Mr. Robert Hight, Director
California Department of Fish and Game
1416 Ninth St., 12th Floor
Sacramento, CA 95814
Dear Director Hight:
Coast Action Group has written your agency several letters in regards to recent court rulings and California Department of Fish and Game mandate under CEQA and the CDFG Code 1600 permitting process. Attached are letters of August 9, 1999 regarding public notice requirements and environmental review requirements under CEQA, and a more recent, June 18, 2000, document on staffing needs and the 1600 process and CEQA compliance.
As stated in these letters, and as noted in oral communication with CDFG staff and review of landuse planning documents (including Timber Harvest Plans, Timberland Conversions, water diversion permits, un-permitted diversion and impoundment of water, industrial projects, vineyard construction, fibre-optic projects, and other projects needing 1600 permitting oversight) the California Department of Fish and Game is not meeting legal mandates for public notice and environmental review.
Though this situation has been made clear to you as Director of the California Department of Fish and Game, no adequate response has been made to correct this situation. In fact, direction from upper levels of the Department are working to make the problem even worse.
Orders to "streamline" the process or approve projects without necessary environmental review due to the fact that they have fallen behind in the time schedule provided by the Permit Streamlining Act are untenable and illegal. This is not the kind of leadership that is expected from the Department that is charged with the responsibility of protection of the State of California's fish and wildlife resources.
Sincerely,
For Coast Action Group
--------- 1st letter on 1600 CEQA Compliance.
August 9, 1999
California Resources Agency 1416 Ninth Street, Suite 1311 Sacramento, CA 95814
Subject: California Department of Fish and Game Gode - Public Notice and Review Compliance Under the California Environmental Quality Act.
The California Department of Fish and Game is currently required to comply with the California Environmental Quality Act (CEQA) and its Guidelines when it issues permits authorizing the incidental taking of endangered species, threatened species, or candidate species (California Endangered Species Act) and in the issuance of permits that may have evironmental consequence (i.e. CDFG Code 1603, etc). Compliance with CEQA involves the consideration of environmental impacts and the preparation of an environmental impact report (EIR), or negative declaration or mitigated negative declaration. Compliance with CEQA and its Guidelines currently requires mitigation of all impacts and monitoring the mitigation measures. Compliance with CEQA and its Guidelines also allows for public notice and participation, and the legal opportunity to review and submit comments and recommendations to the Department of Fish and Game or other agency if the Department is not the lead agency (PRC § 21091, 21092 and Guilines sections 15072 , 15073, 15083,15087, 15105).
Certified Regulatory Program
The courts have ruled that certified regulatory programs, such as the Forest Practice Act and Forest Pratice Rules, though exempt from production of a full Enivonmental Impact Report; still must meet specific CEQA intent. Included in that intent are the right for the public to have access to the process (inclusive of public noticeing), accurate description of the site and project, full disclosure of potential enviromental impacts, and logical discussion - with scientific and participating review team agency input - of how a mitigatory process will reduce impacts to a level of insiginificance. (see CEQA Compliance - below)
The courts have also ruled that specific CDFG permitting process may have enviromental consequences that require full ennvironmental review or a full EIR.
Failuew to provide enviromental review and/or public access (inclusive of noticing) to such process is not justifieble on the basis that that such programs and reporting are expensive, redundant, and confusing.
CEQA Compliance, Cumulative Impacts, Findings
The basic mandate of CEQA is for full disclosure to the public of all potential impacts related to site specific conditions on the ground and the specific conditions and practices of proposed project. This includes providing the opportunity to the public for full discussion of all pertinent factors related to a project. Environmental review of a project under CEQA must make provision for the ability of the public to comment accurately and with full knowledge on project conditions, mitigations, and proposed operations as related to the use and protection of resources.
Cumulative impacts are defined as two or more individual effects which, when considered together, may compound or increase other environmental impacts. (CEQA Guidelines § 15355, Pub. Resource Code § 21083). Individual effects may be changes resulting from a single project or number of projects. The cumulative impacts from several projects are the changes in the environment which have resulted from the incremental impacts of the project(s) when added to other closely related past, present, and reasonably foreseeable future projects. Analysis of cumulative impacts should include compounding impacts and the interrelationship of projects, including timber harvest adjacent to and upstream from this area and farming impacts downstream from this project.
The requirement of cumulative impact analysis is to afford the fullest possible protection for the environment within the reasonable scope of the statutory and regulatory language.
It is vitally important to avoid minimizing the cumulative impacts. Rather, it must reflect a conscientious effort to provide public agencies and the general public with adequate detailed information. It is the lead agency's job to discover, disclose, and discuss related impacts, past, present and future. This requires exacting analysis. This analysis need not be limited by geographic scope. Qualitative and quantitative analysis must be done, even when not necessarily feasible.
Public Resources Code §21002 requires agencies to adopt feasible mitigation measures or feasible environmentally superior alternatives.
For each significant effect identified, the lead agency must identify specific mitigation measures. The discussion must distinguish between measures proposed by a project proponent for inclusion in a project and those that, if included as part of the approval, could reasonably be expected to reduce the level of impacts. (CEQA Guidelines §15126)
Mitigation measures should be capable of (a) avoiding the impact altogether by not taking certain action; (b) minimizing impacts by limiting the degree or magnitude of the action and it implementation; (c) rectifying the impact be repairing, rehabilitating, or restoring the impacted environment; or (d) reducing or eliminating the impact over time by preservation and maintenance operations during life of the action. (CEQA Guidelines §15370)
Agencies may not refuse to consider mitigations simply because a responsible agency with subsequent permitting responsibility may also have the power to address certain significant impacts. If a mitigation is found not be feasible or appropriate, it may be altered.
Mitigation reporting and monitoring must be designed to ensure compliance, and be capable of dealing with potential failures.
Agencies should not rely on mitigation measures of unknown efficacy in concluding that significant impacts will substantially be lessened or avoided. All mitigations measure must be considered before the fact and not left for later implementation by another agency.
The CEQA process demands the mitigation measures timely be set forth, that environmental information be complete and relevant, and that environmental decisions be met in a accountable arena. Mitigations and criticism of mitigations must be supported by evidence. The rule of reasonableness applies.
Where the approving agency has received mitigation suggestions from "an agency having jurisdiction by law over natural resources effected by the project," the latter agency, if so requested by the approving agency, must prepare and submit a reporting and monitoring program applicable to the proposed mitigation measures. Pub. Resources Code § 21081.6
The above code was amended in 1992 with new subsections: Prior to the close of the public review, a responsible agency with jurisdiction over natural resources affected by a project shall either (a) submit to the lead agency complete and detailed performance objectives for mitigation measures which would address the significant environmental effects identified by the commenting agency or (b) refer the lead agency to appropriate, readily available guidelines or reference documents. Mitigations must be adopted as conditions for approval.
State lead agencies must consult with the Department of Fish and Game, and obtain written findings, regarding potential impact of a project on endangered or threatened species (PRC § 21104.2)
In any case where it can be fairly argued that there is sufficient evidence of continuing impacts in a project area. And, that the activities proposed by the applicant pose sufficient threat of additional impacts that this application can not be approve without an THP (EIR) to sufficiently disclose all potential impacts and possible mitigation measures.
Findings of Fact must be supported by evidence and presented in a logical form.
For each significant effect identified, the lead agency must make one or more of the following Findings: (1) that changes or alterations have been required in, or incorporated into, the project that avoid or substantiality lesson the effect; (2) that the lead agency lacks jurisdiction to make the change, but that another agency does have such authority; and/or (3) that specific economic, social , or other considerations make infeasible the mitigation measures or project alternatives. These findings must be supported by evidence.
OTHER PERTINENT CEQA REQUIREMENTS
CEQA is designed to "ensure that fish and wildlife populations do not drop below selfperpetuating levels," (Cal. Pub. Res. Code § 21001(c).)
CEQA requires a mandatory finding of significance for impacts on rare or endangered species. (CEQA Guideline 15065(a))
CEQA requires an EIR to include measures to avoid or minimize each significant impact identified, including the impacts of alternatives. (14 Cal. Code Regs. §15126(c).)
The CEQA process is also designed to "demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action." ( 14 Cal. Code Regs. §15003(d).)
The omission of endangered species investigation and analysis violates CEQA's most substantive provisions, which prohibits approval of projects without adopting feasible mitigation measures or alternatives (CEQA § 21002).
Compliance with CEQA involves the consideration of environmental impacts and the preparation of an EIR, or negative declaration or mitigated negative declaration. Compliance with CEQA and its Guidelines currently requires mitigation of all impacts and monitoring the mitigation measures.
Compliance with CEQA and its Guidelines also allows for public notice and participation and the legal opportunity to review and submit comments and recommendations to the Department of Fish and Game.
In cases (projects) where the California Department and Fish and Game is the lead agency and a 1603 permit is to be issued, a program for noticing interested parties on the issuance of 1603 permits must be developed.
In the case where the California Department of Fish and Game is not the lead agency and a 1603 permit is to be issued, the Department of Fish and Game has the responsibility to advise such lead agencies as to the potential environmental sensitivity of the 1603s and related public notice requirements, and also participated in the assessment, review, mitigation as required by CEQA.
Sincerely,
-----Letter #2 1600 Staffing
June 18, 2000
Mr. Robert Hight, Director California Department of Fish and Game 1416 Ninth St., 12th Floor Sacramento, CA 95814
Mary Nichols, Secretary Resources Agency 1416 Ninth Street Sacramento, CA 95814
Subject: CDFG 1600 Process and Staffing
Dear Director Hight and Secretary Nichols:
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.
Recently 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 to accomplish. However, well over a year has 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 staff responsible for processing 1600 permits are completely overwhelmed. In cases, permits are not getting appropriate review and mitigation, some permits are given without any review as the allotted review period has elapsed, some 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, interview, and meetings (over the last 8 months) with CDF staff (including; Diana Jacobs, Brian Hunter, Jim Steele, Steve Rea, Rick Macedo, Carl Wilcox, Steve Puchini, Serge Glushkoff, Rob Floerke, Scott Koller, Liam Davis, and Linda Hansen), 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 REGION 3
In Region 3 1,500 1600 permits were processed in 1999. To date this year 680 have been processed, with 400 in process currently. It is expected that in excess of 1,600 1600 permits will be processed for the year. The total number does include 1600 permits as part of Timber Harvest Plan Review. 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 the public does not have access to the process. 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 - Environmental Specialist III - who oversee and do the language for all 1600 permitting. They review draft agreements, write permits, rewrite documents, do CEQA environmental analysis, and also do a small amount of field work as time allows.
The above two Environmental Specialists are supported in field work by wardens (approx. 30) and biologists (approx. 7). Wardens are not usually trained in assessment, nor are they familiar with the issues involved in 1600 permit writing. Also, some wardens do not like to participate in the process as it puts them at odds with landowners that they work with all the time. However, wardens are responsible for a large percentage of the initial field work. 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 cases that are complicated or sensitive and are likely to have significant impacts. Field biologists are also backlogged in their case load.
The above two Environmental Specialists are also supported in clerical function by 2.8 full time staff, one Environmental Specialist in training, and one part time returned retired staff who has returned to work, and one part time seasonal aid.
As you can see, given the requisite mandates (CEQA review) and the work load (total number of permits), getting the job done with this level of staffing is not possible. Initially, to handle this load it was expected that 5 new positions would be able to handle it. This obviously did not work, so more pressure is put on field 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 THP review DFG staff (of which there are 3 to review approx. 250 THPs in Mendocino County - currently they are accomplishing about 15% 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, resource sensitivity, and some very large firbre-optic projects. 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 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 of categorical exemption 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 as there is no other answer, is not an acceptable solution. This situation is not legal, it is bad for morale, it makes DFG look incompetent, and it sets field staff up for mockery.
It is clear that Region 3 needs a large increase in competent staff. Prior to the court decision and new 1600 permitting responsibility, the Region 3 staff was at 5.5 persons. It is now at 6.25 persons. This is not a significant or realistic increase to accomplish performance on such a work load. 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 CDF 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.
"ENFORCEMENT LEADERSHIP"
With DFG's concept of "Enforcement Leadership" the wardens have significant burden as it is. It is easy to understand reluctance to engage landowners and project proponents in 1600 permit issues. This is especially true given the deficient level of training of most wardens in the 1600 process.
Given the above, it is also often the case the Captains are not responsive to 1600 permitting issues.
1600 PERMITTING FAILURES IN OTHER VENUES
Region 3 is not the only region with staffing problems related to the 1600 program. Region 1 also is having trouble keep up with its 1600 workload with inappropriate project review and permitting occurring.
Many large projects are sent to Sacramento for review by Environmental Specialists. The situation is similar with a undersized staff overburdened with a large number of complex projects. There is simply not enough staff to review all permits and trough triage some permit applications get no review at all (e.g. Williams Communications), while others get fast tracked (also sometimes without sufficient review and mitigation).
OTHER AREAS SUFFERING FROM UNDERSTAFFING
Last year, the State Legislature requested reports detailing DFG's budgetary and staffing needs. The reports showed alarming shortfalls in the agency's ability to meet its mandates:
* 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."
On SB 271 projects DFG contract managers are responsible for CEQA review on their projects. Thus, this system fails under poor leadership and overburdened staff and good restoration projects languish. In fact restoration projects suffer delay and get more intensive environmental review than more serious and potentially destructive projects.
ORGANIZATIONAL STRUCTURE - RELIANCE ON STAFF
Relying on advice from 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 STREAMLING 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. With "streamlining" or triage it is not apparent how appropriate review can occur, under CEQA and with public participation, with the noted staffing and training problems.
CONCLUSION
Staffing considerations for 1600 permitting review under a "fee based" system, or otherwise, 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 the current BCP budget proposal.
Sincerely yours,
Alan Levine for
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
Elyssa Rosen, Sierra Club
Tim McKay, Director Northcoast Environmental Center
Peter Reimuller, Friends of Schooner Gulch
Craig Bell, Northern California Association of River Guides and Salmonid Restoration Federation
Alan Levine, Coast Action Group
Dan Doble, Northern California President Trout Unlimited of California
Peter Dobbins, Friends of The Garcia River
Rixanne, Wehren Coastal Land Trust
Donna Meyers, Coastal Watershed Council
Richard Gienger, Humboldt Watershed Council
Natananda, Friends of the Eel River
Barbara Vlamis, Butte Environmental Council
Daniel Hall, American Lands
Greg Zuckert, RRRAUL
cc: Grey Davis, Governor
Robert Treanor, Fish and Game Commission
National Marine Fisheries Service
EPA
Alan Levine
Coast Action Group
P.O. Box 215
Point Arena, CA 95468
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