BILL NUMBER: SB 904 CHAPTERED 09/16/04 CHAPTER 545 FILED WITH SECRETARY OF STATE SEPTEMBER 16, 2004 APPROVED BY GOVERNOR SEPTEMBER 16, 2004 PASSED THE SENATE AUGUST 23, 2004 PASSED THE ASSEMBLY AUGUST 19, 2004 AMENDED IN ASSEMBLY AUGUST 16, 2004 AMENDED IN ASSEMBLY JULY 1, 2004 AMENDED IN ASSEMBLY APRIL 12, 2004 AMENDED IN SENATE JANUARY 12, 2004 INTRODUCED BY Senator Chesbro FEBRUARY 21, 2003 An act to amend Sections 5093.52, 5093.55, 5093.56, 5093.61, and 5093.68 of the Public Resources Code, relating to wild and scenic rivers. LEGISLATIVE COUNSEL'S DIGEST SB 904, Chesbro. Wild and scenic rivers. (1) Under existing law, the California Wild and Scenic Rivers Act, specified rivers and segments thereof are included within the California Wild and Scenic Rivers System and are subject to certain protections. The act requires the Secretary of the Resources Agency to study and submit to the Governor and the Legislature reports on the suitability or nonsuitability of designated potential additions to the system. This bill would delete obsolete provisions. (2) The California Wild and Scenic Rivers Act defines "special treatment areas" as specific locations that are within 200 feet of the watercourse transition line of federal or state designated wild and scenic rivers, that may be at risk during timber operations. The act imposes certain requirements related to timber operations within the boundaries of special treatment areas. Certain violations of those requirements are a crime. This bill would change the definition of "special treatment areas" to also include specific locations that are within 200 feet of the watercourse transition line of state-designated recreational rivers, that may be at risk during timber operations. The bill would specify that the requirements related to timber operations within special treatment areas apply to areas adjacent to wild, scenic, or recreational river segments. Because the bill would expand the definition of "special treatment areas," and a violation of certain requirements related to those areas is a crime, the bill would impose a state-mandated local program, by creating a new crime. (3) The California Wild and Scenic Rivers Act requires all departments and agencies of the state to exercise their powers granted under any other provision of law in a manner consistent with the policy and provisions of the act. This bill, instead, would require all departments and agencies of the state to exercise their powers granted under any other provision of law in a manner that protects the free-flowing state of each component of the California Wild and Scenic Rivers System and the extraordinary values for which each component was included in the system. (4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement. This bill would provide that no reimbursement is required by this act for a specified reason. (5) This bill incorporates additional changes to Section 5093.68 of the Public Resources Code proposed by SB 1482, to become operative only if SB 1482 and this bill are both chaptered and become effective on or before January 1, 2005, and this bill is chaptered last. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 5093.52 of the Public Resources Code is amended to read: 5093.52. As used in this chapter, the following terms have the following meaning: (a) "Secretary" means the Secretary of the Resources Agency. (b) "Resources Agency" means the Secretary of the Resources Agency and any constituent units of the Resources Agency that the secretary determines to be necessary to accomplish the purposes of this chapter. (c) "River" means the water, bed, and shoreline of rivers, streams, channels, lakes, bays, estuaries, marshes, wetlands, and lagoons, up to the first line of permanently established riparian vegetation. (d) "Free-flowing" means existing or flowing without artificial impoundment, diversion, or other modification of the river. The presence of low dams, diversion works, and other minor structures does not automatically bar a river's inclusion within the system. However, this subdivision does not authorize or encourage future construction of those structures on any component of the system. (e) "System" means the California Wild and Scenic Rivers System. (f) "Land use regulation" means the regulation by any state or local governmental entity, agency, or official of any activities that take place other than directly on the waters of the segments of the rivers designated in Section 5093.54. (g) "Director" means the Director of Fish and Game. (h) "Immediate environments" means the land immediately adjacent to the segments of the rivers designated in Section 5093.54. (i) "Special treatment areas" means, for purposes of this chapter, those areas defined as special treatment areas in Section 895.1 of Title 14 of the California Code of Regulations, as in effect on January 1, 2004, as that definition applies to wild and scenic river segments designated from time to time in Section 5093.54, and also includes areas within 200 feet of the watercourse transition line of a state-designated recreational river segment designated in Section 5093.54 that may be at risk during timber operations. (j) "Board" means the State Board of Forestry and Fire Protection. SEC. 2. Section 5093.55 of the Public Resources Code is amended to read: 5093.55. Other than temporary flood storage facilities permitted pursuant to Section 5093.57, no dam, reservoir, diversion, or other water impoundment facility may be constructed on any river and segment thereof designated in Section 5093.54; nor may a water diversion facility be constructed on the river and segment unless and until the secretary determines that the facility is needed to supply domestic water to the residents of the county or counties through which the river and segment flows, and unless and until the secretary determines that the facility will not adversely affect the free-flowing condition and natural character of the river and segment. SEC. 3. Section 5093.56 of the Public Resources Code is amended to read: 5093.56. No department or agency of the state may assist or cooperate, whether by loan, grant, license, or otherwise, with any department or agency of the federal, state, or local government, in the planning or construction of a dam, reservoir, diversion, or other water impoundment facility that could have an adverse effect on the free-flowing condition and natural character of the river and segments thereof designated in Section 5093.54 as included in the system. SEC. 4. Section 5093.61 of the Public Resources Code is amended to read: 5093.61. All departments and agencies of the state shall exercise their powers granted under any other provision of law in a manner that protects the free-flowing state of each component of the system and the extraordinary values for which each component was included in the system. All local government agencies shall exercise their powers granted under any other provision of law in a manner consistent with the policy and provisions of this chapter. SEC. 5. Section 5093.68 of the Public Resources Code is amended to read: 5093.68. (a) Within the boundaries of special treatment areas adjacent to wild, scenic, or recreational river segments, all of the following provisions apply, in addition to any other applicable provision under this chapter or generally, whether by statute or regulation: (1) A timber operator, whether licensed or not, is responsible for the actions of his or her employees. The registered professional forester who prepares and signs a timber harvesting plan, a timber management plan, or a notice of timber operations is responsible for its contents, but is not responsible for the implementation or execution of the plan or notice unless employed for that purpose. (2) A registered professional forester preparing a timber harvesting plan shall certify that he or she or a qualified representative has personally inspected the plan area on the ground. (3) A person operating within the special treatment area who willfully violates any provision of Chapter 8 (commencing with Section 4511) of Part 2 of Division 4, or any rule or regulation of the board adopted pursuant thereto, that results in significant environmental damage is guilty of a misdemeanor punishable by a fine of not less than five hundred dollars ($500) or more than five thousand dollars ($5,000), or by imprisonment for not more than one year in the county jail, or by both that fine and imprisonment. The person is also subject to civil damages to the state not to exceed ten thousand dollars ($10,000) for each misdemeanor violation. (4) The Director of Forestry and Fire Protection may require a bond or other evidence of financial responsibility from a timber operator whose ability to pay the civil damages provided for in this section is reasonably determined to be uncertain. (b) In order to temporarily suspend timber operations that are being conducted within special treatment areas adjacent to wild, scenic, or recreational rivers designated pursuant to Section 5093.54, while judicial remedies are pursued pursuant to this section, an inspecting forest officer of the Department of Forestry and Fire Protection may issue a written timber operations stop order if, upon reasonable cause, the officer determines that a timber operation is being conducted, or is about to be conducted, in violation of Chapter 8 (commencing with Section 4511) of Part 2 of Division 4, or of rules and regulations adopted pursuant to those provisions, and that the violation or threatened violation would result in imminent and substantial damage to soil, water, or timber resources or to fish and wildlife habitat. A stop order shall apply only to those acts or omissions that are the proximate cause of the violation or that are reasonably foreseen to be the proximate cause of a violation. The stop order shall be effective immediately and throughout the next day. (c) A supervising forest officer may, after an onsite investigation, extend a stop order issued pursuant to subdivision (b) for up to five days, excluding Saturday and Sunday, if the forest officer finds that the original stop order was issued upon reasonable cause. A stop order may not be issued or extended for the same act or omission more than one time. (d) Each stop order shall identify the specific act or omission that constitutes a violation or that, if foreseen, would constitute a violation, the specific timber operation that is to be stopped, and any corrective or mitigative actions that may be required. (e) The Department of Forestry and Fire Protection may terminate the stop order if the timber operator enters into a written agreement with the department assuring that the timber operator will resume operations in compliance with the provisions of Chapter 8 (commencing with Section 4511) of Part 2 of Division 4, and with the rules and regulations adopted pursuant to those provisions, and will correct any violation. The department may require a reasonable cash deposit or bond payable to the department as a condition of compliance with the agreement. (f) Notice of the issuance of a stop order or an extension of a stop order shall be deemed to have been made to all persons working on the timber operation when a copy of the written order is delivered to the person in charge of operations at the time that the order is issued or, if no persons are present at that time, by posting a copy of the order conspicuously on the yarder or log loading equipment at a currently active landing on the timber operations site. If no person is present at the site when the order is issued, the issuing forest officer shall deliver a copy of the order to the timber operator either in person or to the operator's address of record prior to the commencement of the next working day. (g) As used in this section, "forest officer" means a registered professional forester employed by the Department of Forestry and Fire Protection in a civil service classification of forester II or higher grade. (h) (1) Failure of the timber operator or an employee of the timber operator, after receiving notice pursuant to this section, to comply with a validly issued stop order is a violation of this section and is punishable as provided in paragraph (3) of subdivision (a). However, in all cases, the timber operator, and not an employee of the operator or any other person, shall be charged with that violation. Each day or portion thereof that the violation continues shall constitute a new and separate offense. (2) In determining the penalty for a timber operator guilty of violating a validly issued stop order, the court shall take into consideration all relevant circumstances, including, but not limited to, the following: (A) The extent of harm to soil, water, or timber resources or to fish and wildlife habitat. (B) Corrective action, if any, taken by the defendant. (i) Nothing in this section prevents a timber operator from seeking an alternative writ as prescribed in Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, or as provided by any other provision of law. (j) (1) If a timber operator believes that a forest officer lacked reasonable cause to issue or extend a stop order pursuant to this section, the timber operator may present a claim to the Victim Compensation and Government Claims Board pursuant to Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code for compensation and damages resulting from the stopping of timber operations. (2) If the Victim Compensation and Government Claims Board finds that the forest officer lacked reasonable cause to issue or extend the stop order, the board shall award a sum of not less than one hundred dollars ($100), nor more than one thousand dollars ($1,000), per day for each day the order was in effect. SEC. 5.5. Section 5093.68 of the Public Resources Code is amended to read: 5093.68. (a) Within the boundaries of special treatment areas adjacent to wild, scenic, or recreational river segments, all of the following provisions apply, in addition to any other applicable provision under this chapter or generally, whether by statute or regulation: (1) A timber operator, whether licensed or not, is responsible for the actions of his or her employees. The registered professional forester who prepares and signs a timber harvesting plan, a timber management plan, or a notice of timber operations is responsible for its contents, but is not responsible for the implementation or execution of the plan or notice unless employed for that purpose. (2) A registered professional forester preparing a timber harvesting plan shall certify that he or she or a qualified representative has personally inspected the plan area on the ground. (b) In order to temporarily suspend timber operations that are being conducted within special treatment areas adjacent to wild, scenic, or recreational rivers designated pursuant to Section 5093.54, while judicial remedies are pursued pursuant to this section, an inspecting forest officer of the Department of Forestry and Fire Protection may issue a written timber operations stop order if, upon reasonable cause, the officer determines that a timber operation is being conducted, or is about to be conducted, in violation of Chapter 8 (commencing with Section 4511) of Part 2 of Division 4, or of rules and regulations adopted pursuant to those provisions, and that the violation or threatened violation would result in imminent and substantial damage to soil, water, or timber resources or to fish and wildlife habitat. A stop order shall apply only to those acts or omissions that are the proximate cause of the violation or that are reasonably foreseen would be the proximate cause of a violation. The stop order shall be effective immediately and throughout the next day. (c) A supervising forest officer may, after an onsite investigation, extend a stop order issued pursuant to subdivision (b) for up to five days, excluding Saturday and Sunday, if the forest officer finds that the original stop order was issued upon reasonable cause. A stop order shall not be issued or extended for the same act or omission more than one time. (d) Each stop order shall identify the specific act or omission that constitutes a violation or that, if foreseen, would constitute a violation, the specific timber operation that is to be stopped, and any corrective or mitigative actions that may be required. (e) The Department of Forestry and Fire Protection may terminate the stop order if the timber operator enters into a written agreement with the department assuring that the timber operator will resume operations in compliance with the provisions of Chapter 8 (commencing with Section 4511) of Part 2 of Division 4, and with the rules and regulations adopted pursuant to those provisions, and will correct any violation. The department may require a reasonable cash deposit or bond payable to the department as a condition of compliance with the agreement. (f) Notice of the issuance of a stop order or an extension of a stop order shall be deemed to have been made to all persons working on the timber operation when a copy of the written order is delivered to the person in charge of operations at the time that the order is issued or, if no persons are present at that time, by posting a copy of the order conspicuously on the yarder or log loading equipment at a currently active landing on the timber operations site. If no person is present at the site when the order is issued, the issuing forest officer shall deliver a copy of the order to the timber operator either in person or to the operator's address of record prior to the commencement of the next working day. (g) As used in this section, "forest officer" means a registered professional forester employed by the Department of Forestry and Fire Protection in a civil service classification of forester II or higher grade. (h) (1) Failure of the timber operator or an employee of the timber operator, after receiving notice pursuant to this section, to comply with a validly issued stop order is a violation of this section and a misdemeanor punishable by a fine of not less than five hundred dollars ($500) or more than five thousand dollars ($5,000), or by imprisonment for not more than one year in the county jail, or by both that fine and imprisonment. The person shall also be subject to civil damages to the state not to exceed ten thousand dollars ($10,000) for each misdemeanor violation. However, in all cases, the timber operator, and not an employee of the operator or any other person, shall be charged with that violation. Each day or portion thereof that the violation continues shall constitute a new and separate offense. (2) In determining the penalty for a timber operator guilty of violating a validly issued stop order, the court shall take into consideration all relevant circumstances, including, but not limited to, the following: (A) The extent of harm to soil, water, or timber resources or to fish and wildlife habitat. (B) Corrective action, if any, taken by the defendant. (i) Nothing in this section prevents a timber operator from seeking an alternative writ as prescribed in Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, or as provided by any other provision of law. (j) (1) If a timber operator believes that a forest officer lacked reasonable cause to issue or extend a stop order pursuant to this section, the timber operator may present a claim to the Victim Compensation and Government Claims Board pursuant to Part 3 (commencing with Section 900) of Division 3.6 of Title 1 of the Government Code for compensation and damages resulting from the stopping of timber operations. (2) If the Victim Compensation and Government Claims Board finds that the forest officer lacked reasonable cause to issue or extend the stop order, the board shall award a sum of not less than one hundred dollars ($100), nor more than one thousand dollars ($1,000), per day for each day the order was in effect. SEC. 6. No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution. SEC. 7. Section 5.5 of this bill incorporates amendments to Section 5093.68 of the Public Resources Code proposed by both this bill and SB 1482. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2005, (2) each bill amends Section 5093.68 of the Public Resources Code, and (3) this bill is enacted after SB 1482, in which case Section 5 of this bill shall not become operative.