BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 2001


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          Date of Hearing:  March 29, 2016


                  ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE


                                 Marc Levine, Chair


          AB 2001  
          (Mathis) - As Amended March 10, 2016


          SUBJECT:  Fish:  fully protected species:  taking or possession


          SUMMARY:  Authorizes the take of a fully protected fish for  
          efforts to recover the species.  Specifically, this bill:


          1)Amends the statute governing fully protected fish species to  
            clarify that the Department of Fish and Wildlife (DFW) may  
            authorize the taking of a fully protected fish for purpose of  
            efforts to recover the species.


          2)Clarifies that efforts to recover a species for which take  
            could be authorized do not include an action taken as part of  
            specified mitigation for a project.


          EXISTING LAW:


          1)Prohibits the taking or possession of a fully protected fish  
            except as specified.  The species that are classified as fully  
            protected fish include but are not limited to the Owens River  
            pupfish.









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          2)Permits DFW to authorize the taking of a fully protected fish  
            for scientific research, including efforts to recover fully  
            protected, threatened, or endangered species.  Requires DFW  
            before authorizing the take of a fully protected fish to make  
            an effort to notify all affected and interested parties, to  
            publish the notice in the California Regulatory Notice  
            Register, and to provide 30 days after publication for  
            submittal of comments.


          3)Authorizes DFW to authorize the taking of a fully protected  
            fish species whose conservation and management is provided for  
            in a natural community conservation plan (NCCP) approved by  
            DFW.  


          4)Authorizes DFW to authorize incidental take of the fully  
            protected unarmored threespine stickleback fish, and the fully  
            protected limestone salamander, under certain limited  
            circumstances, provided specified criteria and standards are  
            met for minimization, mitigation and conservation. 


          5)Provides for the listing of species as threatened or  
            endangered under federal and state endangered species acts.   
            The DFW may issue permits for incidental take of listed  
            species, if specified conditions are met, including  
            mitigation, minimization, and adaptive management  
            requirements.  


          FISCAL EFFECT:  Unknown


          COMMENTS:  The author has introduced this bill to allow the DFW  
          to permit the removal and relocation of endangered Owens River  
          pupfish for the purpose of population recovery of the species.









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          1)Author's Statement:  The author indicates this bill will  
            authorize actions necessary to help ensure the survival of  
            endangered species, such as the pupfish, by authorizing their  
            relocation when existing habitats do not support the species.   
            The author asserts that California law should promote species  
            revitalization rather than continuing to allow excessive red  
            tape to force their demise.


          2)Background: The Owens River pupfish, Cyrpinoden radiosus, also  
            known as the Owens pupfish, is a rare species of pupfish  
            endemic to California and found only in the Owens Valley  
            portion of the Owens River, in Mono and Inyo counties.  
            Historically, Owens pupfish were widespread along the Owens  
            River, occurring in clear waters of springs, sloughs,  
            irrigation ditches, swamps, and flooded pastures from Fish  
            Slough in Mono County south to Lone Pine in Inyo County.  As  
            of 2009 the U.S Fish and Wildlife Service reported that there  
            were only four surviving populations of Owens pupfish.  The  
            species is listed as endangered under both the federal  
            Endangered Species Act and the California Endangered Species  
            Act (CESA), and is also protected under California law as a  
            fully protected fish species.  



          In the early 1900s, the Los Angeles Department of Water and  
            Power (LADWP) constructed an aqueduct to carry water from the  
            Owens River to Los Angeles.  A second aqueduct was completed  
            in 1970 which diverted more water from the Owens Valley.  Both  
            surface and ground water were diverted to the aqueducts.  Over  
            time water diversion projects eliminated almost all the  
            habitat of the Owens pupfish. Owens pupfish were believed to  
            be extinct from 1942 until 1964 when a single population of  
            approximately 200 individuals was rediscovered in Fish Slough.  
            When federally listed in 1967, the Owens pupfish was still  
            limited to this single population.   The DFW has established 6  
            populations since 1969; however, only four populations of  








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            Owens pupfish exist today.   Currently, all four populations  
            of Owens pupfish are threatened by loss of habitat due to  
            cattail encroachment.  DFW personnel regularly control cattail  
            encroachment at all Owens pupfish population sites, to  
            maintain open water.  Non-native predators such as bullfrogs,  
            bass, trout, bluegill and crayfish are also a serious threat  
            to the Owens pupfish.



            The Bishop Paiute Tribe has a long history with the Owens  
            pupfish.  Historically, the fish was a staple food item for  
            the local Paiute who caught the fish in the hundreds and dried  
            and stored them.  The tribe has been working for several years  
            to obtain permits to relocate some of the endangered pupfish  
            to conservation ponds built on the reservation's Native Fish  
            Refuge.  In 2014 the U.S. Fish and Wildlife Service proposed  
            to grant the tribe a permit under a safe harbor agreement to  
            relocate fish from Fish Slough to the ponds as part of the  
            tribe's efforts to contribute toward recovery of the species.   
            A safe harbor agreement is a voluntary agreement whereby the  
            U.S. Fish and Wildlife Service, in exchange for actions that  
            contribute to the recovery of a listed species on non-federal  
            lands, provides assurances that if the parties to the  
            agreement fulfill the conditions of the agreement, additional  
            management activities will not be required.  At the end of the  
            agreement period, participants may also return the property to  
            baseline conditions.  The safe harbor agreement, however, was  
            put on hold due to concerns raised by neighboring landowners  
            that they might face liability under California's fully  
            protected species statute.





            California also has a safe harbor statute (Fish and Game Code  
            Section 2089.2).  However, while DFW under current law may  
            enter into safe harbor agreements and issue incidental take  








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            permits for species protected under CESA, subject to the  
            mitigation and other requirements of CESA, the Fully Protected  
            Species statutes do not allow for issuance of incidental take  
            permits, except for scientific purposes.





            The status of the Owens pupfish as a fully protected species  
            has also come up in other contexts.  The U.S. Fish and  
            Wildlife Service recently released a draft Habitat  
            Conservation Plan (HCP) for the LADWP that would provide  
            incidental take coverage for 10 years, allowing take under  
            federal law for 7 species, including the Owens pupfish.   
            Activities covered by the HCP include water gathering and  
            distribution, power production and transmission, livestock  
            grazing, and fire management.  The project area includes about  
            314,000 acres of land in Inyo and Mono Counties.  Public  
            comments on the draft HCP were extended through January 5,  
            2016.





            The draft HCP indicates, in relevant part (page 38) that LADWP  
            could greatly reduce the threat of extinction for fish species  
            covered by the HCP by allowing establishment of additional  
            populations and maintaining habitat for these populations at  
            various locations on city-owned lands.  The HCP indicates that  
            establishing additional populations and maintenance of habitat  
            are essential for the long term persistence of the Owens  
            pupfish and other species covered by the HCP.  Before  
            establishing new populations (including releases into  
            historically occupied habitats) of covered fish species on  
            city lands, LADWP requires regulatory assurances that they  
            will be able to manage waterways for continued water gathering  
            and distribution activities and, if necessary, can return  








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            sites to baseline conditions.  The U.S. Fish and Wildlife  
            Service can offer this type of assurance for recovery projects  
            for covered fish species through Safe Harbor Agreements and  
            issuance of Enhancement for Survival Permits which will be  
            developed alongside the HCP.  Currently, at the state level,  
            DFW can offer this type of assurance to LADWP through a safe  
            harbor agreement for some covered species, but for Owens  
            pupfish and other fully protected species, DFW can only  
            provide assurances through the NCCP process, which LADWP is  
            not electing to pursue at this time because of regulatory  
            constraints.  However, the Owens pupfish are included in the  
            draft HCP with the intent that should conditions change in the  
            future that allow DFW to offer regulatory assurances for these  
            species, the information in the HCP may meet or facilitate  
            these regulatory needs, and be used to speed up the adoption  
            process.





            While the author has introduced this bill to assist Owens  
            pupfish recovery efforts of the Bishop Piaute Tribe, this bill  
            is not limited to tribal activities, or to the Owens pupfish.   
            It is, however, limited to recovery projects and does not  
            include actions taken as part of mitigation for a project.      
             


               
          3)Prior and related legislation:  AB 353 (Lackey), Chapter 620,  
            Statutes of 2015, authorized DFW to authorize take of a fully  
            protected fish species known as the unarmored threespine  
            stickleback resulting from a habitat restoration project on  
            Bouquet Creek if specified conditions are met, including CESA  
            requirements for minimization and mitigation, necessary  
            measures to satisfy a conservation standard for recovery, and  
            an adaptive management process that substantially contributes  
            to the long-term conservation of the species.








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          AB 1973 (Olsen), Chapter 121, Statutes of 2012, authorized DFW  
            to authorize incidental take of the limestone salamander, a  
            fully protected amphibian species, resulting from impacts  
            attributable to a highway restoration project in Mariposa  
            County known as the Ferguson Slide Permanent Restoration  
            Project, provided specified conditions are met, including but  
            not limited to, adoption of specific avoidance and mitigation  
            measures, CESA requirements for minimization and mitigation,  
            necessary measures to satisfy a conservation standard for  
            recovery, and an adaptive management process.
            AB 1845 (Dahle) of this Session proposes to authorize DFW to  
            authorize take of Rough Sculpin, another fully protected fish  
            species, resulting from impacts attributable to repairing the  
            Spring Creek Bridge in Shasta County if certain conditions are  
            met. 


            AB 2488 (Dababneh) of this Session would authorize the DFW to  
            authorize incidental take of the unarmored threespine  
            stickleback, a fully protected fish species, under CESA,  
            attributable to operations of the Metropolitan Water District  
            of Southern California's Foothill Feeder water supply  
            facility, as specified.  AB 2488 is also pending in this  
            committee.  


          4)Support Arguments:  None received.


          5)Opposition Arguments:   None received.


          REGISTERED SUPPORT / OPPOSITION:











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          Support


          None on file.




          Opposition


          None on file.




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