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 bank, bed, channel, and 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 bed, channel, or bank bank, bed, channel, and river and stream for purposes of these provisions to mean the land containing the river, stream, or lake during its ordinary course. 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 bed, channel, or bank for purposes of these provisions to mean the land containing the river, stream, or lake during its ordinary course.

Date of Hearing: May 3, 2017

ASSEMBLY COMMITTEE ON APPROPRIATIONS

Lorena Gonzalez Fletcher, Chair

ABPCA Bill Id:AB 947

Author:(Gallagher) – As Amended Ver:April 17, 2017

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

SUMMARY:

This bill adds definitions of a river and stream for the purposes of determining when a lake or streambed alteration (LSA) agreement is required. Specifically, this bill defines a "river and "stream" to mean a body of water that flows at least periodically or intermittently through a bed or channel having banks and supports fish or other aquatic life. This definition includes watercourses having a surface or subsurface flow that supports or have supported riparian vegetation.

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; or
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).

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

Date of Hearing: April 4, 2017

ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE

Eduardo Garcia, Chair

ABPCA Bill Id:AB 947 (

Author:Gallagher) – As Amended Ver:March 27, 2017

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

SUMMARY: Creates a new definition for the boundaries of a river and stream for purposes of determining when a lake or streambed alteration agreement (LSAA) is required. Specifically, this bill:

1. Defines a “river” and “stream” to mean bodies of water that flow at least periodically or intermittently through a bed or channel having banks and supporting fish, other aquatic life, or riparian vegetation. Flows include surface and occasional subsurface flows that support or have supported riparian vegetation.

1. Further defines “bed” to mean the land over which the water of a river, stream, or lake flows at least periodically or intermittently, and which extends to the ordinary high water mark.
2. Further defines “channel” to mean the deepest portion of the bed of a river or stream over which the principal volume of water of the river or stream flows.
3. Further defines “bank” to mean that portion of the land immediately along the side of the bed of a river, stream, or lake that serves to confine the waters of the river, stream, or lake within its bed during their ordinary flows.

EXISTING LAW:

1. Prohibits any activity in a river, stream, or lake, which may alter a streambed. Allows the Department of Fish and Wildlife (DFW) to enter into an 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: Creates a new definition of the boundaries of a river and stream for purposes of determining when an LSAA is required.

Author’s statement: The DFW requires LSAAs 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. To protect fishery resources effectively, there must be a standard for determining when LSAAs are necessary. AB 947 would define the term “bed, channel, or bank” as the land containing the river, stream, or lake during its ordinary course. This definition is consistent with the original intent of the DFW’s authority under §1602, as well as existing standards that have been used for decades based on case law, statute, and existing regulations (CCR §1.72 of Title 14). The DFW supported the scope of this definition when the LSAA Program was reauthorized via SB 418 (Sher, 2003), stating that “the types of streambeds and lakes that fall under the program have been established in regulation (Title 14) for three decades and SB 418 would not change it.” Codifying the existing standard for defining “bed, bank, or channel” 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 LSAA is necessary.

Background: LSAA Basics. The DFW requires an LSAA when it determines that an activity that alters a streambed may substantially adversely affect existing fish or wildlife resources. An LSAA includes measures necessary to protect existing fish and wildlife resources. The DFW may suggest ways to modify a project that would eliminate or reduce harmful impacts to fish and wildlife resources. Before issuing an LSAA, the DFW must comply with the California Environmental Quality Act (CEQA).

Under historical practice, an LSAA could be required for an activity adversely affecting a river, stream or lake, including those that are episodic, 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.

Where Does the Waterway End and the Land Begin? The critical question this bill raises is when should an LSAA apply. The bill answers that question by defining the geography of where the boundaries of a waterway, river, stream, or lake, are. It is challenging from a legal standpoint to define 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 define in the future. If law is going to protect waterways as LSAAs are intended to do then the physical place where enforcement will occur is always going to 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.

Since at least 1987, the code of regulations has provided a definition of a stream, creek, and river that has guided when an LSAA would be required. The code of regulations has the following definition:

“A stream is a body of water that flows at least periodically or intermittently through a bed or channel having banks and supports fish or other aquatic life. This includes watercourses having a surface or subsurface flow that support or has supported riparian vegetation.”

The author contends that the DFW has recently moved away from the case law defined boundaries of a waterway, that are based on the regulations, and has instead applied a new tool with indeterminate waterway boundaries in determining its jurisdiction over when an LSAA is required.

An Unclear Definition. The author argues that this bill will bring consistency to when the DFW can require an LSAA. The author argues that courts have established the term “stream” in relation to an LSAA to be:

“Commonly understood as a watercourse having a source and terminus, banks, and channel, through which water flows, at least periodically. A stream need not flow continuously and sometimes due to climatic conditions may outwardly appear dry. It includes the lands below ordinary high water mark.”

The language in the bill introduces the terms “occasional”, “ordinary high water mark”, and “ordinary flows”. Terms that are by their nature are not well defined, and would not provide clarity in determining the boundaries of a river or stream. Courts have found that “ordinary” means a level of flow that does not include the highest levels of flow and would not include flood levels. When the bill says “occasional subsurface flows” this implies that flows do not include “regular” or “continuous” subsurface flows, conditions that are certainly more likely to support or have supported riparian vegetation than occasional flows.

By introducing new language rather than using the definition that has been in existence in the regulations, language that has been developed by case law, this bill will potentially invalidate portions of existing case law and will introduce uncertainty with the application of the law. The particular language in this bill would seem to limit the scope of when an LSAA would be required as compared to the language that is in the regulations.

In the spirit of consistency the committee may wish to codify the exact definition of a stream, creek, and river that is in the code of regulations. This would better preserve existing case law and would likely be more effective at ensuring the historical scope of an LSAA will be reflected in law.

Prior and Related Legislation:

1. SB 418 (Sher), Chapter 736, Statutes of 2003, revised and reauthorized the LSAA process.
2. SB 1026 (Nielsen), 2016, would have limited diversions and obstructions regulated by LSAA and would have exempted maintenance and repair facilities for instream agricultural diversions. The bill failed passage in the Senate Natural Resources and Water Committee.
3. SB 506 (Nielsen), 2017, would limit diversions and obstructions regulated by a LSAA and would exempt maintenance and repair facilities for instream agricultural diversions. The bill is currently in Senate Natural Resources and Water Committee.

Supporting Arguments:

Supporters argue this bill will help ensure consistency in the enforcement of the DFW LSAA program. It is important that those affected by the LSAA program have a fair understanding of what the law requires. This bill ensures that landowners continue to have an understating of the scope of an LSAA by clarifying the common understanding of a river and stream. Recently actions by the DFW have strayed from the established understanding for determining what constitutes a “bed, channel, or bank.” This drastically expanded the DFW 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.

REGISTERED SUPPORT / OPPOSITION:

Support

California Chamber of Commerce

California Cattlemen’s Association

Rural County Representatives of California

Individual (1)

Opposition

None on file.

Analysis Prepared by: Ryan Ojakian / W., P., & W. /