Steve Loup, the county’s public works administrator, informed the board of supervisors on March 28 that individuals could go into Pacheco Creek, on an emergency basis, to clean out debris, some of which has amassed for decades. The new policy took effect Jan. 12, 2023.
This is a total reversal of decades of controversial control by the California Department of Fish and Wildlife (CDFW) over counties and property owners’ property maintenance. Previous CDFW rules prevented them from maintaining waterways and clearing debris. Several projects in the county were adversely affected (San Juan Oaks 55+ housing) or stopped altogether (straightening of John Smith Road) because of CDFW’s concerns over protecting endangered species such as the California tiger salamander and the fairy shrimp.
Board chair Mindy Sotelo stated that CDFW policies have played a part in the flooding issues and said she was “excited” to see a shift in the agency’s position.
The purpose of the notice, which is on the county’s website, is to help clarify what is permissible emergency work. Notification of 14 days after work began is required for emergency work identified under CDFW Code Section 1610.
CDFW stated that the intent is to be more flexible with emergency work but supervisors were concerned about the lack of definition that could potentially backfire on those doing the work.
“As California experiences an onslaught of intense winter storms, known as ‘atmospheric rivers,’ the California Department of Fish and Wildlife is ready and able to assist entities dealing with and preparing for these weather events,” the notice stated. “Preparing for future events may include work in or near rivers and streams that require you to notify CDFW under Fish and Game Code section 1601 and if required, to obtain a lake or streambed alteration agreement from CDFW before beginning the work.”
The January notice stated that property owners do not need to obtain a permit from CDFW unless they intend to perform any of the following three actions:
- Substantially divert or obstruct the natural flow of any river, stream, or lake.
- Substantially change or use any material from the bed, channel, or bank of any river, stream, or lake; or
- Deposit or dispose of debris, waste, or other materials containing crumbled, flaked, or ground pavement where it may pass into any river, stream, or lake.
“There’s often a lot of questions about when that work can be done and what work can be done,” said Sarah Paulson, environmental program manager with CDFW’s Fresno regional office, told the supervisors via Zoom. “Work can be done in advance of a potential emergency this year. We’ve had a lot of prediction of very heavy storm events. So in preparation for those types of events, the emergency activities can be done. They can be done during the flooding and we absolutely understand that at this point a lot of folks can’t actually access areas where there’s been a lot of damage. It’s totally conceivable that it may not be until late summer before some folks can get out there and repair damages and that’s totally reasonable.”
Yareny Alfaro-Jones, whose parents’ home along Lovers Lane has been flooded at several times since January, said, “We have desperate situations with our homes being destroyed and given that you gave the green light that we are able to clean up these creeks and the debris, what does Fish and Wildlife do in the cleaning up? There’s a lot of grey area about who has the boots on the ground to actually clean up.”
Paulson responded it is not CDFW’s role to clean up private properties. She said, though, that CDFW has a number of grants available to landowners who have extensive damage. She said there is no solicitation period to apply for a grant.
Rob Bernosky, who attended the meeting on Zoom, wanted clarification about the definition of an “emergency.”
“Everybody is scared to death of being accused of a criminal act by merely cleaning up what they deem to be an emergency,” he said, “Everybody has the best intentions but are we more less indemnified by going to that process so that we don’t have to worry about some criminal indictment coming down or something civil penalty.”
Paulson did not respond to his request for a clear definition.
Supervisor Bea Gonzalez said she had heard there was a 50- to 60-day limit from the time of the latest event to use the emergency process. She wanted to know who determines when that timeframe begins.
Paulson said, as far as CDFW is concerned, there is no time limit, “as long as they’re done in a reasonable timeframe,” she said.
What is a “reasonable timeframe” was the sticking point for Supervisors Angela Curro and Kollin Kosmicki.
“Let’s say these storms continue and the property owner is unable to access the property this year,” Curro said. “It is possible that it may have to dry-out one or two years. You said ‘reasonable timeframe.’ It’s really not the county that sets that. It’s an individual case-by-case situation.”
“Hypothetically, let’s say that we went into low-water years over the next couple years,” Paulson said. “If someone waited quite a long time to address that emergency work, I think that’s a little tough for argument. It can be about access or safety or could potentially be that there’s a property with extensive damage and it just takes time to get to all of those sites that need attention.”
Kosmicki said there was a “cloud of uncertainty” about the time frame.
“What if it’s a year from now?” he asked. “Is the state going to make notification to the county that this is the cutoff, that you no longer can do this? I just don’t quite understand the vagueness of the ‘reasonable timeframe.’”
Paulson reiterated that CDFW’s code does not have a timeframe, which, she said, “Actually benefits folks in a lot of ways because there is no 50-day or 90-day window.”
She admitted the process is “not abundantly clear” and suggested people should use “reason going through the process.”
“I would say any folks that are out there doing the work should have a copy of the memo [or notice] with you and a copy of your notification [to proceed], from the Central Region of CDFW just be clear that you’re doing the work under Fish and Wildlife Code 1610,” Paulson said. “We’re not here to stop people from cleaning up their properties and cleaning out streams. We understand how important that is for a number of reasons including public safety.”
Sotelo said, “It sounds like Fish and Wildlife is willing to listen and help and be part of the solution. That’s exciting because it has not always been the case. There’s been some real challenges with that and I think that’s part of the reason that we’re kind of in this situation we are today, so hopefully we are able to, as a county, work with property owners to get all of these creeks and waterways cleaned out so that we don’t have this devastating flooding again.”
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