SECTIONS 1600-1616 - California Statutes

FISH AND GAME CODE

SECTION 1600-1616

1600. The Legislature finds and declares that the protection and
conservation of the fish and wildlife resources of this state are of
utmost public interest. Fish and wildlife are the property of the
people and provide a major contribution to the economy of the state,
as well as providing a significant part of the people's food supply;
therefore their conservation is a proper responsibility of the state.
This chapter is enacted to provide conservation for these resources.

1601. The following definitions apply to this chapter:
(a) "Agreement" means a lake or streambed alteration agreement.
(b) "Day" means calendar day.
(c) "Emergency" has the same definition as in Section 21060.3 of
the Public Resources Code.
(d) "Entity" means any person, state or local governmental agency,
or public utility that is subject to this chapter.

1602. (a) An entity may not substantially divert or obstruct the
natural flow of, or substantially change or use any material from the
bed, channel, or bank of, any river, stream, or lake, or deposit or
dispose of debris, waste, or other material containing crumbled,
flaked, or ground pavement where it may pass into any river, stream,
or lake, unless all of the following occur:
(1) The department receives written notification regarding the
activity in the manner prescribed by the department. The notification
shall include, but is not limited to, all of the following:
(A) A detailed description of the project's location and a map.
(B) The name, if any, of the river, stream, or lake affected.
(C) A detailed project description, including, but not limited to,
construction plans and drawings, if applicable.
(D) A copy of any document prepared pursuant to Division 13
(commencing with Section 21000) of the Public Resources Code.
(E) A copy of any other applicable local, state, or federal permit
or agreement already issued.
(F) Any other information required by the department.
(2) The department determines the notification is complete in
accordance with Chapter 4.5 (commencing with Section 65920) of
Division 1 of Title 7 of the Government Code, irrespective of whether
the activity constitutes a development project for the purposes of
that chapter.
(3) The entity pays the applicable fees, pursuant to Section 1609.
(4) One of the following occurs:
(A)
(i) The department informs the entity, in writing, that the
activity will not substantially adversely affect an existing fish or
wildlife resource, and that the entity may commence the activity
without an agreement, if the entity conducts the activity as
described in the notification, including any measures in the
notification that are intended to protect fish and wildlife
resources.
(ii) Each region of the department shall log the notifications of
activities where no agreement is required. The log shall list the
date the notification was received by the department, a brief
description of the proposed activity, and the location of the
activity. Each item shall remain on the log for one year. Upon
written request by any person, a regional office shall send the log
to that person monthly for one year. A request made pursuant to this
clause may be renewed annually.
(B) The department determines that the activity may substantially
adversely affect an existing fish or wildlife resource and issues a
final agreement to the entity that includes reasonable measures
necessary to protect the resource, and the entity conducts the
activity in accordance with the agreement.
(C) A panel of arbitrators issues a final agreement to the entity
in accordance with subdivision (b) of Section 1603, and the entity
conducts the activity in accordance with the agreement.
(D) The department does not issue a draft agreement to the entity
within 60 days from the date notification is complete, and the entity
conducts the activity as described in the notification, including
any measures in the notification that are intended to protect fish
and wildlife resources.
(b) (1) If an activity involves the 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 after the initial notification and
agreement, unless the department determines either of the following:
(A) The work described in the agreement has substantially changed.
(B) Conditions affecting fish and wildlife resources have
substantially changed, and those resources are adversely affected by
the activity conducted under the agreement.
(2) This subdivision applies only if notice to, and agreement
with, the department was attained prior to January 1, 1977, and the
department has been provided a copy of the agreement or other proof
of the existence of the agreement that satisfies the department, if
requested.
(c) It is unlawful for any person to violate this chapter.

1603. (a) After the notification is complete, the department shall
determine whether the activity may substantially adversely affect an
existing fish and wildlife resource. If the department determines
that the activity may have that effect, the department shall provide
a draft agreement to the entity within 60 days after the notification
is complete. The draft agreement shall describe the fish and
wildlife resources that the department has determined the activity
may substantially adversely affect and include measures to protect
those resources. The department's description of the affected
resources shall be specific and detailed, and the department shall
make available, upon request, the information upon which its
determination of substantial adverse effect is based. Within 30 days
of the date of receipt of the draft agreement, the entity shall
notify the department whether the measures to protect fish and
wildlife resources in that draft agreement are acceptable. If the
department's measures are not acceptable, the entity shall so notify
the department in writing and specify the measures that are not
acceptable. Upon written request, the department shall meet with the
entity within 14 days of the date the department receives the request
for the purpose of resolving any disagreement regarding those
measures. If the entity fails to respond, in writing, within 90 days
of receiving the draft agreement, the department may withdraw that
agreement, and require the entity to resubmit a notification to the
department before commencing the activity.
(b) If mutual agreement is not reached at any meeting held
pursuant to subdivision (a), the entity may request, in writing, the
appointment of a panel of arbitrators to resolve the disagreement. A
panel of arbitrators shall be appointed within 14 days of receipt of
the written request. The panel of arbitrators shall be comprised of
three persons, as follows: one representative selected by the
department; one representative selected by the affected entity; and a
third person mutually agreed upon by the department and the entity,
who shall serve as the panel chair. If the department and the entity
cannot agree on the third person within that 14-day period, the third
person shall be appointed in the manner provided by Section 1281.6
of the Code of Civil Procedure. The third person shall have
scientific expertise relevant to the fish and wildlife resources that
may be substantially adversely affected by the activity proposed by
the entity and to the measures proposed by the department to protect
those resources. The authority of the panel of arbitrators is limited
to resolving disagreements regarding the measures specified in
subdivision (a), and subdivisions (b) and (g) of Section 1605, and,
in the case of an extension, whether or not the agreement needs to be
modified to protect fish and wildlife resources. Any decision by the
panel of arbitrators shall be issued within 14 days from the date
the panel was established, shall be binding on the department and the
affected entity, shall be based on the best scientific information
reasonably available at the time of the arbitration, and, except for
a decision to extend an agreement without modification, shall be made
in the form of a final agreement. The final agreement issued by the
panel shall also include, without modification, all measures that
were not subject to arbitration. Each party shall pay the expenses of
their selected representative and pay one-half the expenses of the
third person.

1604. Any party affected by a decision made by an arbitration panel
pursuant to this chapter may petition a court of competent
jurisdiction for confirmation, correction, or vacation of the
decision in accordance with Chapter 4 (commencing with Section 1285)
of Title 9 of Part 3 of the Code of Civil Procedure.

1605. (a) (1) Except as otherwise provided in this section, the
term of an agreement shall not exceed five years.
(2) Notwithstanding paragraph (1), after the agreement expires,
the entity shall remain responsible for implementing any mitigation
or other measures specified in the agreement to protect fish and
wildlife resources.
(b) Any entity may request one extension of a previously-approved
agreement, if the entity requests the extension prior to the
expiration of its original term. The department shall grant the
extension unless it determines that the agreement requires
modification because the measures contained in the agreement no
longer protect the fish and wildlife resources that the activity may
substantially adversely affect. In the event the department makes
that determination, the department shall propose measures intended to
protect those resources.
(c) If the entity disagrees with the department's determination
that the agreement requires modification to protect fish and wildlife
resources or with the measures proposed by the department, the
disagreement shall be resolved pursuant to the procedures described
in subdivision (b) of Section 1603.
(d) The department may not extend an agreement for more than five
years.
(e) (1) An original agreement shall remain in effect until the
department grants the extension request, or new measures are imposed
to protect fish and wildlife resources by agreement or through the
arbitration process.
(2) Notwithstanding paragraph (1), an original agreement may not
remain in effect for more than one year after its expiration date.
(f) If the entity fails to submit a request to extend an agreement
prior to its expiration, the entity shall submit a new notification
before commencing or continuing the activity covered by the
agreement.
(g) Notwithstanding paragraph (1) of subdivision (a), the
department may issue an agreement, that otherwise meets the
requirements of this chapter, for a term longer than five years if
the following conditions are satisfied:
(1) The information the entity provides to the department in its
notification meets the requirements of paragraph (1) of subdivision
(a) of Section 1602.
(2) The entity agrees to provide a status report to the department
every four years. The status report shall be delivered to the
department no later than 90 days prior to the end of each four-year
period, and shall include all of the following information:
(A) A copy of the original agreement.
(B) The status of the activity covered by the agreement.
(C) An evaluation of the success or failure of the measures in the
agreement to protect the fish and wildlife resources that the
activity may substantially adversely affect.
(D) A discussion of any factors that could increase the predicted
adverse impacts on fish and wildlife resources, and a description of
the resources that may be adversely affected.
(3) The department shall review the four-year status report, and
conduct an onsite inspection to confirm that the entity is in
compliance with the agreement and that the measures in the agreement
continue to protect the fish and wildlife resources. If the
department determines that the measures in the agreement no longer
protect the fish and wildlife resources that are being substantially
adversely affected by the activity, the department, in consultation
with the entity, and within 45 days of receipt of the report, shall
impose one or more new measures to protect the fish and wildlife
resources affected by the activity. If requested to do so by the
entity, the department shall make available the information upon
which it determined the agreement no longer protects the affected
fish and wildlife resources. If the entity disagrees with one or more
of the new measures, within seven days of receiving the new
measures, it shall notify the department, in writing, of the
disagreement. The entity and the department shall consult regarding
the disagreement. The consultation shall be completed within seven
days after the department receives the entity's notice of
disagreement. If the department and entity fail to reach agreement,
the entity may request, in writing, the appointment of a panel of
arbitrators to resolve the disagreement. The panel of arbitrators
shall be appointed within 14 days of the completed consultation. The
panel of arbitrators shall issue a decision within 14 days of the
date it is established. All other provisions of subdivision (b) of
Section 1603 regarding the panel shall apply to any arbitration panel
established in accordance with this subdivision. If the entity fails
to provide timely status reports as required by this subdivision,
the department may suspend or revoke the agreement.
(4) The agreement shall authorize department employees to conduct
onsite inspections relevant to the agreement, upon reasonable notice.
Nothing in this section limits the authority of department employees
to inspect private or public sites.
(5) Except as provided in paragraph (3), subparagraph (D) of
paragraph (4) of subdivision (a) of Section 1602 and the time periods
to process agreements specified in this chapter do not apply to
agreements issued pursuant to this section.
(h) Each region of the department shall log the notifications of
activities for which a long-term agreement is being considered
pursuant to subdivision (g). The log shall list the date the
notification was received by the department, a brief description of
the proposed activity, and the location of the activity. Each item
shall remain on the log for one year. Upon written request by any
person, a regional office shall send the log to that person monthly
for one year. A request made pursuant to this paragraph may be
renewed annually.

1606. The department shall not condition the issuance of an
agreement on the receipt of another local, state, or federal permit.

1607. Any time period prescribed in this chapter may be extended by
mutual agreement.

1608. The department shall provide any entity that submits a
notification pursuant to Section 1602 with all of the following
information:
(a) The time period for review of the notification.
(b) An explanation of the entity's right to object to any measures
proposed by the department.
(c) The time period within which objections may be made in writing
to the department.
(d) The time period within which the department is required to
respond, in writing, to the entity's objections.
(e) An explanation of the right of the entity to arbitrate any
measures in a draft agreement.
(f) The procedures and statutory timelines for arbitration,
including, but not limited to, information about the payment
requirements for arbitrator fees.
(g) The current schedule of fees to obtain an agreement.

1609. (a) The director may establish a graduated schedule of fees
to be charged to any entity subject to this chapter. The fees charged
shall be established in an amount necessary to pay the total costs
incurred by the department in administering and enforcing this
chapter, including, but not limited to, preparing and submitting
agreements and conducting inspections. The department may adjust the
fees pursuant to Section 713. Fees received pursuant to this section
shall be deposited in the Fish and Game Preservation Fund.
(b) (1) The fee schedule established pursuant to subdivision (a)
may not impose a fee that exceeds five thousand dollars ($5,000) for
any agreement.
(2) The fee limitation described in paragraph (1) does not apply
to any agreement issued pursuant to subdivision (g) of Section 1605.

1610. (a) Except as provided in subdivision (b), this chapter does
not apply to any of the following:
(1) Immediate emergency work necessary to protect life or
property.
(2) Immediate emergency repairs to public service facilities
necessary to maintain service as a result of a disaster in an area in
which a state of emergency has been proclaimed by the Governor
pursuant to Chapter 7 (commencing with Section 8550) of Division 1 of
Title 2 of the Government Code.
(3) Emergency projects undertaken, carried out, or approved by a
state or local governmental agency to maintain, repair, or restore an
existing highway, as defined in Section 360 of the Vehicle Code,
within the existing right-of-way of the highway, that has been
damaged as a result of fire, flood, storm, earthquake, land
subsidence, gradual earth movement, or landslide, within one year of
the damage. Work needed in the vicinity above and below a highway may
be conducted outside of the existing right-of-way if it is needed to
stop ongoing or recurring mudslides, landslides, or erosion that
pose an immediate threat to the highway, or to restore those roadways
damaged by mudslides, landslides, or erosion to their predamage
condition and functionality. This paragraph does not exempt from this
chapter any project undertaken, carried out, or approved by a state
or local governmental agency to expand or widen a highway damaged by
fire, flood, storm, earthquake, land subsidence, gradual earth
movement, or landslide. The exception provided in this paragraph does
not apply to a highway designated as an official state scenic
highway pursuant to Section 262 of the Streets and Highways Code.
(b) The entity performing the emergency work described in
subdivision (a) shall notify the department of the work, in writing,
within 14 days of beginning the work. Any work described in the
emergency notification that does not meet the criteria for the
emergency work described in subdivision (a) is a violation of this
chapter if the entity did not first notify the department in
accordance with Section 1602.

1611. (a) An entity that submits a timber harvesting plan in
accordance with Section 4581 of the Public Resources Code or directly
to the department is deemed to have given the notification required
by Section 1602, as long as the following information is included in
the plan:
(1) The volume, type, and equipment to be used in removing or
displacing any one or combination of soil, sand, gravel, or boulders.
(2) The volume of water, intended use, and equipment to be used in
any water diversion or impoundment, if applicable.
(3) The equipment to be used in road or bridge construction.
(4) The type and density of vegetation to be affected and an
estimate of the area involved.
(5) A diagram or sketch of the location of the operation that
clearly indicates the stream or other water and access from a named
public road. Locked gates shall be indicated and the compass
direction shall be shown.
(6) A description of the period of time in which operations will
be carried out.
(b) Notwithstanding subdivision (a), the department is not
required to determine whether the notification is complete or
otherwise process the notification until the timber harvesting plan
and the proper notification fee have both been received by the
department.
(c) Nothing in this section requires the department to issue an
agreement fewer than 60 days from the date the notification is
complete.
(d) The date on which the term of an agreement issued pursuant to
this section begins shall be the date timber operations first
commence, unless the agreement specifies a later beginning date.

1612. The department may suspend or revoke an agreement at any time
if it determines that an entity is not in compliance with the terms
of the agreement or fails to provide timely status reports as
required by subdivision (g) of Section 1605. The department shall
adopt regulations establishing the procedure for suspension or
revocation of an agreement. The procedure shall require the
department to provide to the entity a written notice that explains
the basis for a suspension or revocation, and to provide the entity
with an opportunity to correct any deficiency before the department
suspends or revokes the agreement.

1613. If, after receiving a notification, but before the department
executes a final agreement, the director of the department informs
the entity, in writing, that the activity described in the
notification, or any activity or conduct by the entity directly
related thereto, violates any provision of this code or the
regulations that implement the code, the department may suspend
processing the notification, and subparagraph (D) of paragraph (4) of
subdivision (a) of Section 1602 and the timelines specified in
Section 1603 do not apply. This section ceases to apply if any of the
following occurs:
(a) The department determines that the violation has been
remedied.
(b) Legal action to prosecute the violation is not filed within
the applicable statute of limitations.
(c) Legal action to prosecute the violation has been terminated.

1614. If the entity is required to perform work subject to this
chapter pursuant to a court or administrative order or notice, the
entity shall include the measures proposed by the department to
protect fish and wildlife resources in the agreement. Those measures
are not subject to arbitration.

1615. (a) A person who violates this chapter is subject to a civil
penalty of not more than twenty-five thousand dollars ($25,000) for
each violation.
(b) The civil penalty imposed pursuant to subdivision (a) is
separate from, and in addition to, any other civil penalty imposed
pursuant to this section or any other provision of the law.
(c) In determining the amount of any civil penalty imposed
pursuant to this section, the court shall take into consideration all
relevant circumstances, including, but not limited to, the nature,
circumstance, extent, and gravity of the violation. In making this
determination, the court may consider the degree of toxicity and
volume of the discharge, the extent of harm caused by the violation,
whether the effects of the violation may be reversed or mitigated,
and, with respect to the defendant, the ability to pay, the effect of
any civil penalty on the ability to continue in business, any
voluntary cleanup efforts undertaken, any prior history of
violations, the gravity of the behavior, the economic benefit, if
any, resulting from the violation, and any other matters the court
determines that justice may require.
(d) Every civil action brought under this section shall be brought
by the Attorney General upon complaint by the department, or by the
district attorney or city attorney in the name of the people of the
State of California, and any actions relating to the same violation
may be joined or consolidated.
(e) (1) In any civil action brought pursuant to this chapter in
which a temporary restraining order, preliminary injunction, or
permanent injunction is sought, it is not necessary to allege or
prove at any stage of the proceeding any of the following:
(A) That irreparable damage will occur if the temporary
restraining order, preliminary injunction, or permanent injunction is
not issued.
(B) That the remedy at law is inadequate.
(2) The court shall issue a temporary restraining order,
preliminary injunction, or permanent injunction in a civil action
brought pursuant to this chapter without the allegations and without
the proof specified in paragraph (1).
(f) All civil penalties collected pursuant to this section shall
not be considered fines or forfeitures as defined in Section 13003,
and shall be apportioned in the following manner:
(1) Fifty percent shall be distributed to the county treasurer of
the county in which the action is prosecuted. Amounts paid to the
county treasurer shall be deposited in the county fish and wildlife
propagation fund established pursuant to Section 13100.
(2) Fifty percent shall be distributed to the department for
deposit in the Fish and Game Preservation Fund. These funds may be
expended to cover the costs of any legal actions or for any other law
enforcement purpose consistent with Section 9 of Article XVI of the
California Constitution.

1616. Any agreement or any memorandum of understanding executed by
the department pursuant to this chapter prior to January 1, 2004,
shall be subject to, and shall be governed by, the provisions of this
chapter that were in existence prior to that date. This section does
not apply to paragraph (2) of subdivision (b) of Section 1602,
requiring an entity to provide a copy or other satisfactory evidence
of an agreement attained prior to January 1, 1977, upon the request
of the department.