BILL ANALYSIS Ó AB 2001 Page 1 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. AB 2001 Page 2 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. AB 2001 Page 3 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 AB 2001 Page 4 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 AB 2001 Page 5 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 AB 2001 Page 6 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. AB 2001 Page 7 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: AB 2001 Page 8 Support None on file. Opposition None on file. Analysis Prepared by:Diane Colborn / W., P., & W. / (916) 319-2096