BILL NUMBER: AB 1961 CHAPTERED
BILL TEXT
CHAPTER 541
FILED WITH SECRETARY OF STATE SEPTEMBER 25, 2012
APPROVED BY GOVERNOR SEPTEMBER 25, 2012
PASSED THE SENATE AUGUST 22, 2012
PASSED THE ASSEMBLY AUGUST 27, 2012
AMENDED IN SENATE AUGUST 21, 2012
AMENDED IN SENATE JUNE 19, 2012
AMENDED IN ASSEMBLY MAY 25, 2012
AMENDED IN ASSEMBLY APRIL 9, 2012
INTRODUCED BY Assembly Member Huffman
(Coauthors: Assembly Members Allen and Chesbro)
FEBRUARY 23, 2012
An act to add and repeal Chapter 9 (commencing with Section 6950)
of Part 1 of Division 6 of the Fish and Game Code, relating to fish,
and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 1961, Huffman. Coho salmon: habitat.
Existing law requires the Department of Fish and Game to develop
and implement a recovery strategy pilot program for the coho salmon
and repeals that authority on January 1, 2014, but requires any
recovery strategy that has been approved or implemented prior to that
date to remain in effect.
Existing law also establishes the Salmon, Steelhead Trout, and
Anadromous Fisheries Program Act to protect and increase the
naturally spawning salmon, steelhead trout, and anadromous, as
defined, fishery resources of the state.
This bill, until January 1, 2018, would enact the Coho Salmon
Habitat Enhancement Leading to Preservation Act (Coho HELP Act) and
require the Director of Fish and Game to approve a coho salmon
habitat enhancement project, as defined, if specified conditions are
met as determined by the director, as prescribed. The act would
create the Coho Salmon Recovery Account within the Fish and Game
Preservation Fund and authorize the department to enter into an
agreement to accept funds to achieve the purposes of the Coho HELP
Act and deposit those funds into that account. The act would
authorize the department to impose a schedule of fees for projects,
based on the cost of a project, sufficient to recover all reasonable
administrative and implementation costs of the department relating to
the project, but not to exceed fees adopted by the department for
standard lake or streambed alteration agreements for projects of
comparable cost. The act would require the department to deposit fee
revenues in the account. Moneys in the account would be available to
the department, upon appropriation, for the purposes of administering
and implementing the Coho HELP Act. The act would authorize the
department to adopt emergency regulations for the implementation of
the Coho HELP Act. The bill would appropriate $37,500 from the
Hatchery and Inland Fisheries Fund to the department to fund an
engineer position employed on a half-time basis for the remainder of
the 2012-13 fiscal year to review projects under the act.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The coho salmon (Oncorhynchus kisutch) is a fish native to
many northern California coastal streams and consists of two distinct
Evolutionary Significant Units (ESU), the Southern Oregon/Northern
California Coast (SONCC) and the Central California Coast (CCC) ESUs.
The historical range of the SONCC ESU includes coastal rivers and
tributaries in Del Norte, Siskiyou, Humboldt, Trinity, Mendocino, and
Lake Counties. The historical range for the CCC ESU includes coastal
rivers and tributaries in parts of Humboldt, Mendocino, Sonoma,
Napa, Marin, Solano, Contra Costa, San Francisco, Alameda, San Mateo,
Santa Clara, and Santa Cruz Counties.
(b) All coho salmon runs in California have declined dramatically
over the past 40 to 50 years. Population numbers, including hatchery
stocks, were estimated at 6 to 15 percent of 1940 levels in 2004.
Since 2004, populations in all monitored streams have continued to
decline with an estimated 1 percent remaining of the original
population. While a few coastal rivers such as the Russian River did
show an increase in population for 2011, it is not yet known whether
the increase is sustainable, and the species remains at critical risk
of extinction.
(c) Both the SONCC and the CCC ESUs are listed pursuant to the
federal Endangered Species Act of 1973 (16 U.S.C. Sec. 1531 et seq.)
and the California Endangered Species Act (Chapter 1.5 (commencing
with Section 2050) of Division 3). The populations south of the San
Francisco Bay are listed as endangered and considered to be virtually
extinct. The populations between San Francisco Bay and Punta Gorda
to the north are listed as endangered, and the populations from Punta
Gorda to the Oregon border are listed as threatened.
(d) California's salmon populations need freshwater habitat that
includes cold and clean water, appropriate water depth, quantity, and
flow velocities, upland and riparian vegetation to stabilize soil
and shade, clean gravel for spawning and egg rearing, large woody
debris to provide resting and hiding places, adequate food, and
varied channel forms.
(e) An urgency exists due to the extraordinarily small numbers of
coho salmon remaining in California. In order to prevent their
extinction from northern California waters, it is imperative that
habitat restoration efforts be expedited and increased as soon as
possible.
(f) Therefore, it is the intent of the Legislature in enacting
this policy that the department seek agreements and partnerships with
state and federal agencies to efficiently and effectively permit
habitat enhancement projects necessary to prevent the extinction of
coho salmon populations in California coastal watersheds and that the
department expedite and streamline the permitting and approval of
coho salmon habitat enhancement projects, including, in particular,
large woody debris restoration projects, in northern California
streams.
(g) By eliminating barriers to fish passage, stabilizing banks,
increasing stream channel complexity, and otherwise restoring and
enhancing habitat, these projects will result in a net benefit to
coho salmon and other species.
SEC. 2. Chapter 9 (commencing with Section 6950) is added to Part
1 of Division 6 of the Fish and Game Code, to read:
CHAPTER 9. COHO SALMON HABITAT ENHANCEMENT LEADING TO
PRESERVATION
6950. This chapter shall be known and may be cited as the Coho
Salmon Habitat Enhancement Leading to Preservation Act or Coho HELP
Act.
6952. As used in this chapter:
(a) "Account" means the Coho Salmon Recovery Account created in
subdivision (a) of Section 6954.
(b) "Coho salmon habitat enhancement project" or "project" means a
restoration project within a region described in an adopted state or
federal coho salmon recovery plan with the primary purpose of
accomplishing one or more of the following:
(1) Modification of existing water crossings for the purposes of
eliminating a barrier to fish passage. Modification includes the
removal of road crossings, replacement of culverts, or both.
(2) Restoration of eroded or denuded streambanks by utilizing
predominantly nonrock bioengineering practices and revegetating
stream corridors with native riparian species. Restoration shall be
focused on promoting tree establishment along the active channel and
on streambanks for the purposes of bank stabilization, bank
development, and live wood complexity.
(3) Wood placement that benefits naturally reproducing fish stocks
by creating or enhancing fish habitat, increasing stream complexity,
or both.
(c) "Coho salmon recovery plans" means the department's Recovery
Strategy for California Coho Salmon, the National Marine Fisheries
Service's Recovery Plan for the Evolutionary Significant Unit of
Central Coast Coho Salmon, the National Marine Fisheries Service's
Recovery Plan for the Southern Oregon/Northern California Coast
Evolutionary Significant Unit of Coho Salmon, or subsequently adopted
coho salmon recovery plans.
(d) "Fish passage guidelines" means the department's Coho Salmon
Stream Restoration Manual, the National Marine Fisheries Service,
Southwest Region, Guidelines for Salmonid Passage at Stream
Crossings, either of those documents as they may be subsequently
amended or updated, or salmonid fish passage project guidelines
subsequently adopted by the department, the National Marine Fisheries
Service, or both.
(e) "Project proponent" means a person, public agency, or
nonprofit organization seeking to implement a coho salmon habitat
enhancement project.
6953. (a) Notwithstanding any other provision of law, the
director shall approve a coho salmon habitat enhancement project if
the project will maintain existing levels of human health and safety
protection, including, but not limited to, flood protection, and
meets all of the following requirements:
(1) The project is consistent with fish passage guidelines and
coho salmon recovery plans.
(2) The primary project purpose is for voluntary restoration.
(3) The project is no larger than five acres or 500 linear feet in
size, measured by calculating the direct area of impact.
(4) Completion of all phases of the coho salmon habitat
enhancement project will not exceed five years.
(5) The project will not result in cumulative negative
environmental impacts that are significant when viewed in connection
with the effects of past, current, or probable future projects.
(b) The director's approval of a coho salmon habitat enhancement
project pursuant to subdivision (a) shall be in lieu of any other
permit, license, or other approval issued by the department,
including, but not limited to, those issued pursuant to Chapter 1.5
(commencing with Section 2050) of Division 3, Chapter 10 (commencing
with Section 1900) of Division 2, and Chapter 6 (commencing with
Section 1600) of Division 2.
(c) The director's approval of a coho salmon habitat enhancement
project pursuant to subdivision (a) shall constitute an action taken
by a regulatory agency, as authorized by state law, to ensure the
maintenance, restoration, or enhancement of a natural resource where
the regulatory process involves procedures for protection of the
environment.
(d) Within 60 days after the director receives a written request
to approve a coho salmon habitat enhancement project containing the
information required pursuant to subdivision (e), the director shall
determine whether substantial evidence exists that the coho salmon
habitat enhancement project is consistent with subdivision (a).
(e) A written request to approve a coho salmon habitat enhancement
project shall contain all of the following:
(1) The name, address, title, organization, telephone number, and
electronic mail address of the natural person or persons who will be
the main point of contact for the project proponent.
(2) A full description of the coho salmon habitat enhancement
project that includes the design criteria used for the project,
restoration or enhancement methods, an estimate of temporary
restoration or enhancement-related disturbance, project schedule, and
how the project will result in a net benefit to coho salmon and
other affected species.
(3) A map clearly identifying the project location and photographs
of the project site.
(4) An assessment of the project area that provides a description
of existing flora and fauna and the potential presence of sensitive
species or habitat.
(5) A description of environmental protection measures
incorporated into the project design, including, but not limited to,
measures to avoid and minimize impacts to water quality and
potentially present species protected by state law, so that no
potentially significant negative environmental impacts will result
from the project.
(6) Substantial evidence to support a conclusion that the project
meets the criteria set forth in this section. Substantial evidence
shall cite relevant design criteria and environmental protection
measures that are set forth in the fish passage guidelines and coho
salmon recovery plans.
(f) (1) If the director determines at any time that the project is
no longer consistent with subdivision (a), due to a material change
between the project as submitted and the project being implemented or
a change in environmental circumstances in the area of
implementation, the director shall notify the project proponent in
writing and project implementation shall be suspended or approval
pursuant to this chapter revoked. Written notice from the director
shall be delivered in person or by certified mail to the project
proponent and shall specify the reasons why ministerial approval of
the project was suspended or revoked. The approval for a project
shall not be revoked pursuant to this subdivision unless it has first
been suspended pursuant to this subdivision.
(2) Within 30 days of receipt of a notice of suspension, the
project proponent may file an objection with the director. Any
objection shall be in writing and state the reasons why the project
proponent objects to the suspension.
(3) The director shall revoke approval or lift the suspension of
project implementation within 30 days after the end of the objection
period in paragraph (2).
6954. (a) The Coho Salmon Recovery Account is hereby created in
the Fish and Game Preservation Fund.
(b) The department may enter into an agreement to accept funds
from any public agency, person, business entity, or organization to
achieve the purposes of this chapter. The department shall deposit
any funds so received in the account. The funds received shall
supplement existing resources for projects and programs that enhance
the recovery of coho salmon.
(c) The department may impose a schedule of fees for projects,
based on the cost of a project, sufficient to recover all reasonable
administrative and implementation costs of the department relating to
the project, but not to exceed fees adopted by the department
pursuant to Chapter 6 (commencing with Section 1600) of Division 2
for standard lake or streambed alteration agreements for projects of
comparable cost. The department shall deposit fee revenues in the
account.
(d) Moneys in the account shall be available to the department,
upon appropriation by the Legislature, for the purposes of
administering and implementing this chapter.
6955. The department may adopt emergency regulations for the
implementation of this chapter. Emergency regulations adopted
pursuant to this section, any amendment thereto, or subsequent
adjustments to the regulations, shall be adopted by the department in
accordance with Chapter 3.5 (commencing with Section 11340) of Part
1 of Division 3 of Title 2 of the Government Code. The adoption of
these regulations is an emergency and shall be considered by the
Office of Administrative Law as necessary for the immediate
preservation of the public peace, health, safety, and general
welfare. Notwithstanding Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code, any
emergency regulations adopted by the department shall remain in
effect until revised by the department.
6956. This chapter shall remain in effect only until January 1,
2018, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 3. The sum of thirty-seven thousand five hundred dollars
($37,500) is hereby appropriated from the Hatchery and Inland
Fisheries Fund established in Section 13007 of the Fish and Game Code
to the Department of Fish and Game to fund an engineer position
employed on a half-time basis for the remainder of the 2012-13 fiscal
year due to the urgent need to enhance the early review of projects
under the Coho Salmon Habitat Enhancement Leading to Preservation Act
(Chapter 9 (commencing with Section 6950) of Part 1 of Division 6 of
the Fish and Game Code).