Amended  IN  Senate  August 23, 2024
Amended  IN  Senate  August 15, 2024
Amended  IN  Senate  June 27, 2024
Amended  IN  Senate  June 06, 2024
Amended  IN  Assembly  April 07, 2023
Amended  IN  Assembly  March 16, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 1581

Introduced by Assembly Members Kalra and Mathis

February 17, 2023

An act to amend Sections 2089.4 and 2089.22 of, and to add and repeal Chapter 6.7 (commencing with Section 1670) of Division 2 of of, the Fish and Game Code, relating to fish and wildlife.


LEGISLATIVE COUNSEL'S DIGEST


AB 1581, as amended, Kalra. The Conservation: Restoration Management Permit Act. Act and California State Safe Harbor Agreement Program Act.

Existing

(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 department’s 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.

Under

(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 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 bill’s 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.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) As set forth in Section 71450 of the Public Resources Code, it is the goal of the state to conserve at least 30 percent of California’s lands and coastal waters by 2030, which is defined as the 30x30 goal.
(2) In the Pathways to 30x30 Report issued by the Natural Resources Agency on April 22, 2022, which is referenced in Sections 71450 and 71451 of the Public Resources Code, a “30x30 Conservation Area” is defined as “land and coastal water areas that are durably protected and managed to sustain functional ecosystems, both intact and restored, and the diversity of life that they support.”
(3) Consistent with the 30x30 goal and Pathway 6 in the Pathways to 30x30 Report, increasing the pace and scale of habitat restoration and related nature-based solutions are essential components of responding to and mitigating the impacts of climate change, species decline, and loss of biodiversity.
(4) The state can generate additional ecological, economic, and social benefits by offering efficient permitting processes to accelerate implementation of climate resilient, nature-based environmentally beneficial projects that contribute to recovery of the state’s biodiversity.
(5) Aligning the Department of Fish and Wildlife’s permit requirements for restoration projects with existing efficient permitting mechanisms developed by local, state, and federal agencies can accelerate restoration projects and save government grant funds and staff resources.
(6) Currently, a restoration project may need up to five separate permits from the department.
(7) Requiring multiple, separate permits from the department for a restoration project can increase costs for restoration project proponents, increase the department’s permitting workload, and delay beneficial restoration and recovery outcomes.
(b) It is 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.

SEC. 2.

 Chapter 6.7 (commencing with Section 1670) is added to Division 2 of the Fish and Game Code, to read:
CHAPTER  6.7. Restoration Management Permit Act

1670.
 This chapter shall be known as, and may be cited as, the Restoration Management Permit Act.

1671.
 As used in this chapter:

(a)

(a) “Baseline conditions” means existing native fish, wildlife, or plant population sizes, and the extent and quality of native fish, wildlife, or plant habitat in the area that would be affected by a qualifying restoration project. Fish, wildlife, plant, or habitat restoration activities required to satisfy avoidance, minimization, or mitigation requirements, or any combination of those requirements, for regulatory permits or approvals, regulatory enforcement actions or settlements, court orders, or other enforceable legal obligations shall be considered part of the baseline conditions, and those activities shall not count toward a substantial net benefit.
(b) “Management” means an activity, such as restoration of native fish, wildlife, plants, or their habitat and propagation, that will benefit, aid the conservation of, and assist in the recovery of a native fish, wildlife, or plant species.

(b)

(c) “Propagation” means activities that help sustain or increase native fish, wildlife, or plant populations for scientific, conservation, management, or educational purposes.

(c)

(d) (1) “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 a long-term substantial net benefit to any one or more of the following, as determined by the department:
(A) Native fish.
(B) Native wildlife.
(C) Native plants.
(D) The habitat of native fish, native wildlife, or native plants.
(2) A qualifying restoration project may also have secondary or incidental benefits, including, but not limited to, flood risk reduction, recreation, or groundwater recharge.
(e) “Substantial net benefit” means a substantial, cumulative benefit to native fish, wildlife, plants, or their habitat, or any combination thereof, above baseline conditions that the department reasonably expects to result from a qualifying restoration project. In determining whether the department reasonably expects a qualifying restoration project to result in a substantial net benefit, the department shall consider the duration of the qualifying restoration project, all impacts on native fish, wildlife, plants, or their habitat, or any combination thereof, from the qualifying restoration project, and any other information the department determines to be relevant. A substantial net benefit shall assist either directly or indirectly in the recovery of native fish, wildlife, plants, or their habitat, or any combination thereof.

1672.
 (a) The department may issue a restoration management permit to authorize 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 Section 1602, all pursuant to terms and conditions determined by the department.
(b) The department may authorize the take, possession, import, or export of any endangered species, threatened species, or candidate species designated pursuant to Chapter 1.5 (commencing with Section 2050) of Division 3 for management or propagation purposes, including scientific or educational purposes related to management or propagation, through a restoration management permit for a qualifying restoration project.
(c) The department may authorize the take, possession, import, or export of any fully protected bird, mammal, reptile, amphibian, or fish designated pursuant to Section 3511, 4700, 5050, or 5515 for management or propagation purposes, including scientific or educational purposes related to management or propagation, through a restoration management permit for a qualifying restoration project. The take, possession, import, or export of any fully protected bird, mammal, reptile, amphibian, or fish that is authorized through a restoration management permit for a qualifying restoration project shall not be subject to Section 3511, 4700, 5050, or 5515.
(d) The department may authorize the take, possession, import, or export of any plant species designated as rare pursuant to Chapter 10 (commencing with Section 1900) of Division 2 for management or propagation purposes, including scientific or educational purposes related to management or propagation, through a restoration management permit for a qualifying restoration project.
(e) The department may authorize the take, possession, import, or export of any fish, amphibian, reptile, mammal, bird, or the nests or eggs thereof, or any other form of plant or animal life not subject to subdivisions (b) through (d), inclusive, for management or propagation purposes, including scientific or educational purposes related to management or propagation, through a restoration management permit for a qualifying restoration project.
(f) If a qualifying restoration project includes 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 and the department determines such the activity may substantially adversely affect an existing fish or wildlife resource, the department may authorize such those activities through a restoration management permit. The department shall include reasonable measures necessary to protect that resource in the restoration management permit for the qualifying restoration project.

1673.
 (a) The department may develop a permit application for restoration management permits. When applying for a restoration management permit, an applicant may propose protective measures contained within existing local, state, or federal agency authorizations for the applicant’s project or related documents to assist the department with developing restoration management permits that maximize consistency with other agency authorizations to the extent practicable.
(b) An application for a restoration management permit shall include all of the following:
(1) The appropriate application fee, if any, not to exceed the department’s reasonable costs, as determined by the department.

(1)

(2) The full name, mailing address, email address, and telephone number of the applicant. If the applicant is a corporation, firm, partnership, association, institution, or public or private agency, the name and address of the applicant, in addition to the name and address of the person responsible for the project.

(2)

(3) The project name and location, including latitude and longitude centroid in decimal degrees. degrees, and a project map.
(4) The estimated or desired project start and end dates.

(3)

(5) A detailed description of the project activities. activities and desired outcomes, including, but not limited to, restoration plans and drawings.

(4)

(6) A detailed description of the area where the project will be carried out, including the project size, habitat types, and biological setting.

(5)

(7) A description of the department authorization or authorizations described in Section 1672 that the applicant is seeking for the project.
(8) A detailed description of baseline conditions for all areas that may be affected by the project.

(6)

(9) A detailed description of how the project satisfies the definition of qualifying restoration project set forth in subdivision (c) of Section 1671. 1671, including a detailed description of the expected benefit to native fish, wildlife, plants, or their habitat, or any combination thereof, above baseline conditions.
(10) If the applicant is seeking one or more take authorizations pursuant to Section 1672, the applicant shall provide all of the following:
(A) A list of species for which the applicant is seeking one or more take authorizations.
(B) A detailed description of the types of species take, including pursue, catch, capture, or kill, and the mechanisms by which species take would occur.
(C) An estimate of the number of individuals that would be taken, based on population numbers, or a proxy estimate based on the amount of suitable habitat, for each species for which the applicant is seeking one or more take authorizations.
(D) Species protection measures proposed by the applicant to minimize the impacts of the potential take, including any measures required or expected to be required in other approvals or permits.
(11) If the applicant is seeking an authorization pursuant to Section 1672 for activities that would otherwise be subject to Section 1602, the applicant shall provide all of the following:
(A) A detailed description of anticipated temporary and permanent impacts to any affected river, stream, or lake.
(B) Proposed feasible measures to protect any river, stream, or lake and to minimize project impacts, including any measures required or expected to be required in other approvals or permits.
(12) A copy of any other federal, state, or local permit or agreement already issued for the project.
(13) Copies of any final documents prepared for the project pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code, including, but not limited to, environmental impact reports, mitigated negative declarations, negative declarations, notices of determination, and notices of exemption.

(7)

(14) Any other information the department determines to be necessary in the guidelines described in Section 1675. necessary.

1674.
 (a) The Restoration Management Permit Program Fund is hereby established in the State Treasury.
(b) The department may 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, not to exceed the department’s reasonable costs.
(c) Fees received pursuant to this section shall be deposited in the Restoration Management Permit Program Fund.

1675.
 (a) Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3 of Title 2 of the Government Code shall apply to the development, adoption, or amendment of guidelines, criteria, or permit applications any rules, instructions, or criteria pursuant to this chapter. Any guidelines, criteria, and permit applications chapter, but not to the development, adoption, or amendment of permit applications or guidance materials. All rules, instructions, criteria, permit applications, and guidance materials shall be posted on the department’s internet website.
(b) The department shall require appropriate species protection and management protection, management, monitoring, and reporting measures in each restoration management permit issued by the department.

1676.
 (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) On or before 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. The report shall be submitted in compliance with Section 9795 of the Government Code and 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 the implementation of this chapter helped to reduce permit processing times for restoration projects.
(5) Recommendations to improve the program.

1677.
 The department shall not issue a restoration management permit for the design, construction, operation, mitigation, or maintenance of isolated Delta conveyance facilities.

1678.
 This chapter shall remain in effect only until January 1, 2035, and as of that date is repealed.

SEC. 3.

 Section 2089.4 of the Fish and Game Code is amended to read:

2089.4.
 As used in this article, the following definitions apply:
(a) “Agreement” means a state safe harbor agreement approved by the department pursuant to this article. “Agreement” includes an agreement with an individual landowner and a programmatic agreement.
(b) “Baseline conditions” means the existing estimated population size, the extent and quality of habitat, or both population size and the extent and quality of habitat, for the species on the land to be enrolled in the agreement that sustain seasonal or permanent use by the covered species. Baseline conditions shall be determined by the department, in consultation with the applicant, and shall be based on the best available science and objective scientific methodologies. For purposes of establishing baseline conditions, a qualified person that is not employed by the department may conduct habitat surveys, if that person has appropriate species expertise and has been approved by the department.
(c) “Declining or vulnerable species” include candidate species, species proposed for listing as an endangered or threatened species pursuant to this chapter, or species that the department determines may, in the near future, be candidate species or proposed for listing as an endangered or threatened species pursuant to this chapter.
(d) “Department” means the Department of Fish and Wildlife, acting through its director or his or her their designee.
(e) “Landowner” means any person or nonstate nonstate, state, or federal entity or entities that lawfully hold any interest in land or water to which they are committing to implement the requirements of this article.
(f) “Management actions” means activities on the enrolled land or water that are reasonably expected by the department to provide a net benefit to the species or their habitat, or both.
(g) “Monitoring program” means a program established or approved by the department in accordance with subdivision (f) paragraph (6) of subdivision (a) of Section 2089.6.
(h) “Net conservation benefit” means the cumulative benefits of the management activities identified in the agreement that provide for an increase in a species’ population or the enhancement, restoration, or maintenance of covered species’ suitable habitats within the enrolled property. Net conservation benefit shall take into account the length of the agreement, any offsetting adverse effects attributable to the incidental taking allowed by the agreement, and other mutually agreed upon factors. Net conservation benefits shall be sufficient to contribute either directly or indirectly to the recovery of the covered species. These benefits include, but are not limited to, reducing fragmentation and increasing the connectivity of habitats, maintaining or increasing populations, enhancing and restoring habitats, and buffering protected areas.
(i) “Programmatic agreement” means a state safe harbor agreement issued to a governmental or nongovernmental program administrator. The program administrator for a programmatic agreement shall work with landowners and the department to implement the agreement. The program administrator and the department shall be responsible for ensuring compliance with the terms of the agreement.
(j) “Qualified person” means a person with species expertise who has been approved by the department.
(k) “Return to baseline” means, at the termination of an agreement, activities undertaken by the landowner to return the species population or extent or quality of habitat to baseline, excluding catastrophic events such as floods, unplanned fires, or earthquakes, and other factors mutually agreed upon before permit issuance and that are beyond the control of the landowner.

SEC. 4.

 Section 2089.22 of the Fish and Game Code is amended to read:

2089.22.
 (a) If a federal safe harbor agreement, or a federal candidate conservation agreement with assurances, has any of the following agreements have been approved pursuant to applicable provisions of federal law and the federal agreement contains species that are endangered, threatened, candidate, or declining or vulnerable species pursuant to this chapter, no further authorization or approval is necessary under this article for any person authorized by that federal agreement to take the species identified in and in accordance with the federal agreement, if that person and the department follow all of the procedures specified in Section 2080.1, except that the determination of consistency shall be made by the department based only on the issuance criteria contained in this article. article:
(1) A federal safe harbor agreement.
(2) A federal candidate conservation agreement with assurances.
(3) A federal conservation benefit agreement with an enhancement of survival permit in compliance with Part 17 (commencing with Section 17.1) of Subchapter B of Chapter 1 of Title 50 of the Code of Federal Regulations.
(b) Any authority pursuant to subdivision (a) to take species identified in a federal agreement shall terminate immediately upon the expiration or termination of the federal agreement.

SEC. 3.SEC. 5.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.