Habitat Restoration and Enhancement Act., the official text

An act to amend Sections 1652, 1653, 1654, 1655, 1656, and 1657 of the Fish and Game Code, relating to fish and wildlife.

LEGISLATIVE COUNSEL'S DIGEST

The Habitat Restoration and Enhancement Act authorizes a project proponent to submit a habitat restoration or enhancement project to the Director of Fish and Wildlife for approval. The act requires the Department of Fish and Wildlife to assess an application fee for a project submitted to the department consistent with specified fees adopted by the department, as provided. Under the act, a habitat restoration or enhancement project is a project with the primary purpose of improving fish and wildlife habitat. The act requires the director to approve a habitat restoration or enhancement project if the director determines that specified conditions are met. Under the act, the director’s approval of a habitat restoration or enhancement project is in lieu of any other permit, agreement, license, or other approval issued by the Department of Fish and Wildlife. The act makes moneys in the Habitat Restoration and Enhancement Account available to the department, upon appropriation by the Legislature, for the purposes of administering and implementing the act. Existing law repeals the act on January 1, 2027.
This bill would extend the operation of the act until January 1, 2032, and would require the department to submit a report on the implementation of the act to the Legislature no later than December 31, 2029. The bill would eliminate the requirement for the application fee to be consistent with other specified fees adopted by the department and would instead authorize the department to establish a graduated schedule of fees.
The bill would revise the required contents of an application for a habitat restoration or enhancement project, as provided, and would transfer the responsibilities of the director under the act to the department.
The act establishes separate procedures for the approval of a habitat restoration or enhancement project depending on whether the project has received a specified certification pursuant to an order from the State Water Resources Control Board. As part of the procedures applicable to a project that has received that certification, the act requires the director to publish the receipt of certain information from the project proponent, and the director’s determination on whether the application is complete, in the California Regulatory Notice Register.
This bill would eliminate the requirement to publish that information in the California Regulatory Notice Register.
The act requires the director to suspend the implementation of a project under certain circumstances, as specified.
This bill would eliminate those provisions.
Existing law enumerates fully protected species and prohibits the take of fully protected species, except under limited circumstances.
This bill would require the department’s approval of a habitat restoration or enhancement project under the act to authorize the incidental take of a fully protected species resulting from impacts attributable to or otherwise related to the project.

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

SECTION 1.
Section 1652 of the Fish and Game Code is amended to read:
1652.
(a) A project proponent may submit a written request to approve a habitat restoration or enhancement project to the department pursuant to this section if the project has not received certification pursuant to the State Water Resources Control Board’s Order for Clean Water Act Section 401 General Water Quality Certification for Small Habitat Restoration Projects, or its current equivalent at the time the project proponent submits the written request. If the project has received certification pursuant to that order, or its current equivalent, the project proponent may submit a request for approval of the project pursuant to Section 1653.
(b) A written request to approve a habitat restoration or enhancement project pursuant to this section shall contain all of the following information:
(1) The name, address, title, organization, telephone number, and email 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 habitat restoration or enhancement project that includes the designs and techniques to be used for the project, restoration or enhancement methods, an estimate of temporary restoration- or enhancement-related disturbance, project schedule, anticipated activities, and how the project is expected to result in a net benefit to any affected habitat and species, consistent with paragraph (4) of subdivision (c).
(3) An assessment of the project area that provides a description of the existing flora and fauna and the potential presence of sensitive species or habitat. The assessment shall include preproject photographs of the project area that include a descriptive title, date taken, the photographic monitoring point, and photographic orientation.
(4) The results of any biological survey that has been conducted for the project.
(5) A geographic description of the project site including maps, land ownership information, and other relevant location information.
(6) A description of the environmental protection measures incorporated into the project design, so that no potentially significant adverse effects on the environment, as defined in Section 15382 of Title 14 of the California Code of Regulations, are likely to occur with application of the specified environmental protection measures. Environmental protection measures may include, but are not limited to, appropriate seasonal work limitations, measures to avoid and minimize impacts to water quality and potentially present species protected by state and federal law, and the use of qualified professionals for standard preconstruction surveys where protected species are potentially present.
(7) Substantial evidence to support a conclusion that the project meets the requirements set forth in this section. Substantial evidence shall include references to relevant design criteria and environmental protection measures found in the documents specified in paragraph (4) of subdivision (c).
(8) A certifying statement that the project will comply with the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), which may include, but not be limited to, the requirements of Section 15333 of Title 14 of the California Code of Regulations.
(c) Notwithstanding any other law, within 60 days after receiving a written request to approve a habitat restoration or enhancement project, the department shall approve the habitat restoration or enhancement project if the department determines that the written request includes all of the required information set forth in subdivision (b), and the project meets all of the following requirements:
(1) The project purpose is voluntary habitat restoration and the project is not required as mitigation.
(2) The project is not part of a regulatory permit for a nonhabitat restoration or enhancement construction activity, a regulatory settlement, a regulatory enforcement action, or a court order.
(3) The project meets the eligibility requirements of the State Water Resources Control Board’s Order for Clean Water Act Section 401 General Water Quality Certification for Small Habitat Restoration Projects, or its current equivalent at the time the project proponent submits the written request, but has not received certification pursuant to that order or its equivalent.
(4) The project is consistent with, or identified in, sources that describe best available restoration and enhancement methodologies, including one or more of the following:
(A) Federal- and state-listed species recovery plans or published protection measures, or previously approved department agreements and permits issued for voluntary habitat restoration or enhancement projects.
(B) Department and National Marine Fisheries Service fish screening criteria or fish passage guidelines.
(C) The department’s California Salmonid Stream Habitat Restoration Manual.
(D) Guidance documents and practice manuals that describe best available habitat restoration or enhancement methodologies that are used or approved by the department.
(5) The project will not result in cumulative adverse environmental impacts that are significant when viewed in connection with the effects of past, current, or probable future projects.
(d) If the department determines that the written request does not contain all of the information required by subdivision (b), or fails to meet the requirements set forth in subdivision (c), or both, the department shall deny the written request and inform the project proponent of the reason or reasons for the denial.
(e) The project proponent shall submit a notice of completion to the department no later than 30 days after the project approved pursuant to this section is completed. The notice of completion shall demonstrate that the project has been carried out in accordance with the project’s description. The notice of completion shall include a map of the project location, including the final boundaries of the restoration area or areas and postproject photographs. Each photograph shall include a descriptive title, date taken, photographic monitoring point, and photographic orientation.
(f) The project proponent shall submit a monitoring report describing whether the restoration project is meeting each of the restoration goals stated in the project application. Each report shall include photographs with a descriptive title, date taken, photographic monitoring point, and photographic orientation. The monitoring reports for Section 401 Water Quality Certification or waste discharge requirements of the State Water Resources Control Board or a regional water quality control board, or for department or federal voluntary habitat restoration programs, including, but not limited to, the Fisheries Restoration Grant Program, may be submitted in lieu of this requirement.

SEC. 2.
Section 1653 of the Fish and Game Code is amended to read:
1653.
(a) A project proponent may submit a written request to approve a habitat restoration or enhancement project to the department pursuant to this section if the project has received certification pursuant to the State Water Resources Control Board’s Order for Clean Water Act Section 401 General Water Quality Certification for Small Habitat Restoration Projects, or its current equivalent at the time the project proponent submits the written request.
(b) A written request to approve a habitat restoration or enhancement project pursuant to this section shall include all of the following information:
(1) Notice that the project proponent has received a notice of applicability that indicates that the project is authorized pursuant to the State Water Resources Control Board’s Order for Clean Water Act Section 401 General Water Quality Certification for Small Habitat Restoration Projects, or its equivalent at the time the project proponent submits the written request.
(2) A copy of the notice of applicability.
(3) A copy of the notice of intent provided to the State Water Resources Control Board or a regional water quality control board.
(4) The results of any biological survey that has been conducted for the project.
(5) If the project will result in the take of species protected by state law, a list of those species that may be taken, the type of take, and the mechanisms of take.
(6) A description of measures incorporated into the project, but not already included in the notice of intent, to avoid and minimize impacts to species protected by state law, such as appropriate seasonal work limitations and the use of qualified professionals for standard preconstruction surveys.
(7) If the project includes a design plan that has been prepared by a professional engineer, a design plan that is at least 65 percent complete.
(8) The fees required pursuant to Section 1655.
(c) Within 30 days after the department has received the notice of applicability described in subdivision (b), the department shall determine whether the written request accompanying the notice of applicability is complete.
(d) If the department determines within that 30-day period, based upon substantial evidence, that the written request is not complete, then the project may be authorized under Section 1652.
(e) The project proponent shall submit the monitoring plan, monitoring report, and notice of completion to the department as required by the State Water Resources Control Board’s Order for Clean Water Act Section 401 General Water Quality Certification for Small Habitat Restoration Projects, or its current equivalent at the time the project proponent submits the written request. The order or its current equivalent may include programmatic waivers or waste discharge requirements for small scale restoration projects.

SEC. 3.
Section 1654 of the Fish and Game Code is amended to read:
1654.
(a) (1) The department’s approval of a habitat restoration or enhancement project pursuant to Section 1652 or 1653 shall be in lieu of any other permit, agreement, license, or other approval issued by the department, including, but not limited to, those issued pursuant to Chapter 6 (commencing with Section 1600) and Chapter 10 (commencing with Section 1900) of this division and Chapter 1.5 (commencing with Section 2050) of Division 3.
(2) The department’s approval of a habitat restoration or enhancement project pursuant to Section 1652 or 1653 shall authorize the incidental take of any species designated as a fully protected species pursuant to Sections 3511, 4700, 5050, or 5515 resulting from impacts attributable to or otherwise related to the habitat restoration or enhancement project.
(b) This chapter shall not be construed as expanding the scope of projects requiring a permit, agreement, license, or other approval issued by the department.
(c) Pursuant to Section 818.4 of the Government Code, the department and any other state agency exercising authority under this section shall not be liable with regard to any determination or authorization made pursuant to this section.

SEC. 4.
Section 1655 of the Fish and Game Code is amended to read:
1655.
(a) The Habitat Restoration and Enhancement 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 department administration and permitting of projects and programs included in this chapter.
(c) The department shall assess an application fee for a project submitted to the department pursuant to Section 1652 or 1653. The department may establish a graduated schedule of fees and the application fee shall not exceed the reasonable administrative and implementation costs of the department relating to the project.
(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.

SEC. 5.
Section 1656 of the Fish and Game Code is amended to read:
1656.
(a) The department shall submit a report no later than December 31, 2020, an additional report no later than December 31, 2025, and an additional report no later than December 31, 2029, on the implementation of this chapter to the Legislature that shall include, but not be limited to, the number, type, and geographical distribution of approved projects, funding adequacy, and recommendations for changes and improvements in the program.
(b) A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.

SEC. 6.
Section 1657 of the Fish and Game Code is amended to read:
1657.
This chapter shall remain in effect only until January 1, 2032, and as of that date is repealed.