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 activity, and entering into a lake or streambed alteration agreement if required by the department to protect fish and wildlife resources.

This bill would define river and stream for purposes of these provisions. require the department, until January 1, 2023, to establish procedures for the issuance of a general agreement in lieu of an individual alteration agreement pursuant to these provisions. The bill would require the department to adopt general agreements, as specified, for these activities. The bill would require the department to charge a fee for a general agreement pursuant to specified provisions of law.

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 activity, and entering into a lake or streambed alteration agreement if required by the department to protect fish and wildlife resources.

This bill would define river and stream for purposes of these provisions.

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 activity, and entering into a lake or streambed alteration agreement if required by the department to protect fish and wildlife resources.

This bill would define river and stream for purposes of these provisions.

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 activity, and entering into a lake or streambed alteration agreement if required by the department to protect fish and wildlife resources.

This bill would define river and stream for purposes of these provisions.

ASSEMBLY THIRD READING

ATR Bill Id:AB 2545

Author:(Gallagher)

As Amended Ver:

Majority vote

SUMMARY: Requires the Department of Fish and Wildlife (DFW), until January 1, 2023, to adopt general agreements available to entities for lake and streambed alteration agreements (LSAA). Specifically, this bill:

1. Does not require an entity to obtain a general agreement if the entity prefers to obtain an individual LSAA. Specifies that a general agreement will be in lieu of an individual LSAA.
2. Requires the DFW to include guidance on the definition of river and stream in the general agreements.
3. Requires the DFW to establish fees for any general agreement in accordance with existing law on LSAA fees.
4. Does not apply the time periods or arbitration and court process that apply to individual LSAAs.

EXISTING LAW:

1. Requires an entity to notify the DFW prior to commencing any activity that may do one or more of the following:
2. Substantially divert or obstruct the natural flow of any river, stream or lake.
3. Substantially change or use any material from the bed, channel or bank of any river, stream, or lake.
4. Deposit debris, waste or other materials that could pass into any river, stream or lake.
5. Allows the DFW to enter into a LSAA which permits activities that alter a streambed if reasonable measures to protect fish and wildlife resources are included.

FISCAL EFFECT: According to Assembly Appropriations Committee: One-time costs of between $500,000 and $750,000 for DFW to develop the general agreements.

COMMENTS: An entity who plans on undertaking an activity that could substantially alter any river, stream, or lake must notify the DFW prior to engaging in the activity. The DFW requires an LSAA when it determines that the activity, as described in a complete LSAA notification, may substantially adversely affect existing fish or wildlife resources. This is often referred to as a 1600 permit. Prior to issuing an LSAA a project must have completed a California Environmental Quality Act (CEQA) analysis. An LSAA includes measures necessary to protect existing fish and wildlife resources, and may include ways to modify a project that would eliminate or reduce harmful impacts to fish and wildlife resources.

Under historical practice, an LSAA could be required for an activity adversely affecting a river, stream or lake, including those that are episodic, or dry for periods of time. This includes ephemeral streams, desert washes, and watercourses with a subsurface flow. An LSAA may also apply to work undertaken within the floodplain of a body of water. The DFW determines on a case-by-case basis if an activity will have a substantial impact, and if the activity is occurring within the boundaries of a waterway.

On January 2, 2018, the DFW promulgated regulations on a general LSAA for cannabis cultivation. In those regulations a stream and river were defined, for purposes of an LSAA for the first time. Stream and river were defined to mean: any stream or river, including streams or rivers that are dry for periods of time.

This bill would require the DFW to establish additional general agreements with similar requirements as were required of the general agreement for cannabis cultivation.

Analysis Prepared by: Ryan Ojakian / W., P., & W. / (916) 319-2096 FN: 0003298

Date of Hearing: May 9, 2018

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 2545

Author:(Gallagher) – As Amended Ver:April 25, 2018

Urgency: No State Mandated Local Program: No Reimbursable: No

SUMMARY:

This bill defines a river and stream for purposes of determining if a lake or streambed alteration (LSA) agreement is required. Specifically, this bill:

1. Defines river and stream to mean a body of water that flows at least periodically or intermittently through a definite course or channel having banks and that supports fish or other aquatic life. This definition includes watercourses having a surface or subsurface flow that supports or has supported riparian vegetation.
2. States the intent of the Legislature to codify definitions of bank, bed, and channel for the application of LSA requirements and that the definitions are consistent with existing case law.
3. Specifies that the definition of river and stream excludes artificial water conveyance infrastructure, except to the extent it incorporates or occupies a naturally occurring bed, bank or channel of a preexisting river or stream or replaces a preexisting river or stream for flood control or navigation. Specifies that artificial water conveyance includes, but is not limited to, canals, flood control channels, irrigation ditches, and drainage ditches.
4. Provides the exception for water conveyance infrastructure does not alter other provisions of existing law relating to water diversions or debris deposits, as specified.

FISCAL EFFECT:

1. Annual Department of Fish and Wildlife (DFW) fee revenue losses in the $2.5 to $3 million range. DFW estimates that 50% to 60% of intermittent or ephemeral streams statewide do not contain fish or other aquatic life and would no longer require LSA notification and agreements and associated fees. This corresponds to a reduction of approximately 1, 220 to 1, 464 notifications annually.
2. Unknown, potentially significant, increased DFW workload associated with an increase in pre-notification consultations for which no fees are charged to determine if LSA notification and agreements are necessary.

COMMENTS:

1. Purpose. According to the author, DFW requires LSA agreements before activity affecting streambeds can be undertaken. If this activity has an impact on fish and wildlife resources, the DFW may require mitigation measures to protect these resources.

The author contends this bill will help bring consistency to the enforcement and regulatory scope under §1602 of the Fish and Game Code, and will help individuals know when an LSA agreement is necessary.

1. Background. Fish and Game Code section 1602 requires an entity to notify DFW prior to commencing any activity that may do one or more of the following:
2. Substantially divert or obstruct the natural flow of any river, stream or lake.
3. Substantially change or use any material from the bed, channel or bank of any river, stream, or lake.
4. Deposit debris, waste or other materials that could pass into any river, stream or lake.

Any river, stream or lake includes those that are episodic as well as those that are perennial. This includes ephemeral streams, desert washes, and watercourses with a subsurface flow. It may also apply to work undertaken within the flood plain of a body of water.

DFW requires an LSA agreement when it determines that the activity, as described in a complete LSA notification, may substantially adversely affect existing fish or wildlife resources. An LSA agreement includes measures necessary to protect existing fish and wildlife resources. DFW may suggest ways to modify the project that would eliminate or reduce harmful impacts to fish and wildlife resources. Before issuing an LSA agreement, DFW must comply with the California Environmental Quality Act (CEQA).

On January 2, 2018, the DFW promulgated regulations on a general LSAA for cannabis cultivation. In those regulations a stream and river were defined, for purposes of an LSA agreement for the first time. Stream and river were defined to mean: any stream or river, including streams or rivers that are dry for periods of time.

1. Prior Legislation. AB 947 (Gallagher) of this session is similar to this bill but did not include the exemption for manmade infrastructure. AB 947 was pulled from hearing in this committee.

Analysis Prepared by: Jennifer Galehouse / APPR. / (916) 319-2081

Date of Hearing: April 24, 2018

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Eduardo Garcia, Chair

ABPCA Bill Id:AB 2545 (

Author:Gallagher) – As Amended Ver:April 17, 2018

SUBJECT: Department of Fish and Wildlife: lake or streambed alteration agreements: definitions

SUMMARY: Defines a river and stream for purposes of determining if a lake or streambed alteration agreement (LSAA) is required. Specifically, this bill:

1. Defines river and stream to mean a body of water that flows at least periodically or intermittently through a definite course or channel having banks and that supports fish or other aquatic life. This includes watercourses having a surface or subsurface flow that supports or have supported riparian vegetation.
2. States the intent of the Legislature to codify definitions of bank, bed, and channel for the application of LSAA requirements and that the definitions are consistent with existing case law.
3. Specifies that the definition of river and stream excludes artificial water conveyance infrastructure. Specifies that artificial water conveyance includes, but is not limited to, canals, flood control channels, irrigation ditches, and drainage ditches.

EXISTING LAW:

1. Prohibits any activity in a river, stream, or lake, which may substantially alter a streambed. Allows the Department of Fish and Wildlife (DFW) to enter into a Lake or Streambed Alteration Agreement (LSAA) which permits activities that alter a streambed if reasonable measures to protect fish and wildlife resources are included.
2. Requires an entity to notify the DFW prior to commencing any activity that may substantially alter a stream bed.

FISCAL EFFECT: Unknown

COMMENTS: This bill creates a new definition of the boundaries of a river and stream for purposes of determining when an LSAA is required.

Author’s statement:

Under the Lake and Streambed Alteration Program, DFW requires notification before certain activities affecting lakes, rivers or streams may occur. If the planned activity has an impact on fish and wildlife resources, DFW may require a LSA Agreement that includes measures to protect these resources. However, to protect our fishery resources effectively, there must be a standard for determining when LSA Agreements are necessary. This bill codifies established standards thereby ensuring consistent enforcement while giving individuals more clarification on when to notify the Department for planned activities.

Background: Lake and Streambed Alteration Agreement (LSAA) Basics. An individual who plans on undertaking an activity that could substantially alter a streambed or substantially adversely affect existing fish or wildlife must notify the DFW prior to engaging in the activity. After the DFW has received notice the DFW may require an LSAA. This is often referred to as a 1600 permit. Prior to issuing an LSAA a project must have completed a California Environmental Quality Act (CEQA) analysis. In an LSAA the DFW may suggest ways to modify a project that would eliminate or reduce harmful impacts to fish and wildlife resources.

Under historical practice, an LSAA could be required for an activity adversely affecting a river, stream or lake, including those that are episodic, or dry for periods of time. This includes ephemeral streams, desert washes, and watercourses with a subsurface flow. An LSAA may also apply to work undertaken within the floodplain of a body of water. The DFW determines on a case-by-case basis if an activity will have a substantial impact, and if the activity is occurring within the boundaries of a waterway.

The DFW has approximately 2,200 active LSAA agreements. LSAA permits are allowed to be issued for up to 5 years and most permits are issued for 5 years. More than 80 percent of permits are for projects that cost greater than $350,000. The LSAA program costs the DFW approximately $7 million a year and regulations set out a fee structure for LSAAs that cover staff review and development of an LSAA. The fee structure does not cover enforcement of LSAAs.

LSAAs last for a defined period of time to allow for mitigation requirements from activities that substantially adversely affect fish or wildlife to evolve over time. In this way the LSAA can be adapted as conditions change to require appropriate mitigation for changing project impacts.

Where Does the Waterway End and the Land Begin? The critical question this bill raises is when an LSAA should apply? The bill answers that question by codifying the stream definition that the DFW has used in regulations since at least 1987.

It is challenging to provide an unchanging definition of the boundaries of a waterway, river, stream, or lake as those bodies are dynamic and the boundaries are not static over time. With climate change, California is expected to experience increased flooding and drought, and the physical boundaries of waterways will likely be subject to greater change and become even harder to specify in the future. If law is going to protect waterways as LSAAs are intended to do then the physical place where enforcement is required may be subject to change. Consistency in a physical place of enforcement, i.e., this particular spot was not in the boundaries of a stream previously and is therefore never going to be in the boundaries of a stream, is inconsistent with the purpose of an LSAA. However, a science-based definition of what constitutes a stream could allow for the course of the stream to change over time and still provide clarity as to when an LSAA applies.

DFW and General LSAA for Cannabis. On January 2, 2018, the DFW promulgated regulations on a general LSAA for cannabis cultivation. In those regulations a stream and river were defined, for purposes of an LSAA for the first time. Stream and river were defined to mean:

“Any stream or river, including streams or rivers that are dry for periods of time.”

Exemption for Man-Made Infrastructure. The bill would exempt man-made water infrastructure from the definition of river or stream. The bill would not apply the exemption to man-made infrastructure that, lies in, or replaces, a preexisting river or stream. The exemption for man-made water infrastructure would exclude any man-made facility from an LSAA.

Committee Amendments: The Committee suggests that the bill be amended to specify that diversions or discharges to and from man-made infrastructure that substantially adversely affect existing fish and wildlife resources must receive an LSAA. The committee suggests the following amendment to add an (e)(3) on page 2 after line 32 to read:

(3) The exception for artificial water conveyance infrastructure in subdivision (e)(2) of this section does not alter the otherwise applicable provisions in Section 1602, including the requirement to provide a notice under subdivision (a) of Section 1602 where construction, operation, or maintenance of such infrastructure would substantially divert or obstruct the natural flow of, or substantially change or use any material from the bed, channel, or bank of, any river, stream, or lake, or deposit or dispose of debris, waste, or other material containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake, and where such notice is required, the requirement to enter a final agreement pursuant to Section 1603 if the department determines that the activity may substantially adversely affect an existing fish or wildlife resource.

Additionally the Committee suggests that “aquatic life” in e (1) on page 2 line 21 be replaced with “wildlife”.

Prior and Related Legislation:

SB 418 (Sher), Chapter 736, Statutes of 2003, revised and reauthorized the LSAA process.

SB 1026 (Nielsen), 2016, would have limited diversions and obstructions regulated by LSAAs and would have exempted maintenance and repair facilities for instream agricultural diversions. The bill failed passage in the Senate Natural Resources and Water Committee.

AB 1704 (Dodd), 2016, would have required the State Water Resources Control Board in consultation with the DFW to adopt general conditions for registrants to divert and store water for small irrigation uses, as specified.

AB 947 (Gallagher), 2017, would have codified definitions of river and stream and stated that the definitions of “bed”, “bank”, and “channel” are consistent with existing case law. It was pulled from hearing in Assembly Appropriations committee.

Supporting Arguments: It is important to have a fair understanding of what the law requires. This bill ensures landowners continue to have this understanding by clarifying the common understanding of a river and stream. Some action by the DFW have strayed from the established understanding for determining what constitutes a “bed, bank, or channel” for purposes of determining the scope under a 1600 permit. This has drastically expanded the DFW’s authority to desert environments where there is some evidence of “flow” as well as any other area that could have had flow at some period in the last couple of centuries. This bill will ensure consistent enforcement while giving more clarification on if an LSAA is required for planned activities.

Opposing Arguments: This bill would add a definition of “river” and “stream” into the fish and wildlife protection program found within the 1600 Program, which would significantly reduce the level of protection and conservation for fish and wildlife in California. Section 1600, et al. was enacted for the “protection and conservation of the fish and wildlife resources of the state. The rationale is that “waters,” broadly defined, are critical for the conservation and protection of “fish and wildlife,” broadly defined. This bill provides no science-based and detailed definition for the terms it would codify. If the definition in this bill becomes law, it would create more confusion and uncertainty as to what is regulated by the 1600 Program and would require DFW to spend time and resources revising and debating over what would now be regulated in the 1600 Program.

REGISTERED SUPPORT / OPPOSITION:

Support

California Farm Bureau Federation

Opposition

5 Gyres Institute, the

Audubon California

California Coastal Protection Network

California Coastkeeper Alliance

Center for Biological Diversity

Defenders of Wildlife

Mono Lake Committee

Plastic Pollution Coalition

Seventh Generation Advisors

Sierra Club California

Sierra Fund, the

Trust for Public Land, the

Analysis Prepared by: Ryan Ojakian / W., P., & W. / (916) 319-2096