Court Makes DFG Adfd CEQA to Stream Permit Reviews
Forced by a lawsuit to incorporate the California Environmental Quality Act process into the way it issues streambed and lake alteration permits, the California Department of Fish & Game has issued new procedures that will require more property owners to do greater environmental review before they undertake such projects.
Every permit (often called a "1600" for a section of the Fish and Game Code) will be examined to see how CEQA applies, according to Jim Steele, a DFG program manager in Sacramento who is overseeing the new procedures intended to comply with a court order.
Fish & Game regulations previously allowed the agency to grant permits for such alterations without requiring review under CEQA, but a series of legal challenges in Mendocino and Sonoma counties led to the change. Final regulations have not yet been issued, but DFG officials and project proponents have already acknowledged there will be some delays as new paperwork and procedures are worked out.
Steele expects Fish & Game will issue new regulations for public review next year. The new interim procedures began in May, following an order by Mendocino County Superior Court Judge Conrad Cox in Mendocino Environmental Center v. California Department of Fish & Game, case No. CV76761.
In that case, environmentalists used a proposal to remove salvaged lumber from estuaries and rivers to launch a full-scale attack on DFG's failure to require CEQA review for the permits. DFG argued that its regulations under Section 1603 made its handling of the lumber salving proposal a ministerial act, not a discretionary act, so no CEQA analysis was required, according to environmental attorney Paul Carroll. But the court ruled that this was clearly a discretionary act, so DFG agreed to change its procedures, Carroll said.
The impact is expected to be felt most where DFG is the lead agency for a project. The agency will require CEQA review for undertakings such as building a bridge across a creek, adding rip rap to prevent erosion, or altering a stream's flow for agricultural irrigation,
"It looks like they're going to be a lot more stringent," said Peggy Rose, project manager for the Ventura County Resource Conservation District. Rose is planning a streambed alteration to revitalize and stabilize a stream, similar to a project she did several years ago. On the earlier project, DFG did not require a permit, but this time they've already told her that the district needs one. She expects it will take several months to get the permit.
But DFG can develop five-year memorandums of understanding for maintenance to streamline the review process, Steele said.
Morgan Wehtje, DFG biologist for Ventura County, said most developers have dealt with the new procedures well. Wehtje said she expected the new rules to delay permit processing by up to a month.
Requiring an EIR, however, could lead to delays of three months to a year for a project, Steele said. But EIRs are rarely, if ever, required for such permits, he added.
Steele said that 15 new employees, including nine environmental specialists, have been added to deal with the increased CEQA work for the permits. He said the price of the permits is expected to rise to cover the additional costs. The current base price of the permits is $132, with an inflation adjustment expected soon.
Wehtje said one impact from the changes has been in projects that were approved in the past that are now ready to build. Environmental review documents for the past 10 years said the issue of streambed or lake alteration permits will be addressed when the time to build arrives, she explained. Now, those projects face more stringent review. But Steele said that in many cases, CEQA studies done by other agencies have been adequate to let the agency issue permits.
Under the new procedure, those seeking to alter a streambed or lake are encouraged to meet with their regional office of the DFG, after filling out two forms and paying fees on the alteration project. The DFG will review the forms and determine whether a Lake or Streambed Alteration Agreement is required. Legal language on the alterations is spelled out under Sections 1600-1603 of the Fish and Game Code.
But those new review procedures drew the criticism of Tara Mueller, an attorney for several environmental groups including the Sierra Club. She said DFG is not commencing CEQA review until negotiated agreements are completed, making it harder for the public to review what is occurring.
"That makes CEQA a post-hoc rationalization because they've already agreed on mitigation" before they've done environmental review, she said. Mueller said a better time to commence CEQA review would be when a landowner submits a notice of an alteration to DFG.
But Steele said the process is a good use of his agency's limited resources, and he said, "it gets a much more cooperative applicant."
Curtis Alling , chair of the legislative review committee of the Association of Environmental Professionals, said he hasn't seen much of an impact from the new procedures. Fish & Game field biologists seem to be involving themselves sooner and more proactively in the process, doing things like defining mitigation for streambed impacts and providing input sooner.
"[It] encourages better mitigation planning," he said.
Mueller noted that under the new procedures, DFG is only the lead agency if it is providing the only permit for a project. If a development is part of a bigger project, then no separate notice is issued and there is a smaller chance that there will be analysis of riparian impacts by the lead agency.
Land-use attorney Michael Zischke of San Francisco said he expects the new procedures to affect primarily public agencies. "A typical new development is going to do a CEQA review through the land-use process, and then Fish & Game is simply a responsible agency," he said. "Where it will become more of an issue, I think, is in public agency maintenance ... and also to some extent maybe some private activities of existing operations where there isn't a prior environmental review for the operation."
Curtis Alling, Association of Environmental Professionals, (916) 414-5800.
Paul Carroll, attorney, (650) 322-5652.
Tara Mueller, Environmental Law Foundation, (510) 208-4555.
Peggy Rose, Ventura County Resource Conservation District, (805) 386-4685.
Jim Steele, Department of Fish & Game, (916) 653-1485.
Morgan Wehtje, DFG, (805) 491-3571.
Michael Zischke, Landels, Ripley & Diamond, (415) 512-8700.
Web site: www.dfg.ca.gov/wahcb/1600.html