MEMORANDUM
OF UNDERSTANDING
Between
And
CALIFORNIA DEPARTMENT OF
FISH AND GAME
Regarding
ROUTINE MAINTENANCE
ACTIVITIES
IN UNIMPROVED and IMPROVED
CHANNELS
This Memorandum of Understanding (MOU) by and between
the California Department of Fish and Game, hereinafter called the
"Department", and the County of XXXXX, hereinafter called the
"County", is for the purpose of delineating and defining routine
maintenance activities in improved channels and unimproved natural channels and
shall not require further notice and agreement in compliance with Section 1601
of the Fish and Game Code.
WHEREAS, Section 160l of the
Fish and Game Code allows the Department to propose reasonable modifications to
Streambed Alteration Projects which would allow for the protection and
continuance of existing fish and wildlife resources that may be substantially
adversely affected by that construction project; and
WHEREAS, with regard to any project that involves routine
maintenance and operation of water supply, drainage, or flood control
facilities, notice to, and agreement with, the Department is not required
subsequent to the initial notification and agreement, unless the work as
described in the agreement is substantially changed or conditions affecting
fish and wildlife resources change, and the resources are adversely affected by
the activity conducted under the agreement; and
WHEREAS, it is essential that the County perform
routine maintenance activities within improved channels and unimproved
natural channels to maintain the designed capacity of the channel(s), to
protect the County's investment, to prevent loss of life and property, and to
promote efficient and wise use or disposal of water; and
WHEREAS, consistent with the policies of California
Fish and Game Code Section 1600 et seq., the protection and conservation of the
fish and wildlife resources of California are of utmost public interest, and
fish and wildlife conservation is a proper responsibility of the State; and
define
routine maintenance, to establish procedures to expedite maintenance
activities, and to
provide for the protection and continuance of the existing fish or wildlife resources during such maintenance activities; and
WHEREAS, nothing in this agreement shall constitute
a waiver of any future or current Department claims to the use and maintenance
of natural conditions under the public trust doctrine; and
WHEREAS, nothing in this agreement shall constitute
a waiver of the County's claimed rights to maintain and operate the channel(s)
solely from the flood control standpoint without a 1601 agreement; and
WHEREAS, this MOU is not intended to affect the County's
rights under Fish and Game Section 1601 (f) to undertake emergency work
necessary to protect life or property.
NOW THEREFORE, the Department and
the County agree as follows:
I.
DEFINITIONS
The following definitions shall
govern this MOU:
Maintenance
activities
- Maintenance activities in channels are defined as the removal/displacement of
sand, silt, sediment, debris, rubbish, woody or aquatic vegetation and other
obstructions to flow; the control of weeds, grasses, and emergent vegetation;
and the cleaning, clearing, repair, and replacement of in-kind or similar
erosion control facilities and constructed channel improvements, all as
authorized to maintain the structural integrity and designed capacity of the
channels.
Diameter
Breast Height (DBH) - Diameter of a tree trunk at
a point measured 4 1/2 feet
above grade.
The
routine maintenance activities identified below, when performed on the
channel(s) and work area(s) not specifically identified in Exhibit 1 and in
accordance with the procedures described below, shall not require further
notice to, or agreement with, the Department.
A. Debris or Obstruction Removal
Removal
of debris, trash, rubbish, flood-deposited woody and herbaceous vegetation,
fallen trees, dead trees which are in clear danger of falling in or across the
channel, branches, and associated debris which noticeably reduces channel
capacity, would result in accelerated erosion and/or cause pump damage.
Mitigation Measure: All cleared vegetation and
debris shall be removed from the normal high water areas of the stream corridor
and shall not be redeposited within the 100-year flood plain.
B. Silt, Sand, or Sediment Removal
Removal/displacement
of silt, sand, or sediment in the immediate vicinity of man-made facilities or
structures, which cause obstruction to flow.
Mitigation Measure: Precautions to minimize
turbidity/siltation shall be taken into account during silt, sand, and sediment
removal activities. Silt, sand, and sediment removal operations shall be
limited to periods when there is low or no stream flow.
C. Vegetation Control
Control of aquatic and terrestrial vegetation may be performed with the use of mechanical devices, chemicals, or hand labor. Control of aquatic vegetation, weeds, grasses, shrubs and woody growth to remove obstructions to flow in improved channels and in the channel bottom from toe of slope to toe of slope of unimproved channels, as shown on Exhibit 1. Control of weeds and grasses on maintenance roads within the banks, to conduct facility inspection, by mechanical means, hand labor, or chemical application. Control of the lower branches of woody growth as necessary to eliminate those capable or retarding flow or deflecting currents into stream banks and which could reasonably be expected to lead to significant reductions in channel capacity or accelerated bank erosion. Trees with nesting birds present shall not be disturbed until after the young birds have fledged. Where appropriate, removal of non-native vegetation (bamboo, tree tobacco, castor bean, pampas grass, eucalyptus, acacia, etc.), including stump and root removal from top of bank to top of bank.
Standing
dead trees larger than 12-inches in DBH shall not be harmed, except that
standing dead trees may be removed to prevent imminent significant channel
capacity reduction and/or accelerated erosion.
Standing dead trees with nesting birds present shall
not be disturbed until after the young birds have fledged.
Mitigation
Measure:
Only herbicides registered with the California Department of Pesticide
Regulation shall be used. All herbicides shall be applied in accordance with
regulations set by the California Department of Pesticide Regulation. All
herbicides shall be used according to labeled instructions. Labeled
instructions for the herbicide used shall be made available to the Department
upon request.
Mitigation
Measure: If
any wildlife is encountered during the course of routine maintenance, said
wildlife shall be allowed to leave the maintenance area unharmed, and shall be
flushed, hazed, or herded in a safe direction away from the project site.
D. Repair of Previous Erosion Control Work
Work
shall consist of repair of failed rock, sacked concrete, or gabion section.
Maintenance activities shall be confined to the failed section and immediately
adjacent areas (adjacent areas not to exceed twenty (20) feet) affected
by the failure.
E. Minor
Erosion Control Work
Work
shall consist of sloping, installation of rock, gabions, or other erosion
control measures, from the toe of slope in the channel to a maximum of thirty
(30) feet, measured vertically, above the base of the channel to stabilize
the eroded area. The length of the project work shall be less than fifty
(50) feet.
Mitigation
Measure:
Project work shall be limited to periods when there is low or no stream flow.
Unless otherwise agreed, should stream flow exist, the stream flow shall be
diverted using gravity flow through temporary culverts/pipes or pumped around
the work site with the use of hoses. Any temporary dam or other artificial
obstruction constructed shall only be built from materials such as sandbags or
clean gravel, which will cause little or no siltation. When any dam or other
artificial obstruction is being constructed, maintained, or placed in
operation, sufficient water shall at all times be allowed to pass downstream to
maintain aquatic life below the dam. Project work shall be performed in a manner
that minimizes stream turbidity.
Mitigation
Measure: Removal
of vegetation shall be minimized. Trees greater than four
(4) inches DBH shall not be
removed without consultation with the Department. To the extent possible, the
stream channel shall be returned to its natural state and without creating a
possible future bank erosion problem
Maintenance activities shall be performed at a time
and in a manner so that the proposed maintenance activities minimize adverse
impacts and provide for the protection and continuance of the fish and
wildlife. All work shall be conducted only between May 15 and September 15 each
year (vegetation along banks out of the water may be sprayed with approved
herbicide prior to this date), except emergency work, as defined in Fish and
Game Code Section 1600 et seq. Additionally, streams sustaining an anadromous
fishery may, at any time at the discretion of the Department, be subjected to
further restrictions.
Use of heavy equipment in streambed or channel shall
be evaluated on a site-specific basis and notification shall be submitted for
each site where heavy equipment use is proposed in the streambed, except that
debris removal equipment may be moved alongside the creeks to accomplish
operations.
The County shall provide a written report to Warden
XXXXXXXX (or his successor), P.O. Box 1234, Any City, CA 95666, describing the
proposed maintenance activities and time schedule. The report shall be submitted
annually to the Department on or before May 1 of each year that this MOU
is in effect. The written report shall include the following information:
Location (address, map coordinates and/or drawing), problem description,
proposed solution, equipment to be used, and the scheduled date of proposed
activity. For unanticipated routine maintenance activities at locations not
previously identified in the annual notification, the County, when feasible,
shall provide the Department written notice of such activities 14 days prior to
commencement of the work.
An annual fee of $111.00 per watershed unit
shall be paid to the Department on or before May 1 of each year that
this MOU is in effect. This negotiated fee is based on the anticipated annual
costs that will be reasonably incurred by the Department to administer and
monitor the routine maintenance described in this MOU. Fee shall be mailed
directly to the Department of Fish and Game, 1701 Nimbus Rd, Suite A, Rancho
Cordova 95670, Attention Environmental Services.
VI. AMENDMENT AND TERMINATION
This MOU cannot be amended
or modified in any way except by a written agreement duly
executed
by the Department and the County. The Regional Manager or the official designated
by the Regional Manager must deliver any proposal for amendment or
modifications for review and approval. If the County gives notice to and
obtains the agreement of the Department to maintain additional specific
facilities on improved or unimproved channels, any such additional facilities
shall be added by written amendment to this MOU, and all provisions of this
Agreement shall apply.
This MOU becomes effective on receipt of signed MOU and the fee agreed to in section V. of this MOU. This MOU is valid for a period of five years from the date of receipt of the signed MOU and the fee agreed to in section V. of this MOU. Either party may terminate this MOU. Said termination shall become effective three (3) months after the party not initiating the termination has been duly notified in writing.
This MOU constitutes the entire Agreement and
understanding between the Department and the County for routine maintenance
activities. This Agreement supersedes all prior and contemporaneous routine
activity agreements, representation, understanding, if any, whether oral or
written.
A copy of this MOU must be provided to the
Contractor/work crew and must be in their possession at the work site. The MOU
shall be presented to any Department of Fish & Game employee inspecting the
stream maintenance activity.
VIII. OTHER ENVIRONMENTAL LAWS, STATUTES, OR REGULATIONS
This MOU does not constitute any form of
authorization, permit, biological opinion, or compliance with the requirements
and provisions of any other statue, regulation, requirement, or ordinance
respecting the protection or conservation of fish and wildlife resources. Those
statutes include, but are not limited to, the California Environmental Quality
Act, the California Endangered Species Act, or the Federal Endangered Species
Act.
DEPARTMENT OF FISH AND GAME
The
Resources Agency of California
By:
________________________________ Date__________________
XXXXXXXXX (530) 123-4567
Fish & Game Warden
Region 2
By:
________________________________ Date
_________________
XXXXXXXXXXXX,
Public Works Director,
County of Glenn
XXXXXXXXXXXXX, County Counsel
County of Glenn, California
Exhibit 1
Projects List
Watershed Unit Tributary
to:
1.
Stony Creek Sacramento River
2.
Elk Creek Stony Creek
3.
Grindstone Creek Stony Creek
4.
Hambright Creek Stony Creek
5.
Willow Creek Colusa Drainage Basin
6.
Walker Creek Willow Creek
7.
Wilson Creek Willow Creek
8.
Hunter Creek Colusa Drainage Basin
9.
Logan Creek Colusa Drainage
Basin