COUNTY OF SAN MATEO

Inter-Departmental Correspondence

County Manager's Office

DATE:

June 11, 2003

BOARD MEETING DATE:

June 17, 2003

TO:

Honorable Board of Supervisors

FROM:

John Maltbie, County Manager

SUBJECT:

County Manager Report #11-SB 418 (Sher), Fish and Wildlife Streambed Alteration Agreements

Recommendation

Adopt a resolution of support if amended for SB 418 (Sher) regarding fish and wildlife streambed alteration agreements.

Background

Existing law requires a governmental agency or public utility that proposes a project that would divert, obstruct, or change the natural flow of, or result in the disposal of debris in certain rivers, streams or lakes designated by the California Department of Fish and Game, to submit plans and other information to the Department of Fish and Game and to follow prescribed procedures under a Streambed Alteration Agreement. Under existing law, a violation of the Fish and Game Code is a crime.

This bill would revise the Streambed Alteration Agreement process by doing all of the following:

1.

Removing the cap on processing fees charged by the State.

2.

Increasing the processing time for Agreements from 30 calendar days to 60 business days.

3.

Making the notification and agreement process uniform for all applicants (governmental, public utilities and private persons).

4.

Establishing civil penalties for violations of the Section.

5.

Adding a provision that makes non-negotiable and not subject to arbitration measures required by the Department of Fish and Game that cover a project mandated by a court order or judgment or an administrative order by a state or federal governmental agency to resolve a violation of the Section or other state or federal law.

The current minimum fee for Streambed Alteration Agreements is $154, with a maximum ("cap") of $2,400. Existing law allows 30 calendar days for the Department of Fish and Game to propose modifications to planned work, termed "measures to protect fish and wildlife." The primary intent of this bill, according to the Department's Deputy Director of Legislative Affairs, is to recover the actual costs associated with administering the program and to allow additional processing time to relieve the workload on Streambed Alteration program staff.

The County of San Mateo has submitted 18 notifications to the Streambed Alteration program since 2001, and paid approximately $4,500 in fees. Processing time for agreements has averaged 6 months. Several draft Agreements included measures that would have increased project implementation costs by up to 500%. County staff greatly reduced these potential costs and avoided arbitration by working cooperatively with Fish and Game staff, but did so at a substantially higher investment in County staff time.

Discussion

The bill presents an important opportunity for County staff to work with the Department of Fish and Game to better protect fish and wildlife resources while streamlining project approvals and reducing costs to the taxpayers. The Streambed Alteration program is currently understaffed and under-funded, and operates without a coherent set of regulations. Fish and Game staff attempt to process Agreements within the allotted time, but rely on limited personal knowledge of San Mateo County, its resources and the high standards of watershed protection that the County has established.

County staff applies for Agreements as soon as project plans are sufficiently developed. For maintenance type projects, applications are generally submitted immediately after the winter season. Agreements can be completed in time to allow the work to proceed during the summer of the same year. Allowing Fish and Game staff an additional 30 calendar days to process Agreements would have a negligible effect on County operations, and may result in reviewers having sufficient time to determine more appropriate measures to protect fish and wildlife resources. If the bill is passed allowing 60 business days, however, the net increase in Agreement processing time would be 8 weeks, which would potentially delay maintenance work by up to one year.

County staff does not oppose making the notification and agreement process uniform for all applicants. In fact, this process could be expanded to make uniform the various environmental measures. Fish and Game staff include "measures to protect fish and wildlife" in draft Agreements. For example, program staff consistently limit the work period to between June 15 and September 15 as a protective measure, regardless of the location, nature of the work, performance standards required by the County, the presence or absence of endangered or threatened species, weather and other factors. This compression of the work period limits the County's ability to utilize its own forces, and reduces competition among contractors for the work, resulting in higher construction costs. Other measures proposed by Fish and Game would have increased the project cost by over 500%, or required a complete redesign of the project. Some maintenance projects have been abandoned due to the extraordinary extra cost and effort that would have been required

The bill should require the Department of Fish and Game to work with the regulated community to establish a coherent set of regulations, and should allow for arbitration of protective measures in all cases. This will ensure that fish and wildlife resources are properly protected, and that local government is able to maintain its facilities to adequately protect public health and safety.

County staff is not opposed to the expansion of civil penalties as proposed in the bill.

AB 418 would add a provision that makes non-negotiable and not subject to arbitration measures imposed by the Department of Fish and Game that are incorporated into a court order, judgement or administrative order to resolve a violation of the section or other state/federal law. County staff opposes such efforts. They raise the concern that without negotiation and arbitration, the measures imposed could be completely unrelated and out of proportion to the violation and with no recourse for the County.

The bill should also allow the Department of Fish and Game to enter into Agreements for periods longer than 5 years, and to allow certain types of work to proceed without agreements if they determine that there will be no impact on fish and wildlife resources. This would allow for greater efficiencies while providing the desired environmental protections.

County staff, with the recommendation of the Legislative Committee make the following suggested amendments:

1.

Raising the fee cap but establishing a reasonable and pro-ratable schedule of fees.

2.

Increasing the time for providing draft Agreements from 30 calendar days to 60 calendar days.

3.

Requiring the development of regulations, including standardized measures, to enforce the chapter, and allowing public review and comment prior to adoption of the regulations.

4.

Allowing arbitration of all measures imposed by the Department of Fish and Game.

5.

Continuing the ability of the Department of Fish and Game to allow certain work to proceed without an Agreement.

6.

Allowing the Department of Fish and Game to enter into Agreements for periods longer than five years, subject to periodic review and update.

Vision Alignment

Support of SB 418 (Sher) with the requested amendments furthers the County's commitment to preserve and provide people access to important natural resources and furthers Goal #14 that important natural resources are preserved and enforced through environmental stewardship.

Fiscal Impact

There will be an initial increase in costs for County projects requiring Streambed Alteration Agreements due to the fee increase. The amount of this increase is not yet known. Costs may be reduced in the future if the bill is amended to allow for Agreements longer than five years, and if regulations are adopted that allow for more reasonable protective measures.