BILL ANALYSIS 1
SENATE NATURAL RESOURCES AND WILDLIFE BILL NO:AB 997
Senator Sheila Kuehl, Chair AUTHOR:Dickerson
VERSION:June 19, 2001
Original:February 23,
2001
FISCAL:Yes
URGENCY:No
CONSULTANT:Syrus Devers
HEARING DATE:June 11,
2001
SUBJECT: Streambed alteration
ISSUE: Should the Legislature exempt from oversight by
the Department of Fish and Game (DFG) any maintenance on
previously permitted structures in streambeds used for
irrigation, water supply, drainage, diversion of water, and
crossings?
SUMMARY: This bill exempts from DFG review any activity
that may adversely affect a streambed if the activity is
related to maintenance of a previously permitted structure
used for irrigation, water supply, drainage, diversion of
water, or crossings. In addition, this bill allows DFG only
30 days to deny a written application for the continued
operation of an existing structure used for the purposes
previously described. After thirty days, the application is
automatically approved.
BACKGROUND & EXISTING LAW: It is unlawful for any person
to alter or obstruct a streambed, or to use materials from
a streambed, if it will substantially injure fish and
wildlife in a designated river or stream unless DFG is
notified of the activity. Once DFG is notified, all of the
following occur:
1) After notice is received, DFG must respond within 30
days, or within a time mutually agreed to, with a
description of the fish or wildlife resources that may be
substantially injured by the activity, and a proposal to
protect the resource. DFG may decide an onsite inspection
is required before making any proposals. If DFG does not
respond in 30 days, the person may commence the activity.
2) The affected party then has 14 days to accept the
proposals or to request a meeting with the department,
which must occur within 7 days, in order to develop
measures that are mutually acceptable.
3) If mutual agreement cannot be reached, a three person
panel of arbitrators is appointed, one selected by DFG, one
by the party, and one by mutual agreement. If there's no
agreement as to the third arbitrator, a person is appointed
pursuant to Code of Civil Procedure 1281.6.
DFG is authorized to enter into long-term agreements
(up to 5 years) to authorize any of activities that may
impact a designated streambed. These agreements are
automatically renewed unless DFG determines that conditions
have substantially changed.
Emergency repairs, conducted after the Governor has
declared a state of emergency, are exempted from DFG
review, as are emergency repairs to a state highway.
COMMENTS: Supporters of this bill argue that waiting for
DFG review of maintenance on existing irrigation, water
supply, drainage structures, and stream crossings may
delay, and impose significant costs, on ranching and
farming activities. Many support letters describe these
activities as routine or minor.
Opponents of the bill argue that this bill would open
up a large loophole in the law intended to protect
important rivers and streams. The California Fish and Game
Warden Supervisors and Management Association points out
that the terms in the bill are so broad that there are few
activities that would not fit under the exemption.
While many of the bill's supporters refer to exempting
routine or minor maintenance, there is no such limitation
in the language of the bill. Neither is there any
limitation on what types of previously permitted structures
would qualify for the exemption. Even the pumps of a large
irrigation district would appear to qualify as "structures
used for irrigation, water supply, and drainage."
Conceivably, this bill would exempt operations that include
operating heavy machinery in the streambed, or perhaps even
diversion of the stream.
Opponents also point out that the concerns raised by
supporters of repeated review of routine maintenance
activities can be adequately addressed by working
cooperatively with DFG and entering into long-term
agreements that specifically allow these operations.
Staff Comment : None of the letters in support or opposition
address the most recent amendment to this bill which
provides for automatic approval of the continuing operation
of a previously permitted structure used for the purposes
described above unless DFG denies the application within 30
days. Strictly speaking, DFG does not deny permit
applications, but rather proposes measures necessary to
protect wildlife resources. If the applicant rejects DFG's
proposals, the applicant may meet with DFG to work out
acceptable alternatives, and may seek arbitration if still
unsatisfied. Semantics aside, however, staff shortages at
DFG were well established in Senate hearings last session,
and it is, therefore, likely that, under this bill, a
majority of permits would be renewed regardless of their
merits simply because DFG would be unable to finalize
review of them in 30 days.
SUPPORT:
Siskiyou County Board of Supervisors (sponsor)
California Cattlemen's Association
Consulting Engineers and Land Surveyors of California
Regional Council of Rural Counties
Duane Martin Livestock
Pace Civil, Inc.
Association of California Water Agencies
Orange County Water District
OPPOSED:
California District Attorneys Association
California Native Plant Society
Defenders of Wildlife
California Fish and Game Warden Supervisors and Management
Association