In several posts I’ve mentioned that technically, state and federal law doesn’t prevent the filling of a stream. And it doesn’t – it sets up a process of mitigation, so that if a developer wants to fill a stream they have to restore one somewhere else. “No net loss” describes this philosophy, and I’d say the implementation of it has been….flawed.
But notwithstanding, you can still work with state, federal, and some local laws and regulations to fight for your stream, negotiate and maybe even win at protecting it. I have found that local jurisdictions, like planning and building and safety departments can be woefully underinformed about their obligations to protect streams. You may find you need to educate them, and they may resist being educated (sorry cities, but I’ve seen it happen…)
If there’s a stream and someone’s trying to fill it, lay concrete, rip-rap (boulders) or other armoring, here’s a quick check-list of agencies and agreements that need to be reviewed:
Streambed Alteration Agreement. California Department of Fish & Game must be notified of the proposed development, the developer/property owner must fill out the alteration agreement paperwork, outlining what they are doing to the stream, and work out a suitable mitigation program with DFG. The more wildlife and native vegetation you have documented on your stream, the greater the mitigation will have to be. This holds regardless of whether or not there are endangered species on your property. You may have nothing more significant that the non-native tree squirrel but the stream still has habitat value.
Clean Water Act Section 404 (Dredging & Filling). This may not be applicable to your stream – but you should check. If your stream is a “Navigable” waterbody as defined by the Army Corps of Engineers, or is a tributary that would harm a navigable waterbody if it is filled, then Section 404 applies. It’s a permit, that limits or establishes mitigation for actions taken to the creek. Contact the Army Corps regulatory division to find out if this law applies to your stream.
Clean Water Act Section 401 (Water Quality Certification). The Regional Water Quality Control Board (RWQCB), a state agency, handles this part of the federal Clean Water Act. Their job here is to make sure that the physical condition of water isn’t impacted by the filling of a stream. Your job is to make the case to them that filling a stream degrades water quality – dredging impacts water clarity, for instance (although a temporary impact). Lining a stream in concrete increases stream velocities, which can cause erosion and bank failure downstream. Actions like that impact water quality.
The Porter-Cologne Act is a state water quality standard that should also help you and is tied to RWQCB oversight – although I’m not really familiar with what permits are connected to it and will expand this section as I find out.
Endangered Species Act. Now in the unlikely event that you do have an endangered species, you can turn to US Fish & Wildlife for support. But bear in mind, they have relocated species and allowed developments to move forward…
Stream Protection ordinances. The best way to protect a stream is to enact an ordinance that simply bans development in the stream and its riparian zone. Many cities have enacted such ordinances, the best ones have a comprehensive definition of a stream (in Southern California, we need to make sure the definition includes intermittent and ephemeral streams) and a variance or other clause that allows extra review for a developer who might otherwise lob a takings claim at the city or county jurisdiction. Environmental protection has lost out to property rights over the last 8 years in the courts – so be sure to include a variance of some kind – otherwise your ordinance will just be a neat idea that doesn’t last a millisecond.
Of course, education and outreach always help. And a good public turnout in defense of your creek could be enough to sway a Planning Commission – but not always. So keep these agencies in mind, and consider the proactive approach of a good stream protection ordinance.