While there is a current trend in lessening federal environmental regulations under the new administration, state agencies, such as the California Department of Fish and Wildlife, are prepared to step in and fill the regulatory gap. Furthermore, it is likely that these state agencies will put in place significantly more expansive sets of rules to counter major changes at the federal level.
Local agencies and the regulated public have found themselves subject to CDFW jurisdiction via the Lake and Streambed Alteration Program (LSA) on projects outside of the traditional scope of the LSA. The most significant and often abused component of the Section 1600 code by the CDFW is the ability to regulate project activities when an action could “deposit/dispose of debris, waste, pavement where it may pass into a river, stream or lake”.
CDFW has recently claimed jurisdiction over portions of City stormwater collection systems, wetlands more than 4000 feet away from creeks and vernal wetlands located in uplands. Its not uncommon for CDFW regulators to demand landowners apply for a LSA agreement for activities in agricultural ditches and within flood plains outside of stream zones. The application fees are steep and have been consistently rising creating a revenue stream for CDFW. Through interpretation of their role in enforcing Section 1600 of the Fish and Game code CDFW has taken an aggressive stance resulting in significant scope creep. Assemblyman James Gallagher has responded to the scope creep by proposing AB 947 to more clearly define the limits of CDFW jurisdiction via the LSA program.
Cox Castle & Nicholson (www.coxcastle.com) developed an informative assessment of CDFW Permitting under Fish and Game Code Section 1600 (link to pdf) which describes the agency’s regulatory authority, limitations and “gray areas”.