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SB-12 Streambed alterations.(1995-1996)

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SB12:v90#DOCUMENT

Senate Bill No. 12
CHAPTER 11

An act to amend Sections 1601 and 1603 of, and to add Section 1603.3 to, the Fish and Game Code, relating to streambed alterations, and making an appropriation therefor.

[ Filed with Secretary of State  September 11, 1996. Approved by Governor  September 11, 1996. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 12, Johannessen. Streambed alterations.
Existing law makes it a misdemeanor for any person to substantially divert or obstruct the natural flow or substantially change the bed, channel, or bank of any river, stream, or lake designated by the Department of Fish and Game, or to use any material from the streambeds, without first notifying the department of that activity and until the department has found 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 project or activity. Existing law imposes similar requirements on state and local governmental agencies and public utilities except that the diversion, obstruction, or change is not required to be substantial. Under existing law, those provisions do not apply to emergency work necessary to protect life or property.
This bill would authorize the department to enter into agreements with applicants for a term of not more than 5 years for the performance of activities and operations subject to these provisions, as specified, and to renegotiate those agreements upon mutual consent of the parties. The bill would authorize the department to charge an unspecified fee for entry or renewal of an agreement and a processing fee, as specified. The bill would prohibit conditioning streambed alteration agreements on receipt of another state or federal permit.
The bill would require the department to provide applicants for the agreements with specified information.
Existing law authorizes the Fish and Game Commission to establish the amount of any unspecified fees in an amount sufficient to pay the department’s costs for the entitlements in the bill, which fees are required to be deposited in the Fish and Game Preservation Fund, a continuously appropriated fund.
By authorizing the department to charge fees for specified services performed, the bill would provide for an increase in the funds deposited in a continuously appropriated fund, and would, therefore, make an appropriation.
Appropriation: 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, 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, (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 of receipt of the plans, except that this time may be extended by mutual agreement. Upon 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)  Within 14 days 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 this time 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. If mutual agreement is not reached at the meeting, a panel of arbitrators shall be established. The panel of arbitrators shall be established within seven days 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 day 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 the operation of this section.
(e)  With regard to any project that involves 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 if notice to and agreement with the department was obtained prior to January 1, 1977.
(f)  This section is not applicable to emergency work that is necessary to protect life or property; however, notification by the agency or public utility performing that emergency work shall be made to the department within 14 days of the commencement of the emergency work.
(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 the bed, channel, or bank of any river, stream, or lake 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 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 the activity, notify the person of the existence of the fish and wildlife resource, together with a description thereof, 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 the 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)  Within 14 days of receipt of the department’s proposals, the affected person shall notify the department in writing whether the proposals are acceptable, except that this time may be extended by mutual agreement. If the department’s proposals are not acceptable to the affected person, that person shall so notify the department. Upon request, the department shall meet with the affected person within seven days of receipt of the notification or a time that may be mutually agreed upon for the purpose of developing proposals that are acceptable to the department and the affected person. If mutual agreement is not reached at the meeting, a panel of arbitrators shall be established. However, the appointment of the panel may be deferred by mutual consent of the parties. The panel shall be established within seven days of the 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 chairperson. The panel may settle disagreements and make binding decisions regarding fish and wildlife modifications. The arbitration shall be completed within 14 days from the day that the composition of the panel is established, unless the time 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 chairperson are to 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 of the submission 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 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 the resources are adversely affected by the activity conducted under the agreement. This subdivision applies if notice to and agreement with the department was obtained prior January 1, 1977.
(f)  This section is not applicable to emergency work that is necessary to protect life or property; however, notification by the person performing that emergency work shall be made to the department within 14 days of the commencement of the emergency work.
(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.

 Section 1603.3 is added to the Fish and Game Code, to read:

1603.3.
 The department shall provide all applicants for an agreement pursuant to Section 1601 or 1603 with a cover letter which sets forth all of the following information:
(a)  The time period for review of the application.
(b)  An explanation of the applicant’s right to object to conditions proposed by the department.
(c)  The time period within which objections may be made in writing by the applicant to the department.
(d)  The time period within which the department is required to respond to the applicant’s objections, and that the response must be in writing.
(e) An explanation of the right of the applicant to appeal the department’s imposition of conditions for the agreement, including the right to arbitration.
(f)  The procedures for arbitration and the timelines set forth in statute for using the arbitration procedure, including, but not limited to, information about the payment requirements for the arbitrator’s fees.
(g)  The current fee schedule for obtaining the agreement, including, but not limited to, an explanation of how the fees are calculated.