CDFW updates lake or stream platform modification agreement regulations

Under applicable law, an entity must notify CDFW before taking any action that materially alters the flow, bed, channel, or shore of any river, stream, or lake. (See Fish & G. Code, § 1602.) If CDFW determines that the proposed activity will have an adverse effect on fish or wildlife resources, the Department will recommend measures to protect the identified resources. If the parties agree, they then enter into an agreement (called an LSAA) that includes these protections. Only then can the activity proposed by the permit holder be continued. (ID. § 1603.)

Violations of the LSAA are subject to criminal and civil liability. For example, violation of Art. 1600 of the Fish and Game Code is an offense punishable by a fine of up to $1,000, imprisonment for up to six months, or both the fine and imprisonment. For repeated violations of the same LSAA, the penalty increases to a fine of up to $5,000, imprisonment of up to one year, or both. Section 1615 also establishes civil penalties of up to $25,000 for each violation.

Section 1612 provides CDFW the right to revoke an LSAA if the permittee fails to comply with its terms or, in the case of long-term contracts, the permittee fails to provide timely status reports in accordance with Section 1605(g). However, current regulations do not provide CDFW with any authority to administratively enforce compliance once the LSAA is issued. Instead, the attorney general, district attorney, or city attorney can bring a criminal or civil action forcing the permittee to comply with the LSAA. Section 1612 requires CDFW to establish a procedure for suspending or revoking an LSAA, including a requirement that CDFW provide written notice and an opportunity for redress, but CDFW has not yet proposed such provisions.

CDFW’s proposed rule would establish a new procedure under which CDFW may administratively suspend or revoke an LSAA due to a permittee’s failure to comply. Specifically, the proposed rule establishes the following new process under section 1612:

• • Step 1: If CDFW determines that a permit holder has not complied with the LSAA requirements, CDFW will send a notice of noncompliance. The notice must include: (1) a description of the deficiencies and the actions necessary to correct the deficiencies, (2) a deadline for correcting the deficiencies, and (3) an acknowledgment that CDFW will suspend the LSAA if the deficiencies are not remedied.
  • Step 2: If the permittee demonstrates that each deficiency has been corrected within the time specified in the notice of noncompliance and CDFW agrees, CDFW must notify the permittee that the LSAA remains in effect. Conversely, if the deficiency is not remedied, CDFW will send the applicant another suspension notice that: (1) states that the LSAA is suspended, (2) sets another deadline for remediation of each deficiency, and (3) explains that ​​If any deficiencies are not remedied within the specified period, the LSAA will be invalidated. In particular, during the suspension period, continued activities permitted under the LSAA could potentially result in separate enforcement violations under the Fish and Game Code.
  • Step 3: If the applicant satisfactorily demonstrates that all deficiencies have been corrected and CDFW agrees, CDFW must notify the entity that the suspension has been lifted and the LSAA has re-entered force. If the entity fails to correct the deficiencies, CDFW will send the applicant a notice of LSAA revocation.

Under the proposed rule, LSAA permit holders currently have two opportunities to remedy outstanding LSAA deficiencies and areas of noncompliance, likely before other, more severe and punitive penalties are imposed. However, the proposed rule expressly grants CDFW the authority to impose penalties and fines during the period of noncompliance until identified deficiencies are formally remedied, so permittees should remain vigilant in tracking compliance with LSAA safeguards and ensuring timely submission of all required reporting obligations. Additionally, if an applicant anticipates any potential difficulty in meeting the LSAA requirements (most likely due to weather/field delays or due to lengthy internal review processes), the applicant should contact CDFW as soon as possible to discuss the situation and potential accommodations, as the Proposed Rule specifies the process by which CDFW may provide an extension.

The proposed rule is open for public comment until June 18, 2024, at which time CDFW will hold a public hearing to solicit written or oral submissions from the public. At the conclusion of the hearing, CDFW will decide whether to adopt the proposed rule in its current form or in a modified form. We will monitor the outcome of this hearing and provide further legal updates over the next few months as events unfold. In the meantime, please contact us if you have any questions about the impact of the proposed rule on your LSAA or project.