STATE LEGISLATION

    The San Francisco Bay Conservation and Development Commission (BCDC) is a State agency which was formed in accordance with the McAteer-Petris Act, Gov. Code §66600 et seq. The BCDC was established to regulate fill and development in the San Francisco Bay. The Commission's San Francisco Bay Plan is a comprehensive and enforceable plan to protect the waters of the Bay system and its tidal marshes, managed wetlands, and salt ponds, and to guide the development of its shoreline to its highest potential with the minimum amount of Bay fill and assure increased public access to the Bay. The Commission has the authority to grant or deny permits for any project that involves placing fill, extracting materials, or making any substantial change in use of any water, land, or structure within its jurisdiction. The Commission may not deny a permit for a project in the shoreline band for any reason other than the failure of the project to provide maximum feasible public access to the bay and its shoreline. The San Francisco Bay Area Seaport Plan developed in coordination with the Metropolitan Transportation Commission establishes priority use sites for port development. Regulatory/Responsible Agency: San Francisco Bay Conservation and Development Commission (BCDC).

    The California Environmental Quality Act (CEQA), Pub. Res. Code §21000 et seq., declares that it is the policy of the State to "ensure that the long-term protection of the environment...shall be the guiding criterion in public decisions." These decisions should be "consistent with the provision of a decent home and suitable living conditions for every Californian." CEQA requires the preparation of a formal document (an Environmental Impact Report [EIR] or Negative Declaration) that presents to decision-makers and to the public the potential environmental impacts of a proposed project. Mitigation measures for each significant impact must be addressed in the environmental document. Projects which come under CEQA review include public, as well as private projects which require approval by a State or local agency (lead agency). Each State and local agency must adopt procedures to implement CEQA consistent with CEQA and the Guidelines. Regulatory/Responsible Agency: Governor's Office of Planning and Research; State Resources Agency.

    The California Water Code contains provisions affecting water quality, appropriations, and water quality. Division 1 of the Water Code establishes the State Water Resources Control Board (SWRCB). Division 2 provides that the SWRCB shall consider and act upon all applications for permits to appropriate waters. The SWRCB is required to consider water quality factors in granting a water right. Division 3 addresses dams and reservoirs; Division 5 pertains to flood control; Division 6 controls conservation, development, and utilization of the State water resources; Division 7, commonly referred to as the Porter-Cologne Water Quality Control Act, covers water quality protection and management; and Divisions 11 through 21 provide for the organization, operation, and financing of municipal, County, and local water-oriented agencies.

    This Act, Water Code §13000 et seq., provides for aesthetic values, fish and wildlife preservation, water reclamation, and comprehensive planning and regulation to attain the highest "reasonable" water quality in consideration of conflicting demands. The Act requires the Regional Water Quality Control Board to establish water quality objectives and adopt water quality control plans (commonly referred to as Basin Plans).

    California's Porter-Cologne Water Quality Control Act (1969), which became Division 7 ("Water Quality") of the State Water Code, establishes the responsibilities and authorities of the nine Regional Water Quality Control Boards (previously called Water Pollution Control Boards) and the State Water Resources Control Board (SWRCB). The Porter-Cologne Act names these Boards "...the principal State agencies with primary responsibility for the coordination and control of water quality" (Section 13001). Each Regional Board is directed to "...formulate and adopt water quality control plans for all areas within the region." A water quality control plan for the waters of an area is defined as having three components: beneficial uses which are to be protected, water quality objectives which protect those uses, and an implementation plan which accomplishes those objectives (Section 13050). Further, "such plans shall be periodically reviewed and may be revised" (Section 13240).

    The Porter-Cologne Water Quality Control Act also serves ensure California's eligibility to implement the National Pollutant Discharge Elimination System permit process required by the Federal Clean Water Act. The Act designates the State Water Resources Control Board as the "State water pollution control agency" for the purposes of implementing the Clean Water Act and directs the SWRCB to take the actions required by that Act. Regulatory/Responsible Agency: California State Water Resources Control Board (SWRCB) and Regional Water Quality Control Boards (RWQCB).

    The California Wild and Scenic Rivers Act, enacted in 1972, begins with the following legislative declaration (Section 5093.50):

"It is the policy of the State of California that certain rivers which possess extraordinary scenic, recreational, fishery, or wildlife values shall be preserved in their free-flowing state, together with their immediate environments, for the benefit and enjoyment of the people of the State. The Legislature declares that such use of these rivers is the highest and most beneficial use and is a reasonable and beneficial use of water within the meaning of Section 2 of Article X of the California Constitution. It is the purpose of this chapter to create a California Wild and Scenic Rivers System to be administered in accordance with the provisions of this chapter."

    The California Wild and Scenic Rivers Act received major amendments in 1982 (Assembly Bill 1349), 1986 (Assembly Bill 3101), 1993 (Assembly Bill 653), and minor amendments in 1992 (Assembly Bill 3355).

    The Act defines "free-flowing" as "existing of flowing without artificial impoundment, diversion, or other modification of the river;" however, the existence of minor structures does not ban a river from being considered for inclusion in the System. The Act defines "river" as "the water, bed, and shoreline of rivers, streams, channels, lakes, bays, estuaries, marshes, wetlands, and lagoons, up to the first line of permanently established riparian vegetation" (Section 5093.52[c]). The Act defines "immediate environments" only generally as the land "immediately adjacent" to designated segments (Section 5093.52[h]).

    Rivers or segments of rivers included within the California Wild and Scenic Rivers System are classified by the Legislature as "wild," "scenic," or "recreational" (Section 5093.53). "Wild rivers" are free of impoundments and generally are inaccessible except by trail, with primitive watersheds or shorelines and unpolluted waters. "Scenic rivers" are free of impoundments, with shorelines or watersheds still largely primitive and shorelines largely undeveloped but accessible in places by roads. "Recreational rivers" are readily accessible by road or railroad, may have some development along their shorelines, and may have been impounded or diverted in the past.

    The Act originally designated certain segments and tributaries of the Klamath, Scott, Trinity, Smith, Eel, Van Duzen, and American rivers as components of the California System. The Salmon River (tributary to the Klamath) was added in 1982 and specific segments of the West Walker River and the East Fork Carson River were included in the System in 1989. More than 1,900 miles of California rivers, or about 7 percent of all rivers in the state, are under wild and scenic protection.

    No dam, reservoir, diversion, or other water impoundment facility may be constructed on any river included in the Wild and Scenic River System. (This prohibitation does not apply to temporary flood storage facilities on the Eel River [Section 5093.55]). The prohibition of water impoundments does not apply to construction of temporary impoundments for recreational purposes on segments of rivers with a history of these impoundments.

    No water diversion facility may be constructed on any river included in the System unless the Secretary determines that the facility is needed to supply domestic water to local residents and that the facility will not adversely affect the river's free-flowing condition and natural character (Section 5093.55). Agencies of the State of California may not assist other government agencies in the planning or construction of any water impoundment facility that could adversely affect the free-flowing condition and natural character of rivers included in the System (Section 5093.56).

    The intent of this Act is to utilize, restore and protect the forest resources, recreational opportunities, and aesthetic enjoyment of State timberlands, while providing watershed protection and maintaining fisheries and wildlife. The Act outlines specific resource conservation standards. The Board is required to divide the State into districts, which are subsequently represented by Technical Advisory Committees that advise the Board. The Act establishes a permit process, with penalties for violations of the permit or Act. Regulatory/Responsible Agency: State Board of Forestry.

    The State Subdivision Map Act requires that a subdivision map be reviewed and approved by the appropriate local government for all projects creating five or more parcels of land or condominiums. Maps may be denied if a finding is made that the subdivision and proposed improvements are likely to cause substantial environmental damage. In general, local governments must incorporate adequate criteria or habitat descriptions into their subdivision ordinances to implement the State law. Section 66478.1 of the Subdivision Map Act requires public access to rivers to be provided by the subdivision.

    The Surface Mining and Reclamation Act (SMARA) of 1975 is set forth in Public Resources Code, Division 2, Chapter 9, §§2710-2795. The Act directed the State Mining and Geology Board to adopt regulations which establish State policy for the reclamation of mined lands including measures to be employed by lead agencies in specifying grading, backfilling, resoiling, revegetation, soil compaction, and other reclamation requirements, and for soil erosion control, water quality and watershed control, waste disposal, and flood control. The State policy adopted by the Mining and Geology Board shall be used as standards by lead agencies in preparing specific and general plans, including the conservation and land use elements of the general plan, and zoning ordinances. The Act prohibits conducting surface mining operations unless a permit is obtained from, and a reclamation plan has been submitted to, and approved by, the lead agency.

    Section 2772 of the Surface Mining and Reclamation Act of 1972 specifies specific information and documents which must be included in a reclamation plan. In addition to the information required by the Public Resources Code §2772, the following elements are to be included in a reclamation plan (§3502[b]).

1. The environmental setting of the site of operations and the effect that possible alternate reclaimed site conditions may have upon the existing and future uses of surrounding lands.
2. The public health and safety, giving consideration to the degree and type of present and probable future exposure of the public to the site.
3. The designed steepness and proposed treatment of the mined lands' final slopes shall take into consideration the physical properties of the slope material, its probable maximum water content, landscaping requirements, and other factors.
4. Areas mined to produce additional materials for backfilling and grading, as well as settlement of filled areas, shall be considered in the reclamation plan.
5. Disposition of old equipment.
6. Temporary stream or watershed diversions.

Section 3503 establishes minimum acceptable practices to be followed in surface mining operations.

(a)  Soil erosion control:

  
1. The removal of vegetation and overburden, if any, in advance of surface mining shall be kept to the minimum.   
2. Stockpiles of overburden and minerals shall be managed to minimize water and wind erosion.   
3. Erosion control facilities, such as retarding basins, ditches, streambank stabilization, and diking, shall be constructed and maintained where necessary to control erosion.

(b)  Water quality and watershed control.

1. Settling ponds or basins shall be constructed to prevent potential sedimentation of streams at operations where they will provide a significant benefit to water quality.
2. Operations shall be conducted to substantially prevent siltation of groundwater recharge areas.

(c)  Protection of fish and wildlife habitat. All reasonable measures shall be taken to protect the habitat of fish and wildlife.

(d)  Disposal of mine waste rock and overburden. Permanent piles or dumps of mine waste rock and overburden shall be stable and shall not restrict the natural drainage without suitable provisions for diversion.

(e)  Erosion and drainage. Grading and revegetation shall be designed to minimize erosion and to convey surface runoff to natural drainage courses or interior basins designed for water storage. Basins that will store water during periods of surface runoff shall be designed to prevent erosion of spillways when these basins have outlet to lower ground.

(f)  Resoiling. When the reclamation plan calls for resoiling, coarse, hard mine waste shall be leveled and covered with a layer of finer material or weathered waste. A soil layer shall then be placed on this prepared surface. Surface mines that did not salvage soil during their initial operations shall attempt, where feasible, to upgrade remaining materials. The use of soil conditioners, mulches, or imported topsoil shall be considered where revegetation is part of the reclamation plan and where such measures appear necessary. It is not justified, however, to denude adjacent areas of their soil, for any such denuded areas must in turn be reclaimed.

(g)  Revegetation. When the reclamation plan calls for revegetation, the available research addressing revegetation methods and the selection of species having good survival characteristics, for the topography, resoiling characteristics, and climate of the mined ares shall be used.

    In January of 1993, the State Mining and Geology Board adopted Reclamation Standards Regulations, Article 9, §§3700-3713, for the reclamation of surface mining sites. The general purpose of the reclamation standards regulations is to implement, interpret, and make specific the provisions of Public Resources Code Section 2773(b); specifically, to establish minimum, verifiable statewide standards for the reclamation of mined lands, which will apply to each mining operation to the extent that they are consistent with the planned or actual subsequent uses of the mining site. These regulations establish minimum standards for reclamation for: 1) wildlife habitat; 2) backfilling, regrading, slope stability, and recontouring; 3) revegetation; 4) drainage, diversion structures, waterways, and erosion control; 5) prime and other agricultural land; 6) building, structure, and equipment removal; 7) stream protection, including surface and groundwater; 8) topsoil salvage, maintenance, and redistribution; 9) tailing and mine waste; and 10) closure of surface openings. The regulations also clarify that financial assurances for reclamation shall be consistent with both the approved reclamation plan and the reclamation standards, to the extent that the standards apply to individual mining operations. Regulatory/Responsible Agency: California Department of Conservation (Division of Mines and Geology).

    The Resource Conservation Act of 1975 (AB-850) established a nine-member State Resource Conservation Commission and Resource Conservation District for the purposes of soil and water conservation, protection of water quality and water reclamation. The Act provides for prevention and control of soil erosion on public and private lands. Regulatory/Responsible Agency: State Resource Conservation Commission; Resource Conservation District.

    The basic goals of the California Coastal Act, Pub. Res. Code §3000 et seq., are to protect, maintain, and where feasible, enhance and restore the coastal environment including coastal estuaries, watersheds, wildlife habitats and recreational areas; ensure orderly and balanced utilization and conservation of coastal zone resources; maximize public recreational opportunities consistent with sound resources conservation principals; and ensure priority for coastal-dependent development over other development on the coast.

    The California Coastal Act established the California Coastal Commission which is vested with both planning and regulatory authority. Determining whether Federal project activity is consistent with the California Coastal Management Program is one of the responsibilities of the Commission. The Act also established a permitting program which requires the Commission to review and issue coastal development permits for tidelands, submerged lands, and public trust lands.

    The Act requires local governments within the coastal zone to develop and implement local coastal plans approved by the Commission. The Commission has the authority to issue all coastal zone permits, until a local coastal program has been at least partially approved. Once a local coastal program has been approved by the Commission, the Commission retains only appellate authority over locally issued coastal development permits, except for those types of lands listed above. Specific provisions of the Act protect wetlands and other sensitive habitats. These are outlined below. Regulatory/Responsible Agency: California Coastal Commission (CCC).

Section 30240 (a) - "Environmentally sensitive habitat areas shall be protected against any significant disruption of habitat values, and only use dependent on such resources will be allowed within such areas."

Section 30240 (b) - "Development in areas adjacent to environmentally sensitive habitat areas...shall be sited and designed to prevent impacts which would significantly degrade such areas..."

Section 30230 - "Marine resources shall be maintained, enhanced, and, where feasible, restored. Special protection will be given to areas and species of special biological...significance."

Section 30231 - "The biological productivity and quality of coastal waters, streams, wetlands, estuaries, and lakes appropriate to maintain optimum populations of marine organisms...shall be maintained and, where feasible, restored."

Sections 30007.5 and 30250 - "...protection of resources - including sensitive habitats... has priority over all other land uses.

    The intent of the Act, Pub. Res. Code §§29000-29612, is to protect and enhance the wetlands of the Suisun Marsh. The BCDC's jurisdiction was expanded to include the wetlands of the Suisun Marsh. The BCDC is responsible for the preparation and implementation of the Suisun Marsh Protection Plan. The Plan was implemented in conjunction with local governments and special districts. Regulatory/Responsible Agency: San Francisco Bay Conservation and Development Commission (BCDC).

    Through the passage of Senate Concurrent Resolution 28 (September 13, 1979), the Legislature, in recognition of the importance of wetlands, indicated its intent "to preserve, protect, restore, and enhance California's wetlands and the multiple resources which depend on them for the benefit of the people of the State." A specific goal under this resolution, is to increase the amount of wetland habitat in the State by 50 percent by the year 2000. The resolution directed the DFG to submit to the Legislature a plan by January 1, 1983, which will identify "means by which existing wetlands can be protected from conversion to other land uses and be managed in such a manner as to optimize their value as waterfowl habitat, former wetland can be restored to wetland States and new wetlands created, and additional recreational benefits can be provided on existing, restored, or newly-developed wetlands." Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    The Urban Creek Restoration and Flood Control Act of 1984 authorized the California Department of Water Resources (DWR) to establish a program of urban creek protection, restoration, and enhancement. Components of the program specified in the Act include providing assistance to local agencies and organizations for the purposes of stabilizing natural stream channels, managing riparian vegetation, and maintaining the channel's capacity to meet flood damage reduction needs; and awarding grants and contracts to local agencies and organizations for on-site restoration work according to the policies, procedures, practices, and guildelines acceptable to DWR and the California Department of Fish and Game (DFG). The Act also authorizes DWR and DFG to develop model site design and planning policies intended to assist local agencies which request help in implementing General Plan guidelines for meeting flood control and related land management needs.

    Eligibility for an urban stream restoration grant requires a partnership between a local government agency and a citizens group which has an interest in the proposed project. Grant applications are judged according to priorities agreed upon by DWR and DFG including: 1) projects which are designed to relieve the magnitude or severity of flooding and/or to protect property and resources from streambank failure; 2) projects which accomplish a low-cost means of flood damage reduction while protecting, restoring, and enhancing natural environmental values including restoration of native riparian vegetation and habitats; 3) projects which will restore culverted or channelized segments to a condition which optimizes the natural, recreation, and aesthetic values of the stream consistent with flood control objectives; and 4) projects incorporating an innovative or unprecedented departure in the field of stream restoration. As of late 1995, all available funding had been allocated. Regulatory/Responsible Agency: California Department of Water Resources (Urban Stream Restoration Program).

    It is the policy of the California Fish and Game Commission to "seek to provide for the protection, preservation, restoration, enhancement, and expansion of wetland habitat in California." Further, it is the policy of the Fish and Game Commission to strongly discourage development in, or conversion of, wetlands

    The Commission "opposes any development or conversion which would result in a reduction of wetland acreage or wetland habitat values." Projects that affect wetlands must either avoid affecting wetlands altogether or, at a minimum, provide mitigation measures sufficient to assure that "no net loss" of either wetland habitat values or acreage occur. The Commission prefers mitigations which "achieve expansion of wetland acreage and enhancement of wetland habitat values." The non-regulatory nature of the Policy requires that DFG work closely with local, State, and Federal governmental agencies to meet its objectives. The DFG, per Fish and Game Code, must carry out the Policy of the Commission. Regulatory/Responsible Agency: California Department of Fish and Game (DFG); California Fish and Game Commission.

    The California Riparian Habitat Conservation Act (added to Fish and Game Code [Sections 1385-1391] by Stats 1991 ch 762 §3, eff. 1/1/92) established the California Riparian Habitat Conservation Program administered through the Wildlife Conservation Board of the State Department of Fish and Game. The purpose and goal of the program is "to protect, preserve, and restore riparian habitats throughout the State by the acquisition of interests and rights in real property and waters to the extent deemed necessary to carry out the purposes of the program."

    The preservation and enhancement of riparian habitat shall be a primary concern of the Wildlife Conservation Board and the Department, and of all State agencies whose activities impact riparian habitat. The board, pursuant to this chapter, shall approve projects to acquire, preserve, restore, and enhance riparian habitat throughout the State, and coordinate its activities undertaken pursuant to this program with other resources protection activities of the board and other State agencies.

    In order to accomplish the objectives, the Wildlife Conservation Board may authorize the department to do all of the following:

1. Acquire interests in real property and water rights through gift, purchase, lease, easement, and transfer or exchange of easements, development rights or credits, and other interests in real property.
2. Coordinate its activities under the program with any governmental program for surplus real property sales in the State.
3. Award grants and loans to local public agencies, State agencies, Federal agencies, and nonprofit organizations for the purposes of this program.
4. Exercise any authority and comply with requirements contained in Sections 1348 and 1350, as appropriate, to preserve and enhance riparian habitat.

    The general industrial stormwater permit regulations control stormwater discharge into waterways by industry. The permit process requires a pollution prevention plan and a monitoring program to be filed with the SWRCB, (RWQCB). The first filing by water districts was required in October 1992 and will be required annually thereafter. Regulatory/Responsible Agency: State Water Resources Control Board (SWRCB), Regional Water Quality Control Boards (RWQCB).

    The State requires a permit for any vacuum or suction dredging in any river, stream, or lake, and DFG may restrict dredging in certain areas. (Note: Such activities may also be regulated by the U.S. Army Corp of Engineers (Corps) if the water is navigable or the dredged material is discharged into waters of the United States.) Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    Any person, public agency, or public utility proposing an activity that substantially diverts, alters, or obstructs the natural flow or substantially changes the bed, channel, or banks of any river, stream, or lake must give notice to the California Department of Fish and Game (DFG) under Sections 1601 (public project) and 1603 (private project) of the California Fish and Game Code. All waterways of the State, including intermittent streams, are subject to DFG's jurisdiction. Plans of such projects must be submitted to the DFG for evaluation of impacts to aquatic and wildlife resources. Based on their impact evaluation, DFG will propose modifications to the project in order to mitigate the impacts. The modifications must be agreed upon by DFG and project proponents. If agreement on conditions for a lake and streambed alternation agreement can not be reached between DFG and the project proponent, Section 602 provides for binding arbitration by a panel to formulate the agreement. Such projects cannot commence until DFG has determined that adverse impacts to the resources will not result or until adequate mitigation measures are incorporated into the project. If DFG does not grant or deny approval of a project within 30 days of notification, the applicant may proceed with the work.

    A Lake/Streambed Alternation cannot be used to authorize the take of a State or Federally-listed threatened or endangered species. If a proposed project may result in the take of a threatened or endangered species, the project proponent must consult with the Department and negotiate a separate "Endangered Species Management Agreement" pursuant to FGC Section 2081 prior to negotiating a Streambed Alternation Agreement. State lead agencies must consult pursuant to FGC Sections 2090 and 2091. For those lake and streambed agreements affecting wetlands, proposed activities must comply with the DFG's 1990 wetland protection guidelines which prefer alternatives that avoid impacts to wetlands. Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    A State policy which encourages the conservation, maintenance, and utilization of the living aquatic resources of the ocean and other waters within the State's jurisdiction. The objectives of the policy are: (1) the maintenance of sufficient populations of species of organic organisms; (2) the recognition of the aesthetic, educational, scientific and non-extractive recreational uses of the living resources of the California Current; (3) the maintenance of a sufficient resource to support reasonable sport use; (4) the growth of local commercial fisheries; and (5) the management of the State's fisheries. Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    California Code 66600 authorizes the BCDC to: (1) regulate all fill and dredge activities within the tidal wetlands of the San Francisco Bay; (2) regulate development within 100' inland from the mean high tide line of the bay; and (3) minimize the development of "special use areas" (i.e., areas which can serve as ports). Regulatory/Responsible Agency: San Francisco Bay Conservation and Development Commission (BCDC).

    In an effort to reduce nonpoint source pollution, the Federal Clean Water Act now requires a municipal stormwater permitting process for municipalities with over 100,000 people. This permitting process is administered by SWRCB, (RWQCB). Section 405 amended Section 402 and required monitoring and reporting of stormwater pollutants. Regulatory/Responsible Agency: State Water Resources Control Board (SWRCB), Regional Water Quality Control Boards (RWQCB).

    It is unlawful to deposit in, permit to pass into, or place where it can pass into the waters of the State of California 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, edgings.
4. any factory refuse, lime or slag.
5. any cocculus indicus.
6. any substance or material deleterious to fish, plant life or bird life.

    Fish and Game Code 1606 requires that plans for timber harvesting must include the following:

1. the volume, type, and equipment to be used in removing or displacing any one or combination of soil, sand, gravel or boulders.
2. the volume of water, intended use, and equipment to be used in any water diversion or impoundment, if applicable.
3. the equipment to be used in road or bridge construction.
4. the type and density of vegetation to be affected and an estimate of the area involved.
5. a diagram or sketch of the location of the operation which clearly indicates the stream or other water and access from a named public road. Locked gates shall be indicated. The compass direction must be shown.
6. a description of the period of time the operation will be carried out.

    Regulatory/Responsible Agency: California Department of Fish and Game (DFG).

    In California, sovereign rights and responsibilities of the State which are traditionally associated with real property ownership have been delegated to the State Lands Commission (SLC). The Public Trust Doctrine, as it affects these rights, is designed to protect the rights of the public to use watercourses for commerce, navigation, fisheries, recreation, open space, preservation of ecological units in their natural state, and similar uses for which those lands are uniquely suited. Under this doctrine (Common Law, also see People v. California Fish Co., 166 Cal.3d. 251, 1913; Marks v. Whitney, 6 Cal.3d. 251, 1970; National Audubon Society v. Superior Court, 33 Cal.3d. 419, 1983), title to tidelands and lands under navigable water are held in trust by the State for the benefit of the public. Acquired rights in navigable streams, lakes, and tidelands are subject to the trust and assert no vested right in a manner harmful to the public trust. The Public Trust Doctrine requires the SWRCB to "balance" the potential value of a proposed or existing diversion with the impact on the trust resources. Fish and wildlife are public trust resources in the custodial care of DFG.

    The State Lands Commission has exclusive jurisdiction over all ungranted tidelands and submerged lands owned in the State and the beds of navigable waterways, such as rivers, sloughs, and lakes (Pub. Res. Code 6301). The State's ownership of these lands includes lands lying below the ordinary high-water mark of tidal waterways and below the ordinary low-water mark of non-tidal waterways (Civil Code Section 830). The area between the ordinary high- and low-water marks on non-tidal waterways is subject to a "public trust easement". This easement is also under SLC jurisdiction

    Determining the location of the boundary separating private lands from State lands is often a complex and difficult task because of natural changes, such as erosion or accretion, and human changes, such as dredging, filling, and diking.

    The SLC reviews projects affecting tidal and non-tidal waterways for consistency with the "public trust doctrine". This doctrine restricts the kinds of uses for which State lands may be utilized. Permitted uses typically include public uses of waterways for navigation, commerce, fisheries, recreation, and environmental protection. Generally, the SLC analyzes proposed uses of a project and determines whether the proposed use will be consistent with the public trust doctrine and what the proper balance of those uses should be.

Public Trust - Sovereign Fee Ownership

    The State owns, as trustee for the public, the beds of tidal navigable rivers and streams up to the Ordinary High Water Mark (under natural conditions, that elevation reached by the average of all high tides over an 18.6 year period). In the case of non-tidal navigable rivers and streams, if the adjacent uplands have been conveyed into private ownership, the State in most circumstances holds sovereign title, in trust, up to the Ordinary Low Water Mark. Where the State owns the fee interest in the underlying land, its ownership has some of the same characteristics of private property ownership, but is subject to the constraints of the pubic trust doctrine. The State can and does require compensation to the public for any private use of its property, including both surface use and the extraction of resources from the land. However, the State does not have the unfettered right to alienate its trust property.

Public Trust - Easement

    Along navigable non-tidal waterways, the State also owns a right often termed the "public trust easement" in the area between the Ordinary Low Water Mark and Ordinary High Water Mark. The State has both the right and the obligation to balance competing land uses in the easement area. In general, the title of a private owner of the fee underlying the State's easement is subservient to the easement, although the fee owner may use the lands in any way "not inconsistent with the public trust needs." In some instances, the State has retained a fee interest in the area between the Ordinary Low Water Mark and Ordinary High Water Mark. A title search is generally needed to verify the status of the State's interests vis-a-vis those of the upland owner.

Navigation Rights

    In California, members of the public have a right to utilize for boating, fishing, and similar water dependent uses any waterway that is susceptible of being navigated by even the smallest recreational craft, where access to the waterway may be legally obtained. Under well established California law, this right to utilize such waterways exists even where the bed is privately owned.

Right to Abate Nuisance

    The State has a right (and, under trust law, an obligation) to seek to abate any nuisance activity, whether on public or private property, which can be demonstrated to have a deleterious effect upon the property, or the rights associated with the property, which is subject to the Public Trust Doctrine. Obstructions to navigation and the pollution of waterways are examples of types of nuisances that can be abated.

Access

    The Act for the Admission of California to the Union, and the State Constitution, provide that protection of the public's right to use navigable waters is a paramount responsibility of State government. Several statutory provisions exist (most notably, the Subdivision Map Act) which require that public access to and along waterways be provided. The public does not, however, have a right to cross private property to access public waterways unless there is a legally protected express or implied right to do so.

Regulatory/Responsible Agency: California State Lands Commission (SLC).