The California Department of Fish and Wildlife regulates disturbance to streambeds and riparian habitats under section 1600 to 1617 of the Fish and Game Code. An agreement is typically needed for development in these areas.
Section 1602 of the California Department of Fish and Wildlife (CDFW) code deals with permits – functioning more like a contract agreement – for altering steambeds and/or riparian habitats. Riparian zones are lands that occur along the edges of rivers, streams, lakes, and other water bodies. They differ from the surrounding uplands because their soil and vegetation are shaped by the presence of water.
If a water district, city, county, or private individual seeks approval for a project in an area categorized as a lake, stream, river, or associated riparian zone, the first step is to map the boundaries of the CDFW’s jurisdictional limits. Typically, this jurisdiction is the bed and bank of the water channel and the dripline of associated riparian habitats.
When mapping the boundaries of CDFW jurisdiction, you must first identify the bed – the bottom of the channel – as well as the channel bank. While the streambed is easy to identify, the channel bank is a murkier jurisdictional question, as the CDFW is relatively vague in these boundaries.
This subjectivity means the most difficult part of a streambed alteration agreement is often determining the jurisdictional delineation limits. However, once this limit is agreed upon, the next step is submitting an application to the CDFW’s Environmental Permit Information Management System (EPIMS).
Requirements for Streambed Alteration Application
The application provides information like project location, description, existing condition, and biological resources. For example, if an endangered bird was known to exist on the project site, the application must reflect that finding. Here are other examples of required application information:
- Biological Resources Assessment
- Water quality information is optional, but as the CDFW examines water quality information as part of the application package, providing it is advisable.
- Additional permit information that may be necessary for the project to move forward, including approval from the Army Corps of Engineers, U.S. Fish and Wildlife Service, or National Marine Fisheries Service.
- Compensatory mitigation information is required to ensure a no net less (e.g., minimum of 1:1, or more depending on consultation with CDFW) for each acre of impacted land under CDFW jurisdiction. This means that if one acre is impacted, you must propose a mitigation plan for at least one acre either on-site or at an off-site approved mitigation bank.
- California Environmental Quality Act (CEQA) approval information is required if applicable, or the notice of determination and fee-filing receipt if the project is still undergoing CEQA approval. While documentation is not required for a successful application, it is needed to secure the fully executed streambed alteration agreement.
- Application fees vary in terms of project but are typically required to process the application. Application fees are determined by the total cost of the proposed project.
Steps Toward Streambed Alteration Agreement Approval
Step 1: Delineation, completing surveys and technical studies which may include water quality management, hydrology, jurisdictional delineation, biological reports, and others.
Step 2: The submitting agency or its representing consultant submits the agreement application.
Step 3: After submission, the CDFW has 30 calendar days to review and deem an application complete or incomplete. If the department fails to issue an agreement approval during that time, the project is automatically approved due to streamlining regulations via an Operation of Law Letter.
Step 4: The department could issue a draft streambed agreement in that time, and if so, you have 30 days to respond, indicating whether its conditions are acceptable or unacceptable. Consultants extensively review this draft as it can contain unfavorable or unnecessary conditions.
Step 5: When the agreement is in an acceptable state, the next step is to log into the EPIMS system, sign the agreement, and acknowledge that you have no further comments regarding the conditions.
Step 6: One you have an approved, valid streambed agreements, you are clear to begin your project, provided you have satisfied all special conditions in the agreement.
Expertise in Navigating Streambed Alteration Agreements
Consider this example: In a recent warehouse project, a client chose to contact CDFW on their own regarding the drafted alteration agreement. This was done without the knowledge or coordination of their partner consultant team. This agreement contained conditions that the consultant team was prepared to argue against on the client’s behalf, believing that they were unnecessarily intrusive for the project at hand.
The draft called for the mitigation and removal of the Mojave ground squirrel – a state-protected species – from the project site, even though all studies had shown this species was absent from the site. Instead of allowing the consultant to review and then eliminate the mitigation requirement from the agreement, it remained, as the client believed, arguing this condition was not time efficient.
Instead, the opposite was true. Because the Mojave ground squirrel condition was still in the agreement, the client was required to develop and complete all mitigation plans. The client was also required to put up a $4.5 million deposit on additional property to mitigate for the ground squirrel – all for a species that did not inhabit the site.
If the client had followed advice and allowed the consultant to manage all agreement revisions, time and financial resources could have been cut significantly. This example highlights the value of working with a team of highly knowledgeable experts in streambed alteration agreements, as well as CEQA and related regulations.
Firms like FirstCarbon Solutions (FCS) have a deep bench of professionals who understand exactly what is needed to achieve a streambed alteration agreement in a timely, cost-effective manner. They act as your representative in all regulatory dealings, always keeping your best interests top of mind.
