects can have impacts that LSAAs are intended to prevent and mitigate. This concern is partially ameliorated by the continued requirement of notification to DFW of applicable projects, and the affirmative decision by DFW that the exemption under this bill applies to the project.
   
   Under this bill, DFW has 60 days to notify the entity in writing whether the exemption applies. If the exemption does not apply, the entity will potentially have lost up to 60 days wherein the existing LSAA process was not occurring. Theoretically, there may be time savings if an LSAA is needed because the entity has already submitted the required LSAA notification and fee, but that is not guaranteed. The author may wish to consider clarifying this bill by specifying whether the existing statutory timelines apply or adding new statutory deadlines for the approval of an LSAA if the exemption is found to not apply.
   
2. Arguments in support. Sustainable Conservation writes in support, stating that this bill will enable DFW to “more quickly and efficiently evaluate the potential environmental impacts of restoration projects, while preserving necessary state oversight.” Trout Unlimited also writes in support, stating that this bill “would accelerate the approval process for eligible restoration projects by eliminating permitting redundancies between the RMP and LSAA programs, thereby saving both time and scarce restoration dollars without sacrificing environmental protection.”
   
3. Related legislation. AB 830 (Soria) of the current legislative session exempts the temporary operation of existing infrastructure or temporary pumps being used to divert flood stage and monitor stage flows to beneficial groundwater recharge necessary to protect downstream life and property from the requirements of the LSAA process. AB 830 is set for a hearing in the Assembly Water, Parks, and Wildlife Committee.
   
   AB 1024 (Aguiar-Curry) of the current legislative session exempts entities that hold a registration for small domestic, small irrigation, or livestock stockpond water use from the requirement to enter into an LSAA. AB 1024 is set for a hearing in the Assembly Water, Parks, and Wildlife Committee.
   
   SB 716 (McGuire), Chapter 735, Statutes of 2021, extends the Habitat Restoration and Enhancement Act (HREA) sunset date from January 1, 2022, to January 1, 2027, among other provisions.
   
   AB 2193 (Gordon), Chapter 604, Statutes of 2014, establishes the HREA, a permitting process with DFW for landowners, state and local governments, and conservation organizations seeking to implement small-scale, voluntary habitat restoration projects. Restoration and enhancement projects approved under HREA by DFW do not require additional permits from DFW, such as an LSAA or a CESA take permit.
   

REGISTERED SUPPORT / OPPOSITION:

Support

Sustainable Conservation (Sponsor)
Trout Unlimited

Opposition

None on file

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

1. https://www.waterboards.ca.gov/water_issues/programs/cwa401/generalorders.html#yr_2022 ↑

2. Northern California: https://repository.library.noaa.gov/view/noaa/41674; Santa Rosa: https://suscon.org/wp-content/uploads/2018/03/2016-Santa-Rosa-NOAA-RC-Corps-programmatic-BO.pdf; Southern California: https://suscon.org/wp-content/uploads/2017/05/2015-NOAA-RC-SoCal-SCentral-Programmatic-BO.pdf; Central Valley: https://suscon.org/wp-content/uploads/2018/09/2018-08-31-NOAA-Restoration-Centers-Central-Valley-BiOp.pdf ↑

3. https://www.fws.gov/media/2022083120220005149-s7-statewide-restoration-final-pbo-appendices ↑

4. Department of Fish and Wildlife. (October 2022). Cutting the Green Tape Report to the Legislature, FY 21-22. Accessed April 10, 2023 at https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentID=211177&inline ↑