December 3, 2004
Mr. Ryan Broddrick, Director
California Department of Fish and Game
1416 Ninth St., 12th Floor
Sacramento, CA 95814
Subject: DFG 1600 Process and Staffing
Dear Director Broddrick:
Our coalition was organized in 1996 by the seven member organizations appointed by the California Resources Agency to represent environmental, fishery and restoration interests on the Policy Committee of the defunct Coastal Salmon Initiative in response to the collapse of the CSI and subsequent listing of the coho salmon. Since then we have maintained an ongoing dialogue with state and federal policy makers as an advocate of federal and state policies and actions that will make a positive, effective contribution to the recovery of coastal salmonids.
We submit these comments in an effort to bring improvement in resolution to problems facing the 1600 permitting program at the Department of Fish and Game.
CURRENT STATUS OF 1600 REVIEW - OVERVIEW
The California Department of Fish and Game 1600, Streambed Alteration, permitting program is vitally important to the protection and recovery of fishery, aquatic species, and wildlife values. The Department of Fish and Game (DFG) is responsible for conserving, protecting, and managing California's fish, wildlife, and native plant species. The program of employing this permitting process is the defining point of permitting projects and getting it right. Appropriate review and project design not only protect the resource, it offers the most helpful, cost effective, and time efficient solution to resource management challenges.
The courts have ruled that California Department of Fish and Game Code 1600, Stream Alteration, permits may have environmental effects and thus must go through a CEQA based environmental review process. This review process is to give responsible agency and the public adequate disclosure and appropriate analysis of potential effects of proposed stream alterations along with mitigation of any potential adverse effects of such alteration. With this ruling the Department is faced with quite a challenge. Providing appropriate analysis and processing permits in a timely manner to meet state statute will obviously take significantly more human resources. However, several years have passed since the court decision and the Department has not been successful in developing staff or structure to meet its legal mandate. Thus, in the process of attempting to accomplish its mandate, the staff responsible for processing 1600 permits are completely overwhelmed. There are many permits/applications that are not getting appropriate review and mitigation. Some permits are given without any review as the allotted review period has elapsed. Staff are overworked and suffering from low morale, and the public is being completely left out of the review process. In short, the California Department of Fish and Game is not in legal compliance with state law and resources are not being protected.
The following is specific information accumulated from discussion, interviews, and meetings (over many months) with DFG staff ( including several members of staff from each of the Regions, 1, 2, and 3, and staff in the executive offices), as well as coalition members and other interested parties that deal with the 1600 permitting process - also to include project proponents and THP review.
CONDITIONS IN DFG REGIONS - 1, 2, and 3
The approximate review of staffing and 1600 permitting conditions related to the above noted regions a likely to be an approximation of conditions throughout the entire state. Region's 1, 2, & 3 are not the only region with staffing problems related to the 1600 program .Many large projects are sent to Sacramento for review by Environmental Specialists. In all regions and in Sacramento the situation is similar - severely limited staff that is overburdened with a large number of complex projects. There is simply not enough staff to review all permits. Through a triage process some permit applications get no review at all - while others get fast tracked (often without sufficient review and mitigation and failure to notice the public).
REGION 1
In Region 1 there were approximately 500 1600 applications filed for the year - 2004. This figure does not include 1600 applications related to Timber Harvest Plans. Region 1 is having trouble keeping up with its 1600 workload resulting in inappropriate project review and permitting occurring. There are 2 staff available for processing 1600 applications. At a rate of about 100 applications competed per staff person, about 200 applications will have project some level of review.
REGION 2
In Region 2 there were approximately 500 to 600 1600 applications filed for the year - 2004. This figure does not include 1600 applications related to Timber Harvest Plans. Region 2 is also having trouble keep up with its 1600 workload resulting with inappropriate project review and permitting occurring. There are 3 staff available for processing 1600 applications. At a rate of about 100 applications competed per staff person, about 300 applications will have some level of projected review.
REGION 3
In Region 3 approximately 1, 000 1600 permits are submitted each year (on average, 1999 = over 1,500, 2004 = 900). This total number does not include 1600 permits as part of Timber Harvest Plan Review. There is a total of 3 to 4 staff (total) allocated for this work, with each person barely able to handle 100 permits per year (this represents the frequency of time it takes to do an incomplete, rushed job, on a complicated permit). The staff in Region 3 are completely overwhelmed. They are performing triage in an effort to review the most sensitive permits. Some permits are being issued without any review, some are being issued late, and some permits that are not reviewed are approved under Operation of Law provision. The public review process, under CEQA, is being subverted and the public is not permitted access to the process. There are case where, due to the length of periods to accomplish permit review, project proponents are angry and have complained loudly and forced permit issuance without review and mitigatory process.
Staffing for this process in Region 3 currently is: 2 Biologists - who oversee, complete biologic environmental review, and do the language for all 1600 permitting and conditions to the permit.. They review draft agreements, write permits, rewrite documents, do CEQA environmental analysis, and also do a small amount of field work as time allows. There are two other support staff that aid the process, but not on a full time basis.
The above two Environmental Specialists are no longer supported in field work by wardens. The biologists that support 1600 permit work are often busy with other problems (projects and field work) and do not have sufficient time to lend themselves to completing 1600 field work and analysis. Biologists are most often sent to select (the most sensitive) cases that are complicated or sensitive and are likely to have significant impacts. Field biologists are also backlogged in their case load.
As you can see, given the requisite mandates (CEQA review) and the work load (total number of permit applications), getting the job done with this level of staffing is not possible. Initially, to handle this load it was expected that several new positions would be made available to handle the work load. This obviously did not occur. Thus, more pressure is put on staff - who are already overloaded in the first place. Of minor relief is that the THP related 1600 permits (approx. 200) are, in part, accomplished by the Timber Harvest Plan review DFG staff (of which there are 3 to review approx. 300 THPs in Mendocino County - currently they are accomplishing field review for fish and wildlife values for about 15% of the THPs with a target of 25% of Mendocino County THPs).
The Region 3 staff is responsible for 1600 permits in a very large geographic area - 15 counties. This region is very large, with a high percentage of permit noticing, and resource sensitivity. The permit review period is limited by the permit streamlining act to a 30 day review period. When the review period time is lapsed project proponents get angry and frustrated and may demand a permit, whether or not a permit is written or review and mitigation have been accomplished. Applicants with influence may get exempted from review or get their projects bumped ahead of others (e.g. Cal Trans, large fibre-optic projects, Mayacamas Golf Course). In some cases categorical exemptions (streambed alterations are interpreted as a minor alteration - a much faster route through the process § 15301-305, this is subject to legal interpretation) are applied to application/permits in inappropriate ways to evade review necessity as Negative Declaration or a CEQA reviewed project. Classification as a Categorical Exemption effectively eliminates public participation in the review process. These limitations leave all parties, DFG staff, applicants, and the public very frustrated. There are numerous cases where environmental review happens after the fact or not at all. There are also cases where the applicant is allowed to hire consultants to do the environmental review work with DFG oversight. This may help with efficiency on one hand but may not be fair to all applicants in the end.
It is clear that this format of triage, where some permits get review and some do not - and some are allowed to lapse on purpose (by Operation of Law), is not an acceptable solution. This situation is not consistent with State law, it is not consistent with Coho Recovery Policy, it is bad for morale, it makes DFG look incompetent.
Region 3 (all Regions) needs a significant increase in competent staff to properly assess and review 1600 permit applications. This level of staffing is not realistic relative to the work load and/or necessary performance standards. It is conservatively estimated that at least 4 more Environmental Specialists and 3 fold increase of staff in general is needed to address both biologic and clerical staffing shortfalls in processing 1600 permits. This includes additional biologists that are also needed for fieldwork. If DFG THP review staff are to be responsible for 1600 permits on THPs, more help will be needed there if there is to be any hope of reviewing a reasonable number of THPs for fish and wildlife considerations.
LEGAL MANDATES
As indicated above, a majority of the 1600 applications are not being reviewed at all. With a very large number of applications the CEQA legal requirements of public noticing and environmental review are not being met.
In the case of Categorical Exemption, many applications that can have environmental consequences are not receiving appropriate project review - under CEQA.
In the case where the review time has lapsed (due to insufficient staffing or other reason) and a project moves forward by permit under Operation of Law; the legal responsibility of the project to meet specific CEQA compliance is still the responsibility of the Department. Thus, any such project, either Categorical Exclusion or "permitted by Operation of Law", that poses a threat to the environment can be successfully challenged in a Court of Law.
OTHER AREAS SUFFERING FROM UNDER STAFFING
Historic documentation where the State Legislature requested reports detailing DFG's budgetary and staffing needs showed alarming shortfalls in the agency's ability to meet its mandates:
* Compliance with goals and policy of the Coho Recovery Guidelines is compromised by failure to adequately review 1600 permits
* Less than 2% of rare species are monitored "at some level" for condition and trend each year
* Only 10% of the 13,000 California Environmental Quality Act (CEQA) analyses submitted each year (e.g. for housing developments) receive complete analysis
* Only 14% of timber harvest plans are comprehensively reviewed by the DFG
* Plants are disproportionately affected because so few botanists are on DFG staff. In 1999, DFG employed only 12 botanists as compared to approximately 380 wildlife biologists.
* For timber harvest alone, the DFG report acknowledges, "As a result of this [inadequate review] over the past 15 years, significant declines in species, water quality and overall health of the watersheds has occurred."
RESTORATION - 1600 PERMITTING
On General Restoration Permits and related projects DFG contract managers are responsible for consistency and environmental review on their projects. This system is also overburdened, but staff generally attempts to do a good job. Though the Department has shown some progress in this area, here still are cases where restoration projects suffer delay. Restoration projects are subject to more scrutiny overall and have more restrictions from almost every regulatory agency than many of the projects with more damaging potential. Currently, it is unclear if it is still viable for the equipment folks that specialize in restoration and do incredibly good work. Restoration projects have a much more limited window to work in under our 1600's than one associated with a THP.
ORGANIZATIONAL STRUCTURE - RELIANCE ON STAFF
Relying on advice from your qualified staff - particularly field level staff who implement programs and policies - and public constituency organizations that are familiar with the inner workings of specific Department programs will help DFG identify and confirm structural strengths and weaknesses. DFG has yet to embrace this concept. If structural problems are to be solved progress must be made in this area.
RELEVANCY OF PERMIT STREAMLINING ACT
Given the fact that 30 days may be inadequate to review some projects, especially very large or sensitive projects, adequate staffing is essential to complete review in the appropriate time period. Aside from staffing, legislation must be sought to allow for a longer review period in special cases.
"Streamlining" has been discussed in the department. Given the number and complexity of applications, with the goal of "streamlining" or triage it is not apparent how appropriate review can occur, under CEQA and with public participation, with the noted level of current staffing for review of 1600 applications. .
FEES
Fees have been suggested and studied as part of the remedy for this problem. The Department has been working on a fee schedule. The Department must make progress in addressing this issue. Fees are a very viable funding option, were the fee receipts should go directly to support the 1600 permitting process. Making progress in the area of fees can go a long way in solving some budget and staffing needs related to the program.
CONCLUSION
Resolving staffing issues for 1600 permitting review under a "fee based" system should be of the highest priority. This will require a thorough analysis of the status and needs of existing DFG's 1600 programs as well as programmatic statutory requirements, and as importantly, a review of current organizational needs that will serve to identify structural and staffing solutions that will satisfy these procedural, organization, and legal needs. We are not privy to the BCP for additional needed staff. But, we want to make it abundantly clear that current staffing levels are far below what is needed to address current issue in the 1600 permitting program. Significant increases in staff to address such issue must be addressed in any current organizational review and in any BCP budget proposal.
Sincerely yours,
Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468
Group and the following signatories:
Zeke Grader, Executive Director
Pacific Coast Federation of Fishermen's Associations
Tom Weseloh, Northern California Manager
California Trout, Inc.
Chris Poehlman
Gualala River Improvement Network
Dave Jordan
Friends of the Gualala
Peter Reimuller
Friends of Schooner Gulch
Craig Bell
Northern California Association of River Guides
Josh Israel
Salmonid Restoration Federation
Alan Levine
Coast Action Group
Stan Griffin, Northern California President.
Trout Unlimited of California
Peter Dobbins
Friends of The Garcia River
Rixanne Wehren
Coastal Land Trust
Allen Harthorn
Friends of Butte Creek
Don McEnhill
Russian Riverkeeper
& Friends Of the Russian River,
Executive Director
Jim Crenshaw, President
California Sport Fishing Alliance
Bill Jennings, Executive Director
Deltakeeper
Waldo Holt, Conservation Chair to the DFG 1600 Process and Staffing letter
San Joaquin Audubon,
Richard Gienger
Humboldt Watershed Council
Jay Halcomb
Russian River Residents Against Unsafe Logging
Kate Henderson
Town Hall Coalition
Mike Sandler, Program Coordinator
Community Clean Water Institute
Kevin Collins, Board President,
Lompico Watershed Conservancy
cc: Arnold Schwarzenegger, Governor
Fish and Game Commission
NOAA Fisheries
Resources Secretary
Cal EPA
Senate Natural Resources Committee
USEPA
Nick Villa, DFG
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