SECTIONS 5650-5656 - California Statutes

FISH AND GAME CODE

SECTION 5650-5656

5650. (a) Except as provided in subdivision (b), it is unlawful to
deposit in, permit to pass into, or place where it can pass into the
waters of this state any of the following:
(1) Any petroleum, acid, coal or oil tar, lampblack, aniline,
asphalt, bitumen, or residuary product of petroleum, or carbonaceous
material or substance.
(2) Any refuse, liquid or solid, from any refinery, gas house,
tannery, distillery, chemical works, mill, or factory of any kind.
(3) Any sawdust, shavings, slabs, or edgings.
(4) Any factory refuse, lime, or slag.
(5) Any cocculus indicus.
(6) Any substance or material deleterious to fish, plant life,
mammals, or bird life.
(b) This section does not apply to a discharge or a release that
is expressly authorized pursuant to, and in compliance with, the
terms and conditions of a waste discharge requirement pursuant to
Section 13263 of the Water Code or a waiver issued pursuant to
subdivision (a) of Section 13269 of the Water Code issued by the
State Water Resources Control Board or a regional water quality
control board after a public hearing, or that is expressly authorized
pursuant to, and in compliance with, the terms and conditions of a
federal permit for which the State Water Resources Control Board or a
regional water quality control board has, after a public hearing,
issued a water quality certification pursuant to Section 13160 of the
Water Code. This section does not confer additional authority on the
State Water Resources Control Board, a regional water quality
control board, or any other entity.
(c) It shall be an affirmative defense to a violation of this
section if the defendant proves, by a preponderance of the evidence,
all of the following:
(1) The defendant complied with all applicable state and federal
laws and regulations requiring that the discharge or release be
reported to a government agency.
(2) The substance or material did not enter the waters of the
state or a storm drain that discharges into the waters of the state.
(3) The defendant took reasonable and appropriate measures to
effectively mitigate the discharge or release in a timely manner.
(d) The affirmative defense in subdivision (c) does not apply and
may not be raised in an action for civil penalties or injunctive
relief pursuant to Section 5650.1.
(e) The affirmative defense in subdivision (c) does not apply and
may not be raised by any defendant who has on two prior occasions in
the preceding five years, in any combination within the same county
in which the case is prosecuted, either pleaded nolo contendere, been
convicted of a violation of this section, or suffered a judgment for
a violation of this section or Section 5650.1. This subdivision
shall apply only to cases filed on or after January 1, 1997.
(f) The affirmative defense in subdivision (c) does not apply and
may not be raised by the defendant in any case in which a district
attorney, city attorney, or Attorney General alleges, and the court
finds, that the defendant acted willfully.

5650.1. (a) Every person who violates Section 5650 is subject to a
civil penalty of not more than twenty-five thousand dollars ($25,000)
for each violation.
(b) The civil penalty imposed for each separate violation pursuant
to this section is separate, and in addition to, any other civil
penalty imposed for a separate violation pursuant to this section or
any other provision of 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 shall 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 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) 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 that irreparable damage will occur if the
temporary restraining order, preliminary injunction, or permanent
injunction is not issued, or that the remedy at law is inadequate.
(f) After the party seeking the injunction has met its burden of
proof, the court shall determine whether to issue a temporary
restraining order, preliminary injunction, or permanent injunction
without requiring the defendant to prove that it will suffer grave or
irreparable harm. The court shall make the determination whether to
issue a temporary restraining order, preliminary injunction, or
permanent injunction by taking into consideration, among other
things, the nature, circumstance, extent, and gravity of the
violation, the quantity and characteristics of the substance or
material involved, the extent of environmental harm caused by the
violation, measures taken by the defendant to remedy the violation,
the relative likelihood that the material or substance involved may
pass into waters of the state, and the harm likely to be caused to
the defendant.
(g) The court, to the maximum extent possible, shall tailor any
temporary restraining order, preliminary injunction, or permanent
injunction narrowly to address the violation in a manner that will
otherwise allow the defendant to continue business operations in a
lawful manner.
(h) 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 legal actions or for any other law
enforcement purpose consistent with Section 9 of Article XVI of the
California Constitution.

5651. Whenever it is determined by the department that a continuing
and chronic condition of pollution exists, the department shall
report that condition to the appropriate regional water quality
control board, and shall cooperate with the board in obtaining
correction or abatement in accordance with any laws administered by
the board for the control of practices for sewage and industrial
waste disposal.

5652. (a) It is unlawful to deposit, permit to pass into, or place
where it can pass into the waters of the state, or to abandon,
dispose of, or throw away, within 150 feet of the high water mark of
the waters of the state, any cans, bottles, garbage, motor vehicle or
parts thereof, rubbish, litter, refuse, waste, debris, or the
viscera or carcass of any dead mammal, or the carcass of any dead
bird.
(b) The abandonment of any motor vehicle in any manner that
violates this section shall constitute a rebuttable presumption
affecting the burden of producing evidence that the last registered
owner of record, not having complied with Section 5900 of the Vehicle
Code, is responsible for that abandonment and is thereby liable for
the cost of removal and disposition of the vehicle. This section
prohibits the placement of a vehicle body on privately owned property
along a streambank by the property owner or tenant for the purpose
of preventing erosion of the streambank.
(c) This section does not apply to a refuse disposal site that is
authorized by the appropriate local agency having jurisdiction or to
the depositing of those materials in a container from which the
materials are routinely removed to a legal point of disposal.
(d) This section shall be enforced by all law enforcement officers
of this state.

5653. (a) The use of any vacuum or suction dredge equipment by any
person in any river, stream, or lake of this state is prohibited,
except as authorized under a permit issued to that person by the
department in compliance with the regulations adopted pursuant to
Section 5653.9. Before any person uses any vacuum or suction dredge
equipment in any river, stream, or lake of this state, that person
shall submit an application for a permit for a vacuum or suction
dredge to the department, specifying the type and size of equipment
to be used and other information as the department may require.
(b) Under the regulations adopted pursuant to Section 5653.9, the
department shall designate waters or areas wherein vacuum or suction
dredges may be used pursuant to a permit, waters or areas closed to
those dredges, the maximum size of those dredges that may be used,
and the time of year when those dredges may be used. If the
department determines, pursuant to the regulations adopted pursuant
to Section 5653.9, that the operation will not be deleterious to
fish, it shall issue a permit to the applicant. If any person
operates any equipment other than that authorized by the permit or
conducts the operation in any waters or area or at any time that is
not authorized by the permit, or if any person conducts the operation
without securing the permit, that person is guilty of a misdemeanor.
(c) The department shall issue a permit upon the payment, in the
case of a resident, of a base fee of twenty-five dollars ($25), as
adjusted under Section 713, when an onsite investigation of the
project size is not deemed necessary by the department, and a base
fee of one hundred thirty dollars ($130), as adjusted under Section
713, when the department deems that an onsite investigation is
necessary. In the case of a nonresident, the base fee shall be one
hundred dollars ($100), as adjusted under Section 713, when an onsite
investigation is not deemed necessary, and a base fee of two hundred
twenty dollars ($220), as adjusted under Section 713, when an onsite
investigation is deemed necessary.
(d) It is unlawful to possess a vacuum or suction dredge in areas,
or in or within 100 yards of waters, that are closed to the use of
vacuum or suction dredges.

5653.1. (a) The issuance of permits to operate vacuum or suction
dredge equipment is a project pursuant to the California
Environmental Quality Act (Division 13 (commencing with Section
21000) of the Public Resources Code) and permits may only be issued,
and vacuum or suction dredge mining may only occur as authorized by
any existing permit, if the department has caused to be prepared, and
certified the completion of, an environmental impact report for the
project pursuant to the court order and consent judgment entered in
the case of Karuk Tribe of California et al. v. California Department
of Fish and Game et al., Alameda County Superior Court Case No. RG
05211597.
(b) Notwithstanding Section 5653, the use of any vacuum or suction
dredge equipment in any river, stream, or lake of this state is
prohibited until the director certifies to the Secretary of State
that all of the following have occurred:
(1) The department has completed the environmental review of its
existing suction dredge mining regulations, as ordered by the court
in the case of Karuk Tribe of California et al. v. California
Department of Fish and Game et al., Alameda County Superior Court
Case No. RG 05211597.
(2) The department has transmitted for filing with the Secretary
of State pursuant to Section 11343 of the Government Code, a
certified copy of new regulations adopted, as necessary, pursuant to
Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code.
(3) The new regulations described in paragraph (2) are operative.
(c) The Legislature finds and declares that this section, as added
during the 2009-10 Regular Session, applies solely to vacuum and
suction dredging activities conducted for instream mining purposes.
This section does not expand or provide new authority for the
department to close or regulate suction dredging conducted for
regular maintenance of energy or water supply management
infrastructure, flood control, or navigational purposes governed by
other state or federal law.
(d) This section does not prohibit or restrict nonmotorized
recreational mining activities, including panning for gold.

5653.3. Any person required to possess a permit pursuant to Section
5653 shall present his or her dredging equipment for inspection upon
request of a state or county fish and game warden.

5653.5. For purposes of Section 5653, "river, stream, or lake"
means the body of water at the current water level at the time of the
dredging.

5653.7. In the event of an unanticipated water level change, when
necessary to protect fish and wildlife resources, the department may
close areas that were otherwise opened for dredging and for which
permits were issued pursuant to Section 5653.

5653.8. For purposes of Sections 5653 and 5653.3, "person" does not
include a partnership, corporation, or other type of association.

5653.9. The department shall adopt regulations to carry out Section
5653 and may adopt regulations to carry out Sections 5653.3, 5653.5,
and 5653.7. The regulations shall be adopted in accordance with the
requirements of Division 13 (commencing with Section 21000) of the
Public Resources Code and Chapter 3.5 (commencing with Section 11340)
of Part 1 of Division 3 of Title 2 of the Government Code.

5654. (a) (1) Notwithstanding Section 7715 and except as provided
in paragraph (2), the director, within 24 hours of notification of a
spill or discharge, as those terms are defined in subdivision (ad) of
Section 8670.3 of the Government Code, where any fishing, including
all commercial, recreational, and nonlicensed subsistence fishing,
may take place, or where aquaculture operations are taking place,
shall close to the take of all fish and shellfish all waters in the
vicinity of the spill or discharge or where the spilled or discharged
material has spread, or is likely to spread. In determining where a
spill or discharge is likely to spread, the director shall consult
with the Administrator of the Office of Spill Prevention and
Response. At the time of closure, the department shall make all
reasonable efforts to notify the public of the closure, including
notification to commercial and recreational fishing organizations,
and posting of warnings on public piers and other locations where
subsistence fishing is known to occur. The department shall
coordinate, when possible, with local and regional agencies and
organizations to expedite public notification.
(2) Closure pursuant to paragraph (1) is not required if, within
24 hours of notification of a spill or discharge, the Office of
Environmental Health Hazard Assessment finds that a public health
threat does not or is unlikely to exist.
(b) Within 48 hours of notification of a spill or discharge
subject to subdivision (a), the director, in consultation with the
Office of Environmental Health Hazard Assessment, shall make an
assessment and determine all of the following:
(1) The danger posed to the public from fishing in the area where
the spill or discharge occurred or spread, and the danger of
consuming fish taken in the area where the spill or discharge
occurred or spread.
(2) Whether the areas closed for the take of fish or shellfish
should be expanded to prevent any potential take or consumption of
any fish or shellfish that may have been contaminated by the spill or
discharge.
(3) The likely period for maintaining a closure on the take of
fish and shellfish in order to prevent any possible contaminated fish
or shellfish from being taken or consumed or other threats to human
health.
(c) Within 48 hours after receiving notification of a spill or
discharge subject to subdivision (a), or as soon as is feasible, the
director, in consultation with the Office of Environmental Health
Hazard Assessment, shall assess and determine the potential danger
from consuming fish that have been contained in a recirculating
seawater tank onboard a vessel that may become contaminated by the
vessel's movement through an area where the spill or discharge
occurred or spread.
(d) If the director finds in his or her assessment pursuant to
subdivision (b) that there is no significant risk to the public or to
the fisheries, the director may immediately reopen the closed area
and waive the testing requirements of subdivisions (e) and (f).
(e) Except under the conditions specified in subdivision (d),
after complying with subdivisions (a) and (b), the director, in
consultation with the Office of Environmental Health Hazard
Assessment, but in no event more than seven days from the
notification of the spill or discharge, shall order expedited tests
of fish and shellfish that would have been open for take for
commercial, recreational, or subsistence purposes in the closed area
if not for the closure, to determine the levels of contamination, if
any, and whether the fish or shellfish is safe for human consumption.
(f) (1) Within 24 hours of receiving a notification from the
Office of Environmental Health Hazard Assessment that no threat to
human health exists from the spill or discharge or that no
contaminant from the spill or discharge is present that could
contaminate fish or shellfish, the director shall reopen the areas
closed pursuant to this section. The director may maintain a closure
in any remaining portion of the closed area where the Office of
Environmental Health Hazard Assessment finds contamination from the
spill or discharge persists that may adversely affect human health.
(2) The director, in consultation with the commission, may also
maintain a closure in any remaining portion of the closed area where
commercial fishing or aquaculture occurs and where the department
determines, pursuant to this paragraph, that contamination from the
spill or discharge persists that may cause the waste of commercial
fish or shellfish as regulated by Section 7701.
(g) To the extent feasible, the director shall consult with
representatives of commercial and recreational fishing associations
and subsistence fishing communities regarding the extent and duration
of a closure, testing protocols, and findings. If a spill or
discharge occurs within the lands governed by a Native American tribe
or affects waters flowing through tribal lands, or tribal fisheries,
the director shall consult with the affected tribal governments.
(h) The director shall seek full reimbursement from the
responsible party or parties for the spill or discharge for all
reasonable costs incurred by the department in carrying out this
section, including, but not limited to, all testing.

5655. (a) In addition to the responsibilities imposed pursuant to
Section 5651, the department may clean up or abate, or cause to be
cleaned up or abated, the effects of any petroleum or petroleum
product deposited or discharged in the waters of this state or
deposited or discharged in any location onshore or offshore where the
petroleum or petroleum product is likely to enter the waters of this
state, order any person responsible for the deposit or discharge to
clean up the petroleum or petroleum product or abate the effects of
the deposit or discharge, and recover any costs incurred as a result
of the cleanup or abatement from the responsible party.
(b) An order shall not be issued pursuant to this section for the
cleanup or abatement of petroleum products in any sump, pond, pit, or
lagoon used in conjunction with crude oil production that is in
compliance with all applicable state and federal laws and
regulations.
(c) The department may issue an order pursuant to this section
only if there is an imminent and substantial endangerment to human
health or the environment and the order shall remain in effect only
until any cleanup and abatement order is issued pursuant to Section
13304 of the Water Code. A regional water quality control board shall
incorporate the department's order into the cleanup and abatement
order issued pursuant to Section 13304 of the Water Code, unless the
department's order is inconsistent with any more stringent
requirement established in the cleanup and abatement order. Any
action taken in compliance with the department's order is not a
violation of any subsequent regional water quality control board
cleanup and abatement order issued pursuant to Section 13304 of the
Water Code.
(d) The Administrator of the Office of Spill Prevention and
Response has the primary authority to serve as a state incident
commander and direct removal, abatement, response, containment, and
cleanup efforts with regard to all aspects of any placement of
petroleum or a petroleum product in the waters of the state, except
as otherwise provided by law. This authority may be delegated.
(e) For purposes of this section, the following definitions apply:
(1) "Petroleum product" means oil of any kind or form, including,
but not limited to, fuel oil, sludge, oil refuse, and oil mixed with
waste other than dredged spoil. "Petroleum product" does not include
any pesticide that has been applied for agricultural, commercial, or
industrial purposes or that has been applied in accordance with a
cooperative agreement authorized by Section 116180 of the Health and
Safety Code, that has not been discharged accidentally or for
purposes of disposal, and the application of which was in compliance
with all applicable state and federal laws and regulations.
(2) "State incident commander" means a person with the overall
authority for managing and conducting incident operations during an
oil spill response, who shall manage an incident consistent with the
standardized emergency management system required by Section 8607 of
the Government Code. Incident management generally includes the
development of objectives, strategies, and tactics, ordering and
release of resources, and coordinating with other appropriate
response agencies to ensure that all appropriate resources are
properly utilized and that this coordinating function is performed in
a manner designed to minimize risk to other persons and to the
environment.

5656. Any recovery or settlement of money damages, including, but
not limited to, civil penalties arising out of any civil action filed
and maintained by the Attorney General in the enforcement of this
article shall be deposited in the Fish and Wildlife Pollution Account
in the Fish and Game Preservation Fund.