AB 3102: Lake or streambed alteration agreements: limitation on mitigation measures: environment.
- Session Year: 2017-2018
- House: Assembly
- Latest Version Date: 2018-03-22
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 the department determines that the activity may substantially adversely affect an existing fish or wildlife resource. Existing law requires a final agreement to include reasonable measures necessary to protect the fish or wildlife resource.
The California Environmental Quality Act requires a lead agency, as defined, to prepare, or cause to be prepared, and certify the completion of, an environmental impact report on a project that it proposes to carry out or approve that may have a significant effect on the environment or to adopt a negative declaration if it finds that the project will not have that effect. The act also requires a lead agency to prepare a mitigated negative declaration for a project that may have a significant effect on the environment if revisions in the project would avoid or mitigate that effect and there is no substantial evidence that the project, as revised, would have a significant effect on the environment. The act requires the lead agency to provide a responsible agency, as defined, with specified notice and opportunities to comment on a proposed project. The act requires a responsible agency, before the close of the public review period for a draft environmental impact report or mitigated negative declaration, to submit to the lead agency mitigation measures that would mitigate impacts to resources within the responsible agencys jurisdiction, as specified, or to refer the lead agency to appropriate, readily available guidelines or reference documents.
This bill, in the case of an activity for which an environmental impact report, negative declaration, or mitigated negative declaration has been certified or adopted, would limit the measures to protect a fish or wildlife resource that may be proposed or included in a lake or streambed alteration agreement to the mitigation measures, if any, contained in the certified or adopted environmental document, provided that the department, in the environmental review process preceding certification or adoption of the document, has been provided the opportunity for consultation and comment appropriate for a responsible agency pursuant to the California Environmental Quality Act. The bill would also make a nonsubstantive conforming change.
Existing law requires the State Air Resources Board, in consultation with the Bureau of Automotive Repair and a specified review committee, to adopt regulations requiring owners or operators of heavy-duty diesel motor vehicles to perform regular inspections of their vehicles for excessive emissions of smoke. Existing law requires the state board, in consultation with the State Energy Resources Conservation and Development Commission, to adopt regulations requiring heavy-duty diesel motor vehicles to use emission control equipment and alternative fuels.This bill would make technical, nonsubstantive changes to those provisions.Existing law requires the State Air Resources Board, in consultation with the Bureau of Automotive Repair and a specified review committee, to adopt regulations requiring owners or operators of heavy-duty diesel motor vehicles to perform regular inspections of their vehicles for excessive emissions of smoke. Existing law requires the state board, in consultation with the State Energy Resources Conservation and Development Commission, to adopt regulations requiring heavy-duty diesel motor vehicles to use emission control equipment and alternative fuels.
This bill would make technical, nonsubstantive changes to those provisions.
(a)An entity shall not 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, unless all of the following occur:
(1)The department receives written notification regarding the activity in the manner prescribed by the department. The notification shall include, but is not limited to, all of the following:
(A)A detailed description of the projects location and a map.
(B)The name, if any, of the river, stream, or lake affected.
(C)A detailed project description, including, but not limited to, construction plans and drawings, if applicable.
(D)A copy of any document prepared pursuant to Division 13 (commencing with Section 21000) of the Public Resources Code.
(E)A copy of any other applicable local, state, or federal permit or agreement already issued.
(F)Any other information required by the department.
(2)The department determines the notification is complete in accordance with Chapter 4.5 (commencing with Section 65920) of Division 1 of Title 7 of the Government Code, irrespective of whether the activity constitutes a development project for the purposes of that chapter.
(3)The entity pays the applicable fees, pursuant to Section 1609.
(4)One of the following occurs:
(A)(i)The department informs the entity, in writing, that the activity will not substantially adversely affect an existing fish or wildlife resource, and that the entity may commence the activity without an agreement, if the entity conducts the activity as described in the notification, including any measures in the notification that are intended to protect fish and wildlife resources.
(ii)Each region of the department shall log the notifications of activities where no agreement is required. The log shall list the date the notification was received by the department, a brief description of the proposed activity, and the location of the activity. Each item shall remain on the log for one year. Upon written request by any person, a regional office shall send the log to that person monthly for one year. A request made pursuant to this clause may be renewed annually.
(B)The department determines that the activity may substantially adversely affect an existing fish or wildlife resource and issues a final agreement to the entity that includes includes, subject to the limitation in subdivision (b), reasonable measures necessary to protect the resource, and the entity conducts the activity in accordance with the agreement.
(C)A panel of arbitrators issues a final agreement to the entity in accordance with subdivision (b) of Section 1603, and the entity conducts the activity in accordance with the agreement.
(D)The department does not issue a draft agreement to the entity within 60 days from the date notification is complete, and the entity conducts the activity as described in the notification, including any measures in the notification that are intended to protect fish and wildlife resources.
(b)If an environmental impact report, negative declaration, or mitigated negative declaration is certified or adopted for an activity described in subdivision (a) pursuant to the California Environmental Quality Act (Division 13 (commencing with Section 21000) of the Public Resources Code), and, in the environmental review process preceding certification or adoption of that environmental document, the department has been provided the opportunity for consultation and comment appropriate for a responsible agency, as defined in Section 21069 of the Public Resources Code, pursuant to the California Environmental Quality Act, any authority in this chapter to propose, or to include in an agreement, measures to protect a fish and wildlife resource shall be limited to the proposal or inclusion of applicable mitigation measures, if any, adopted in the environmental document.
(b)(c)(1)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 after the initial notification and agreement, unless the department determines either of the following:
(A)The work described in the agreement has substantially changed.
(B)Conditions affecting fish and wildlife resources have substantially changed, and those resources are adversely affected by the activity conducted under the agreement.
(2)This subdivision applies only if notice to, and agreement with, the department was attained prior to before January 1, 1977, and the department has been provided a copy of the agreement or other proof of the existence of the agreement that satisfies the department, if requested.
(c)(d)Notwithstanding subdivision (a), the department is not required to determine whether the notification is complete or otherwise process the notification until the department has received the applicable fees.
(d)(e)(1)Notwithstanding subdivision (a), an entity shall not be required to obtain an agreement with the department pursuant to this chapter for activities authorized by a license or renewed license for cannabis cultivation issued by the Department of Food and Agriculture for the term of the license or renewed license if all of the following occur:
(A)The entity submits all of the following to the department:
(i)The written notification described in paragraph (1) of subdivision (a).
(ii)A copy of the license or renewed license for cannabis cultivation issued by the Department of Food and Agriculture that includes the requirements specified in Section 26060.1 of the Business and Professions Code.
(iii)The fee specified in paragraph (3) of subdivision (a).
(B)The department determines in its sole discretion that compliance with the requirements specified in Section 26060.1 of the Business and Professions Code that are included in the license will adequately protect existing fish and wildlife resources that may be substantially adversely affected by the cultivation without the need for additional measures that the department would include in a draft streambed alteration agreement in accordance with Section 1603.
(C)The department notifies the entity in writing that the exemption applies to the cultivation authorized by the license or renewed license.
(2)The department shall notify the entity in writing whether the exemption in paragraph (1) applies to the cultivation authorized by the license or renewed license within 60 days from the date that the notification is complete and the fee has been paid.
(3)If an entity receives an exemption pursuant to this subdivision and fails to comply with any of the requirements described in Section 26060.1 of the Business and Professions Code that are included in the license, the failure shall constitute a violation under this section, and the department shall notify the Department of Food and Agriculture of any enforcement action taken.
(e)(f)It is unlawful for any entity to violate this chapter.
SEC. 2.Section 1616 of the Fish and Game Code is amended to read:1616.Any agreement or any memorandum of understanding executed by the department pursuant to this chapter prior to before January 1, 2004, shall be subject to, and shall be governed by, the provisions of this chapter that were in existence prior to before that date. This section does not apply to paragraph (2) of subdivision (b) (c) of Section 1602, requiring an entity to provide a copy or other satisfactory evidence of an agreement attained prior to before January 1, 1977, upon the request of the department.
SECTION 1.Section 43701 of the Health and Safety Code is amended to read:43701.(a)(1)The state board, in consultation with the bureau and the review committee established pursuant to subdivision (a) of Section 44021, and after a public hearing, shall adopt regulations that require that owners or operators of heavy-duty diesel motor vehicles perform regular inspections of their vehicles for excessive emissions of smoke. The inspection procedure, the frequency of inspections, the emission standards for smoke, and the actions the vehicle owner or operator is required to take to remedy excessive smoke emissions shall be specified by the state board. Those standards shall be developed in consultation with interested parties. The smoke standards adopted under this subdivision shall not be more stringent than those adopted under Chapter 5 (commencing with Section 44000).(2)(A)On or before December 31 of each year, a fleet shall comply with the regulations and standards for that calendar year.(B)For purposes of this paragraph, fleet means any group of two or more heavy-duty diesel-fueled vehicles that are owned or operated by the same person.(b)The state board, in consultation with the State Energy Resources Conservation and Development Commission, and after a public hearing, shall adopt regulations that require that heavy-duty diesel motor vehicles subject to subdivision (a) utilize emission control equipment and alternative fuels. The state board shall consider, but not be limited to, the use of cleaner burning diesel fuel, or other methods that will reduce gaseous and smoke emissions to the greatest extent feasible, taking into consideration the cost of compliance. The regulations shall provide that any significant modification of the engine necessary to meet these requirements shall be made during a regularly scheduled major maintenance or overhaul of the vehicles engine. If the state board requires the use of alternative fuels, it shall do so only to the extent those fuels are available.(c)The state board shall adopt emissions standards and procedures for the qualification of any equipment used to meet the requirements of subdivision (b), and only qualified equipment shall be used.(d)To the extent permissible under federal law, the owner or operator of any commercial motor truck, as defined in Section 410 of the Vehicle Code, with a gross vehicle weight rating (GVWR) greater than 10,000 pounds that enters the state for the purposes of operating in the state shall maintain, and provide upon demand to enforcement authorities, evidence demonstrating that its engine met the federal emission standards applicable to commercial heavy-duty engines for that engines model-year at the time it was manufactured, pursuant to the protocol and regulations developed and implemented pursuant to subdivision (e).(e)The state board, in consultation with the Department of the California Highway Patrol, shall develop, adopt, and implement regulations establishing an inspection protocol for determining whether the engine of a truck subject to the requirements of subdivision (d) met the federal emission standard applicable to heavy-duty engines for that engines model-year at the time it was manufactured.(a)(1)Not later than July 15, 1992, the The state board, in consultation with the bureau and the review committee established pursuant to subdivision (a) of Section 44021, shall, after a public hearing, and after a public hearing, shall adopt regulations that require that owners or operators of heavy-duty diesel motor vehicles perform regular inspections of their vehicles for excessive emissions of smoke. The inspection procedure, the frequency of inspections, the emission standards for smoke, and the actions the vehicle owner or operator is required to take to remedy excessive smoke emissions shall be specified by the state board. Those standards shall be developed in consultation with interested parties. The smoke standards adopted under this subdivision shall not be more stringent than those adopted under Chapter 5 (commencing with Section 44000).
(2)(A)On or before December 31 of each year, a fleet shall comply with the regulations and standards for that calendar year.
(B)For purposes of this paragraph, fleet means any group of two or more heavy-duty diesel-fueled vehicles that are owned or operated by the same person.
(b)Not later than December 15, 1993, the The state board shall, board, in consultation with the State Energy Resources Conservation and Development Commission, and after a public hearing, shall adopt regulations that require that heavy-duty diesel motor vehicles subject to subdivision (a) utilize emission control equipment and alternative fuels. The state board shall consider, but not be limited to, the use of cleaner burning diesel fuel, or other methods that will reduce gaseous and smoke emissions to the greatest extent feasible, taking into consideration the cost of compliance. The regulations shall provide that any significant modification of the engine necessary to meet these requirements shall be made during a regularly scheduled major maintenance or overhaul of the vehicles engine. If the state board requires the use of alternative fuels, it shall do so only to the extent those fuels are available.
(c)The state board shall adopt emissions standards and procedures for the qualification of any equipment used to meet the requirements of subdivision (b), and only qualified equipment shall be used.
(d)To the extent permissible under federal law, commencing January 1, 2006, the owner or operator of any commercial motor truck, as defined in Section 410 of the Vehicle Code, with a gross vehicle weight rating (GVWR) greater than 10,000 pounds that enters the state for the purposes of operating in the state shall maintain, and provide upon demand to enforcement authorities, evidence demonstrating that its engine met the federal emission standards applicable to commercial heavy-duty engines for that engines model-year at the time it was manufactured, pursuant to the protocol and regulations developed and implemented pursuant to subdivision (e).
(e)The state board, not later than January 1, 2006, in consultation with the Department of the California Highway Patrol, shall develop, adopt, and implement regulations establishing an inspection protocol for determining whether the engine of a truck subject to the requirements of subdivision (d) met the federal emission standard applicable to heavy-duty engines for that engines model-year at the time it was manufactured.
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Date
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Status
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| Apr 10, 2018 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Apr 2, 2018 | Re-referred to Com. on W.,P., & W. |
| Mar 22, 2018 | Referred to Coms. on W.,P., & W. and NAT. RES. |
| Feb 17, 2018 | From printer. May be heard in committee March 19. |
| Feb 16, 2018 | Read first time. To print. |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
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| California Forestry Association | ** Support | Apr 6, 2018 |
Date of Hearing: April 10, 2018
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Eduardo Garcia, Chair
ABPCA Bill Id:AB 3102 (
Author:Gray) – As Amended Ver:March 22, 2018
SUBJECT: Lake or streambed alteration agreements: limitation on mitigation measures: environment
SUMMARY: Limits the Department of Fish and Wildlife (DFW) to the mitigation measures contained in a certified or adopted environmental document pursuant to the California Environmental Quality Act (CEQA) when the DFW requires a lake or streambed alteration agreement (LSAA).
EXISTING LAW:
- Generally, provides that all discretionary projects are subject to environmental review under CEQA. Defines a responsible agency under CEQA to be a public agency, other than the lead agency, to have responsibility for carrying out or approving a project. Specifies that a responsible agency complies with CEQA by considering an environmental impact report (EIR) or negative declaration.
- 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) for a project that is CEQA compliant. The LSAA can permit activities that alter a streambed if reasonable measures to protect fish and wildlife resources are included.
- Requires an entity to notify the DFW prior to commencing any activity that may substantially alter a stream bed.
FISCAL EFFECT: Unknown.
COMMENTS: Limits the Department of Fish and Wildlife (DFW) to the mitigation measures contained in a certified or adopted environmental document pursuant to the California Environmental Quality Act (CEQA) when the DFW requires a lake or streambed alteration agreement (LSAA).
Author’s Statement:
The robust CEQA process, which has been in place for more than forty years, requires responsible agencies to respond to consultation by the lead agency in order to assist the lead agency in preparing adequate environmental documents for a project. This bill does not interfere or dismantle that process.
When local governments take projects through the CEQA process to determine necessary mitigations, they benefit from the public’s involvement in the process and the expertise of our state agencies in making the final decision. Several public agencies, including the Air Resources Board, Department of Transportation, and the State Water Board, regularly fulfill their statutory obligations to review and comment on draft CEQA documents before issuing permits that are dependent upon the completion of CEQA. In the case cited as the impetus of the bill, the Department of Fish and Wildlife (DFW) opted not, over a period of five years, to fulfill their statutory obligation to bring forward any mitigation concerns, and instead waited until the issuance of the final Lake Streambed Alteration Agreement to bring forward concerns that could have been addressed during the public CEQA process.
By bringing the Department of Fish and Wildlife into the existing CEQA process (and the same process that other state agencies are subject to), this bill will ensure that the Department’s expertise will be included in and folded into the mitigation and other protection protocols in the most orderly and timely fashion.
Background: 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. 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 flood plain 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 the full 5 years. More than 80 percent of permits are for projects that cost greater than $350,000. The LSAA regulations set out a fee structure for LSAAs that is intended to cover the cost of the program.
Origin of the Proposal. The bill originates out of the environmental process that occurred for a proposed new sand and gravel mine by Granite Construction Company (Granite) in Kern County. The CEQA process began in April 2011 and concluded in September 2016 and entailed a full Environmental Impact Report (EIR). The process included the required outreach to the DFW, as a responsible agency, and entailed notice to the DFW four distinct times.
On November 22, 2016, Granite provided notification to the DFW for purposes of an LSAA of its intent to proceed with phase one of the three phase project. The notification included the certified EIR and all supporting studies. On February 1, 2018, Granite received a draft LSAA from the DFW. The draft LSAA issued by the DFW would require Granite to restore and maintain habitat and has a long-term cost of over $30.7 million.
If this bill were to become law and Granite were to postpone moving forward with phase one of the project until after it took effect, the bill would likely significantly limit the required $30.7 million mitigation required by the DFW. Additionally, if the bill were to become law it would certainly limit the mitigation required for phase two and three of the project.
CEQA Compliance First, LSAA Second. Among other things, CEQA requires a general description of a project, requires all responsible agencies to be notified of a project, and comment where the responsible agency is asked to approve the CEQA document. The DFW has funds to review approximately 50 percent of projects engaged in the CEQA process. The constraint on funds forces the DFW to use judgment as to which CEQA proceedings are most likely to require DFW approval or permits.
The DFW cannot issue an LSAA on a project until the CEQA process has been completed. The LSAA requires a specific description of a project that cannot be completed until the general scope of the project has been determined through CEQA compliance.
Precedent for Other Permits. There are a number of permits that may be required of a project including permits from the DFW, State Water Resources Control Board, California Air Resources Control Board, the California Coastal Commission, and the California Department of Transportation that cannot be issued until a CEQA document is approved. To date, the law does not specify that those permits are limited to mitigation measures identified in the CEQA process. This bill could establish the precedence for other permits to be limited to the mitigation requirements contained in the CEQA process.
Compliance with California Environmental Quality Act (CEQA) is Distinct from Permit Process. CEQA requires the identification of significant environmental impacts of discretionary projects to avoid or mitigate those impacts, if feasible. There are numerous paths a project proponent can take to comply with CEQA that range from a full Environmental Impact Report (EIR), to a Negative Declaration (Neg. Dec.). An EIR identifies and examines the likely effects of a project, and proposes measures to avoid, mitigate, or offset them. The timeframe to complete a certified full EIR is measured in years with a completion timeframe of less than 3 years being unusual. A Neg. Dec. is a document that states that there is no substantial evidence that the project will have a significant effect on the environment. The timeframe to complete a Neg. Dec. is measured in months with a completion timeframe of 3 months being achievable.
Compliance with CEQA is not the same as compliance with other required permits. There may be a case where a project proponent knowingly makes choices to comply with CEQA with the intent that choice will be addressed in greater detail in the permitting process. CEQA requires permitting agencies to respond to a request for consultation in the CEQA process with the idea that it will improve coordination through the entire environmental regulatory process. CEQA does not require permitting agencies to address specific permits in the CEQA process. This bill raises questions about the role of permits relative to the CEQA process, and would limit LSAA permits to only issues addressed in the CEQA process.
Prospective vs. Retrospective. A certified CEQA document lives for an undefined period of time, sometimes decades or more. This bill requires that if the DFW had an opportunity for consultation and comment in a certified CEQA document, then an LSAA will be limited to only the applicable mitigation in the certified CEQA document.
Under existing law, as a responsible agency, the DFW is required to be provided the opportunity to comment in the CEQA process. In order for a project to be eligible for an LSAA the project must have completed the CEQA process. In practice this would mean that all of the 2,200 existing LSAA and any future LSAA would be limited to only the applicable mitigation measures in the certified CEQA document.
Considerations. The committee suggests the author consider an approach to require the DFW to provide feedback on likely LSAA mitigation requirements early in the environmental process.
Double Referral: This bill has been double referred to Assembly Natural Resources.
Supporting Arguments: Proponents recently released the 2018 Forest Health Initiative, identifying seven different areas of proposed actions which represents a comprehensive approach to forest management. This bill is compatible with one of the seven principles discussed in the 2018 Forest Health Initiative, specifically efficiencies in regulation.
REGISTERED SUPPORT / OPPOSITION:
Support
California Forestry Association
Opposition
None on file
Analysis Prepared by: Ryan Ojakian / W., P., & W. / (916) 319-2096
Bill Author
Bill Co-Author(s):