BILL NUMBER: AB 949 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Kehoe
FEBRUARY 23, 2001
An act to amend Sections 1601 and 1603 of the Fish and Game Code,
relating to streambeds, and making an appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 949, as introduced, Kehoe. Natural waters.
(1) Under existing law, general plans for a project for
construction by, or on behalf of, any state or local governmental
agency or any public utility are required to be submitted to the
Department of Fish and Game if the project will, among other things,
divert, obstruct, or change the natural flow or the bed, channel, or
bank of any river, stream, or lake designated by the department in
which there is at any time an existing fish or wildlife resource or
from which these resources derive benefit.
Existing law also makes it unlawful for any person to
substantially change the bed, channel, or bank of any river, stream,
or lake designated by the department without first notifying the
department, except as provided.
This bill would add to those requirements any project by such an
entity or person that would fill the bed, channel, or bank of any
river, stream, or lake and would also include isolated wetlands,
seasonal wetlands, vernal pools, or other waters that are not part of
a tributary system to interstate water or to navigable water of the
United States.
(2) Other provisions of existing law would make a violation of the
bill a misdemeanor. Thus, this bill would impose a state-mandated
local program by creating a new crime.
(3) 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.
(4) Under existing law, the money in the Fish and Game
Preservation Fund is continuously appropriated to the department to
carry out the Fish and Game Code.
Because this bill would impose new duties on the department, the
bill would thereby make an appropriation.
Vote: majority. Appropriation: yes. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1601 of the Fish and Game Code is amended to
read:
1601. (a) Except as provided in this section, general plans
sufficient to indicate the nature of a project for construction by,
or on behalf of, any state or local governmental agency or any public
utility shall be submitted to the department if the project will (1)
divert, obstruct, fill, or change the natural flow or the
bed, channel, or bank of any river, stream, or
lake , isolated wetland, seasonal wetland, vernal pool, or other
water that is not part of a tributary system to interstate water or
to navigable water of the United States designated by the
department in which there is at any time an existing fish or wildlife
resource or from which these resources derive benefit, (2) use
material from the streambeds designated by the department, or (3)
result in the disposal or deposition of debris, waste, or other
material containing crumbled, flaked, or ground pavement where it can
pass into any river, stream, or lake designated by the department.
If an existing fish or wildlife resource may be substantially
adversely affected by that construction, the department shall notify
the governmental agency or public utility of the existence of the
fish or wildlife resource together with a description thereof and
shall propose reasonable modifications in the proposed construction
that will allow for the protection and continuance of the fish or
wildlife resource, including procedures to review the operation of
those protective measures. The department's description of an
existing fish or wildlife resource shall be specific and detailed and
the department shall make available upon request the information
upon which its conclusion is based that the resource may be
substantially adversely affected. The proposals shall be submitted
within 30 days from the date of receipt of the plans, except that the
time period may be extended by mutual agreement. Upon a
determination by the department and after notice to the affected
parties of the necessity for an onsite investigation or upon the
request for an onsite investigation by the affected parties, the
department shall make an onsite investigation of the proposed
construction and shall make the investigation before it proposes any
modifications.
(b) (1) Within 14 days from the date of receipt of the department'
s proposals, the affected agency or public utility shall notify the
department in writing whether the proposals are acceptable, except
that the time period may be extended by mutual agreement. If the
department's proposals are not acceptable to the affected agency or
public utility, the agency or public utility shall so notify the
department. Upon request, the department shall meet with the
affected agency or public utility within seven days of receipt of the
notification, or at a time mutually agreed upon, for the purpose of
developing proposals that are acceptable to the department and the
affected agency or public utility.
(2) If mutual agreement is not reached at the meeting held
pursuant to paragraph (1), a panel of arbitrators shall be
established. The panel of arbitrators shall be established within
seven days from the date of the meeting, or at a time mutually agreed
upon, and shall be composed of one representative of the department,
one representative of the affected agency or public utility, and a
third person mutually agreed upon or, if no agreement can be reached,
the third person shall be appointed in the manner provided by
Section 1281.6 of the Code of Civil Procedure. The third person
shall act as chair of the panel. The panel may settle disagreements
and make binding decisions regarding the fish and wildlife
modifications. The arbitration shall be completed within 14 days
from the date that the composition of the panel is established,
unless the time is extended by mutual agreement. The expenses of the
department representative shall be paid by the department; the
expenses of the representative of the governmental agency or the
public utility shall be paid by the governmental agency or the public
utility; and the expenses of the chair of the panel shall be paid
one-half by each party.
(c) A governmental agency or public utility proposing a project
subject to this section shall not commence operations on that project
until the department has found that the project will not
substantially adversely affect an existing fish or wildlife resource
or until the department's proposals, or the decisions of a panel of
arbitrators, have been incorporated into the project. The department
shall not condition the streambed alteration agreement on a project
subject to this section on the receipt of another state or federal
permit.
(d) The department shall determine and specify types of work,
methods of performance, or remedial measures that are exempt from
this section.
(e) With regard to any project that involves the routine
maintenance and operation of water supply, drainage, flood control,
or waste treatment and disposal facilities, notice to, and agreement
with, the department is not required subsequent to the initial
notification and agreement, unless the work as described in the
agreement is substantially changed or conditions affecting fish and
wildlife resources substantially change, and the resources are
adversely affected by the activity conducted under the agreement.
This subdivision applies in any instance where notice to, and
agreement with, the department has been attained prior to January 1,
1977.
(f) (1) Except as provided in paragraph (2), this section does not
apply to any of the following projects:
(A) Immediate emergency work necessary to protect life or
property.
(B) Immediate emergency repairs to public service facilities
necessary to maintain service as a result of a disaster in a
disaster-stricken area in which a state of emergency has been
proclaimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1 of Title 2 of the Government Code.
(C) Emergency projects undertaken, carried out, or approved by a
public agency to maintain, repair, or restore an existing highway, as
defined in Section 360 of the Vehicle Code, except for a highway
designated as an official state scenic highway pursuant to Section
262 of the Streets and Highways Code, within the existing
right-of-way of the highway, damaged as a result of fire, flood,
storm, earthquake, land subsidence, gradual earth movement, or
landslide, within one year of the damage. Work needed in the
vicinity above and below a highway may be conducted outside of the
existing right-of-way if it is needed to stop ongoing or recurring
mudslides, landslides, or erosion that pose an immediate threat to
the highway or to restore those roadways damaged by mudslides,
landslides, or erosion to their predamage condition and
functionality. This subparagraph does not exempt from this section
any project undertaken, carried out, or approved by a public agency
to expand or widen a highway damaged by fire, flood, storm,
earthquake, land subsidence, gradual earth movement, or landslide.
(2) The agency or public utility performing the project shall
notify the department within 14 days from the date of commencement of
a project exempted by this subdivision.
(3) For purposes of this subdivision, "emergency" means an
emergency, as defined in Section 21060.3 of the Public Resources
Code.
(g) The department may enter into agreements with applicants for a
term of not more than five years for the performance of operations
on projects subject to this section. The terms of the agreement may
be renegotiated at any time by mutual consent of the parties. Each
agreement shall be renewed automatically by the department at the
expiration of its term unless the department determines that there
has been a substantial change in conditions. If there is a
disagreement between the department and the applicant as to whether
there has been a substantial change in conditions, the department and
the applicant shall proceed to arbitration pursuant to subdivision
(b). The department may charge a fee when the agreement is entered
into and for each renewal, but may not charge an annual fee for this
purpose.
SEC. 2. Section 1603 of the Fish and Game Code is amended to read:
1603. (a) It is unlawful for any person to substantially divert
or obstruct the natural flow or substantially change or fill
the bed, channel, or bank of any river, stream, or
lake , isolated wetland, seasonal wetland, vernal
pool, or other water that is not part of a tributary system to
interstate water or to navigable water of the United States
designated by the department, or use any material from the
streambeds, without first notifying the department of that activity,
except when the department has been notified pursuant to Section
1601. The department, within 30 days from the date of receipt of
that notice, or within the time determined by mutual written
agreement, shall, when an existing fish or wildlife resource may be
substantially adversely affected by that activity, notify the person
of the existence of that fish or wildlife resource together with a
description of the fish or wildlife, and shall submit to the person
its proposals as to measures necessary to protect fish and wildlife.
Upon a determination by the department of the necessity for onsite
investigation or upon the request for an onsite investigation by the
affected parties, the department shall notify the affected parties
that it shall make an onsite investigation of the activity and shall
make that investigation before it proposes any measure necessary to
protect the fish and wildlife. The department's description of an
existing fish or wildlife resource shall be specific and detailed and
the department shall make available upon request the information
upon which its conclusion is based that the resource may be
substantially adversely affected.
(b) (1) Within 14 days from the date of receipt of the department'
s proposals, the affected person shall notify the department in
writing whether the proposals are acceptable, except that the time
period may be extended by mutual agreement. If the department's
proposals are not acceptable to the affected person, the person shall
so notify the department. Upon request, the department shall meet
with the affected person within seven days from the date of receipt
of that notification or by a date that may be mutually agreed upon
for the purpose of developing proposals that are acceptable to the
department and the affected person.
(2) If mutual agreement is not reached at the meeting held
pursuant to paragraph (1), a panel of arbitrators shall be
established. However, appointment of the panel may be deferred by
mutual consent of the parties. The panel shall be established within
seven days from the date of that meeting and shall be composed of
one representative of the department, one representative of the
affected person, and a third person mutually agreed upon or, if no
agreement can be reached, the third person shall be appointed in the
manner provided by Section 1281.6 of the Code of Civil Procedure.
The third person shall act as panel chair. The panel may settle
disagreements and make binding decisions regarding fish and wildlife
modifications. The arbitration shall be completed within 14 days
from the date that the composition of the panel is established,
unless the time period is extended by mutual agreement. The expenses
of the department representative shall be borne by the department;
the expenses of the representative of the person who diverts or
obstructs the natural flow, or changes the bed, of any river, stream,
or lake, or uses any material from the streambeds shall be borne by
that person; and the expenses of the chair of the panel shall be paid
one-half by each party.
(c) It is unlawful for any person to commence any activity
affected by this section until the department has found that it will
not substantially adversely affect an existing fish or wildlife
resource or until the department's proposals, or the decisions of a
panel of arbitrators, have been incorporated into the activity. If
the department fails to act within 30 days from the date of the
receipt of the notice, the person may commence the activity. The
department shall not condition the streambed alteration agreement on
the receipt of another state or federal permit.
(d) It is unlawful for any person to engage in an activity
affected by this section, unless the activity is conducted in
accordance with the department's proposals or the decisions of the
panel of arbitrators.
(e) If an activity involves the routine maintenance and operation
of water supply, drainage, flood control, or waste treatment and
disposal facilities, notice to and agreement with the department
shall not be required subsequent to the initial notification and
agreement unless the work as described in the agreement is
substantially changed or conditions affecting fish and wildlife
resources substantially change and those resources are adversely
affected by the activity conducted under the agreement. This
subdivision applies in any instance where notice to, and agreement
with, the department has been attained prior to January 1, 1977.
(f) (1) Except as provided in paragraph (2), this section does not
apply to any of the following projects:
(A) Immediate emergency work necessary to protect life or
property.
(B) Immediate emergency repairs to public service facilities
necessary to maintain service as a result of a disaster in a
disaster-stricken area in which a state of emergency has been
proclaimed by the Governor pursuant to Chapter 7 (commencing with
Section 8550) of Division 1 of Title 2 of the Government Code.
(C) Emergency projects undertaken, carried out, or approved by a
public agency to maintain, repair, or restore an existing highway, as
defined in Section 360 of the Vehicle Code, except for a highway
designated as an official state scenic highway pursuant to Section
262 of the Streets and Highways Code, within the existing
right-of-way of the highway, damaged as a result of fire, flood,
storm, earthquake, land subsidence, gradual earth movement, or
landslide, within one year of the damage. Work needed in the
vicinity above and below a highway may be conducted outside of the
existing right-of-way if it is needed to stop ongoing or recurring
mudslides, landslides, or erosion that pose an immediate threat to
the highway or to restore those roadways damaged by mudslides,
landslides, or erosion to their predamage condition and
functionality. This subparagraph does not exempt from this section
any project undertaken, carried out, or approved by a public agency
to expand or widen a highway damaged by fire, flood, storm,
earthquake, land subsidence, gradual earth movement, or landslide.
(2) The person performing the project shall notify the department
within 14 days from the date of commencement of a project exempted by
this subdivision.
(3) For purposes of this subdivision, "emergency" means an
emergency, as defined in Section 21060.3 of the Public Resources
Code.
(g) The department may enter into agreements with applicants for a
term of not more than five years for the performance of activities
subject to this section. The terms of the agreement may be
renegotiated at any time by mutual consent of the parties. Each
agreement shall be renewed automatically by the department at the
expiration of its term unless the department determines that there
has been a substantial change in conditions. If there is a
disagreement between the department and the applicant as to whether
there has been a substantial change in conditions, the department and
the applicant shall proceed to arbitration pursuant to subdivision
(b). The department may charge a fee when the agreement is entered
into and for each renewal, but may not charge an annual fee for this
purpose.
SEC. 3. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB 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 XIIIB of the California Constitution.