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AB-315 Voluntary stream restoration property owner liability: indemnification.(2021-2022)

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Date Published: 04/21/2021 09:00 PM
AB315:v97#DOCUMENT

Amended  IN  Assembly  April 21, 2021
Amended  IN  Assembly  March 11, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 315

Introduced by Assembly Member Stone

January 25, 2021

An act to add Chapter 6.6 (commencing with Section 1660) to Division 2 of the Fish and Game Code, relating to fish and wildlife.


LEGISLATIVE COUNSEL'S DIGEST


AB 315, as amended, Stone. Voluntary stream restoration property owner liability: indemnification.
Existing law 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, without first notifying the Department of Fish and Wildlife of that project, and entering into a lake or streambed alteration agreement if required by the department to protect fish and wildlife resources.
Existing law authorizes a habitat restoration or enhancement project proponent to submit a written request for approval of the project to the Director of Fish and Wildlife. Existing law requires the director to approve the project if the written request includes certain information, as specified, and provides for an alternate authorization process by the State Water Resources Control Board.
This bill would require the state to indemnify and hold harmless a property owner who voluntarily allows their property to be used for such a project to restore fish and wildlife habitat from civil liability for property damage or personal injury resulting from the project if the project meets specified requirements, including that the project is funded, at least in part, by a state or federal agency whose mission includes restoring habitat for native fish and wildlife, and the liability arises from, and the property owner or any person or entity retained by the property owner does not perform, the construction, design specifications, surveying, planning, supervision, testing, or observation of construction related to the project to restore fish and wildlife habitat. The bill would authorize the state to enter into an agreement with the United States government, or subdivision thereof, to share the cost of any civil liability incurred. The bill would prohibit the cost of any civil liability incurred from being chargeable to or constituting an obligation of a state agency that provides funding for the project, as specified.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) The state is home to a wealth of native aquatic species, including anadromous salmonid fish, that are vital to the state’s natural heritage, and support recreation opportunities and a commercial fishing industry.
(b) Many of these species are in decline due to degradation and loss of habitat, and some have been listed as threatened or endangered under the California Endangered Species Act (Chapter 1.5 (commencing with Section 2050) of Division 3 of the Fish and Game Code) and the federal Endangered Species Act (16 U.S.C. Sec. 1531 et seq.).
(c) The state has prepared plans and administers various grant programs to recover many of these species and improve the health of aquatic habitat and ecosystems, and these programs call for extensive restoration of riparian habitat located on privately owned lands.
(d) A lack of clarity surrounding liability for damages that may result from restoration projects has made many private property owners reluctant to allow habitat restoration projects on their property, and this reluctance has been a barrier to the implementation of projects that could otherwise help the state meet its goals for recovering sensitive aquatic species and their habitat.
(e) Damage claims associated with habitat restoration are exceedingly rare, and potential financial liability associated with such claims should be and typically is borne by the parties who design and implement such projects, not by property owners who simply allow the project to be implemented on their property.
(f) The state has a responsibility to minimize barriers to implementing projects funded by programs it administers, especially when the projects help the state meet its conservation goals and provide public benefits.

SEC. 2.

 Chapter 6.6 (commencing with Section 1660) is added to Division 2 of the Fish and Game Code, to read:
CHAPTER  6.6. Voluntary Stream Restoration Property Owner Liability

1660.
 (a) The state shall indemnify and hold harmless a property owner who voluntarily allows their property to be used for a project to restore fish and wildlife habitat from civil liability for property damage or personal injury resulting from the project if all of the following requirements are met:
(1) The project is authorized pursuant to Section 1602, 1652, or 1653.
(2) The project is funded, at least in part, by a state or federal agency whose mission includes restoring habitat for native fish or wildlife.
(3) The project has received all approvals required under Part 1 (commencing with Section 6000) of Division 3 of the Water Code or Division 7 (commencing with Section 13000) of the Water Code.
(4) The liability arises from the construction, design specifications, surveying, planning, supervision, testing, or observation of construction related to the project to restore fish and wildlife habitat.
(5) The property owner does not perform, or retain any person or entity to perform, any construction, design specifications, surveying, planning, supervising, testing, or observation of construction related to the project.
(b) The state may develop any regulations, forms, or contracts necessary to implement subdivision (a).
(c) The state may seek to enter into an agreement with the United States government, or subdivision thereof, to share the cost of any civil liability incurred pursuant to subdivision (a).
(d) The cost of any civil liability incurred pursuant to subdivision (a) shall not be chargeable to or constitute an obligation of a state agency that provides funding for the project under paragraph (2) of subdivision (a) or any funds under its control.
(e) This section shall not be construed to alter any existing rights, duties, or obligations arising from Title 12 (commencing with Section 2772) of Part 4 of Division 3 of the Civil Code.

(e)

(f) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.