Riparian Regulations

Random, Redundant, or Rational?^[1]

Sari Sommarstorm^[2]

Abstract.—New approaches to riparian regulation will be necessary in the 1980s if past legal gains are to be maintained and new ones achieved. An evaluation of the present local, state, and federal regulatory framework for riparian system protection is presented to identify under- and overlapping authorities and possible areas of improvement.

Introduction

Regulation is like medication. Too little a dose may not cure the problem and too much may kill off the patient. In the 1960s and 70s, we were in an era of concern about too little environmental regulation; now in the 80s, rightly or wrongly, we are in an era of concern about over-regulation. Although California's riparian systems are still vulnerable to destruction, the use of regulation to protect them is being seriously challenged. To respond to this challenge, those of us concerned about the health of our riparian systems should seek to find the proper regulatory dosage before we lose the patient.

The purposes of this paper are several:

1. to identify the primary local, state, and federal regulatory agencies and laws responsible for conserving riparian systems on private lands;

2. to analyze these regulatory responsibilities from the perspective of the regulators as well as those regulated;

3. to propose some improvements in the current regulatory approach; and

4. to stimulate discussion regarding our traditional assumptions about environmental regulation as a conservation tool.

The riparian systems to be emphasized in this paper are mainly the riparian resources along inland rivers and streams rather than aquatic wetlands or lakes. This paper also takes a statewide perspective rather than that of a single geographical area. Of course some bias cannot be helped. I am partly approaching this subject from the perspective of a resource planner in a rural county which is innately resistant to any new regulations. The county is also extremely reluctant to accept or enforce mandatory directives from the state or federal level. The burden of proof is on me to justify any new local regulations to protect riparian vegetation when the county's decisionmakers feel there are too many regulations already.

The basic questions we need to ask ourselves and to honestly try to answer are the following.

1. Can we justify any new regulations for riparian zones?

2. Are riparian systems already overregulated?

3. Can we streamline the present regulatory process without stripping streams of their riparian vegetation?

A Reconnaissance of Riparian Regulations

A review of environmental laws reveals that the term "riparian" does not have to be explicitly stated for a law to include the riparian zone. Implicit regulations of activities in the riparian zone appear in the permit process for projects in a variety of ways. The scope of such permits involves: a) project location; b) project activities; and c) resources affected by the project (California Office of Planning and Research 1980). Table 1 illustrates the wide range of concerns in these three categories which can pertain to the riparian zone.

Identifying the range of concerns is the first step toward analyzing the specifics of regulation. Each item listed in table 1 has a unique set of regulations, or lack thereof, associated with it. Some of these will be explored later on in this paper.

[1] Paper presented at the California Riparian Systems Conference. [University of California, Davis, September 17–19, 1981].

[2] Sari Sommarstrom, Ph.D., is Natural Resource Policy, Planning and Management Consultant, Covelo, Calif.

Before describing the pertinent regulatory agencies, it is important to note that they all reflect the scope of the laws establishing their existence. Most began as governmental entities designed to carry out a single purpose: water quality control; water rights control; game protection; timber harvest regulation. Because of new public concerns, some have evolved to add other purposes: endangered species protection; soil erosion control; nongame wildlife habitat concern. In addition, some agencies, particularly state and local, have had to reflect hierarchical directives for implementation from the federal level. New environmental laws are not necessarily reviewed, prior to passage, for their overlap or conflict with existing laws or agency responsibilities. All of the above factors add up to creating the regulatory bureaucracy we have today, for better or worse.

An exhaustive survey of every local, state, and federal riparian regulation in California is beyond the scope of this paper. Other papers (e.g., Jones 1983; Kramer 1983) provide a more indepth examination of the present legal framework. Focusing instead on the primary regulations and agencies allows an examination of the basic "who, what, where, why questions."

Local Regulations

Local government can use its police powers for protecting public health, safety, and welfare in establishing regulations. Several mechanisms are available which can be applied to regulating uses in streamside areas. These ordinances are briefly described below, from most to least common and in a general sense, rather than as specifically used in one locality. In most cases, the planning agency is the one responsible for administering the applicable ordinances, but sometimes public works, building, flood control, or water departments are also involved.

Zoning Ordinance

This measure is the most common form of local land-use regulation. It establishes the types of uses permitted on all private land within the city's or county's borders and can thereby influence riparian land use. Each zoning district establishes a list of permitted uses (e.g., single family residential; agricultural); prohibited acts (e.g., mineral extraction); and conditional-use procedures. Special requirements may be added, within reason, to use and conditional-use permits to ensure conformity to general plan policies. Floodplain regulations are assumed in this analysis to be administered as a floodplain overlay zone.

Grading Ordinance

Most local governments have adopted at least the minimal excavation and grading regulations established by Chapter 70 of the Uniform Building Code (International Conference of Building Officials 1979), which is mainly concerned with safeguarding private property. Others have either amended the zoning or subdivision ordinance or established a separate ordinance to minimize erosion or sedimentation from a project (Thurow etal . 1975). Grading controls can be used to minimize or prevent disturbance of riparian vegetation and "drainage channels."

Mining Ordinance

In addition to zoning controls on mining operations, counties were required by the California Surface Mining and Reclamation Act of 1975 (SMARA)^[3] to adopt ordinances which require the reclamation of mining lands. Counties may either adopt the state model ordinance or a stricter one. Gravel extraction is the most common mining operation with the potential to affect riparian resources.

Riparian Ordinance

Also referred to as a watercourse or stream environment protection ordinance, this site-specific regulation is the least commonly used. It may be typified for scope and authorities by the "Model Riparian Ordinance" developed by the California Department of Fish and Game (1980). While specifically designed to protect riparian vegetation, the model ordinance also encompasses riparian lands not fringed by plant species.

[3] Section 2710-1793 Public Resources Code.

State Regulations

California Permit Handbook

The California Permit Handbook (California Office of Planning and Research 1980) provides a concise description of the "who, what, where, how" of the various state regulatory requirements for development projects. Based on this source, only four state agencies may require permits for projects affecting riparian resources. Two of these agencies, the Coastal Commission and the Reclamation Board, are eliminated from the following discussion because their jurisdictions are not statewide in scope.

Department of Fish and Game

Department of Fish and Game (DFG) Code Sections 1601–1603 require a Stream Alteration Agreement for any work undertaken below the mean highwater mark of a body of water containing fish or wildlife resources or where the project will use material from the streambed. While technically not a permit, the agreement includes specific conditions which must be met by the applicant to mitigate potential problems.

Department of Forestry

Timber harvesting of commercial species requires a Timber Harvest Plan to be approved by the Department of Forestry (DF). The plan must conform to the rules and regulations of the Board of Forestry, the Forest District, and the Z'berg-Nejedly Forest Practice Act of 1973 (as amended).^[4] A small number of riparian forest trees, mostly in the north coast, are included as "commercial species": red alder, white alder, coast redwood, pepperwood, and others. A "Watercourse and Lake Protection Zone" is now established in the rules which requires a certain minimum width for special protection measures. No approval is required for timber operations on less than 1.2 ha. (3 ac.). Conversion of private commercial timberland to a use other than growing commercial timber requires a Timberland Conversion Permit.

State Water Resources Control Board—Division of Water Rights

According to the California Water Code, a Permit to Appropriate Water must be obtained from the State Water Resources Control Board (SWRCB) by any person or public agency who proposes to divert water from a surface stream for use on non-riparian land. Conditions are attached to such permits to assure that permittees prevent waste, practice water conservation, and put the water to the "fullest beneficial use". Water diversion under a riparian claim only requires a Statement of Water Diversion and Use, which is for informational purposes only. The SWRCB jurisdiction for issuing permits and licenses for underground water is limited to "subterranean streams flowing through known and definite water channels" which will be applied to nonoverlying land. In general, most groundwater use does not require such a permit.

Regional Water Quality Control Boards

The nine regional water quality control boards (RWQCB) are delegated permit-issuing authority by the SWRCB for waste discharges into any surface waters or groundwater. Both point (e.g. from a pipe or confined channel) and nonpoint (e.g. erosion from soil disturbance) sources of water pollution may require a permit or waste discharge requirements, based upon the water quality standards adopted in the regional board's Basin Plan. Logging, construction, or associated activities in the riparian zone would be affected. Legal authority for the regional boards is derived from the Porter-Cologne Water Quality Control Act^[5] and other related Water Code sections, and the Federal Clean Water Acts.^[6]

California Environmental Quality Act

Without belaboring the specifics, this discussion of regulation must at least note that agencies other than the above may have to review a project under the California Environmental Quality Act (CEQA)^[7] referral process. These non-permit issuing agencies can make their own comments concerning a project's impacts. An example of a CEQA Referral List is provided in Table 2, a case study of gravel extraction permits. For the majority of private projects, the lead agency is usually a local rather than a state agency. The lead agency must determine whether the project will have a significant effect on the environment. This "significant effect" includes riparian concerns, such as the substantial reduction of habitat for fish, wildlife or plants. Exempted from CEQA requirements are "minor alterations to land."

Federal Regulations

Most federal laws which pertain directly or indirectly to riparian systems are administered at the state or local level. Only one federal regulatory agency is potentially involved with private projects.

US Army Corps of Engineers

Under the authority of Section 404 of the Clean Water Act (as amended), the US Army Corps of Engineers (CE) may require a permit for projects involving the location of a structure in or on, or the excavation or discharge of dredge or fill material into "navigable waters". This

[4] Section 4511-4628 Public Resources Code.

[5] Section 13000-13998 Water Code.

[6] 86 Stat. 816; 91 Stat. 1566.

[7] Section 21000-21178 Public Resources Code.

jurisdiction now includes wetlands, rivers, and intermittent streams below the ordinary highwater mark. Although the riparian zone appears to be excluded, certain activities affecting riparian resources are covered by this permit (e.g. riprap, levees). [See Kramer (1981) and F. Smith (1981) for a thorough discussion of the Section 404 process and scope.]

Reductionistic Reflections

Regulated Activities

Comparing the primary regulations just described with a representative sample of project activities from table 1 can lead to some useful insights. Such a comparison is facilitated by table 3. A slightly different description is offered for the local ordinances. Since these local regulations are not uniform throughout the state, it seems necessary to distinguish between an existing situation and a potential one. For each ordinance type, the left-hand symbol represents the present Mendocino County regulatory situation, which may be typical of rural counties. The symbol to the right indicates the potential authority which such a local ordinance might assume within its scope. This potential authority is based on "model" ordinances where possible (Thurow etal . 1975; California Department of Fish and Game 1980).

As one can see from table 3, the number of permits potentially required range from zero or

one for grazing to four or five for streambed alteration. Both under- and overlapping authorities become apparent: groundwater use, water diversion based on riparian rights, and vegetation removal (non-timber) are essentially unregulated; timber harvesting and gravel extraction are regulated by two or more agencies. The implications of this observation depend upon one's point of view.

The regulated individual, or the applicant who wants to carry out a project in the riparian zone, will be concerned that, for example, he may need as many as five permits for a gravel extraction operation. He may have to deal with the time-consuming permit process of each federal, state, and local agency. The separate permit requirements may also be contradictory, for example, one agency demanding cross-sections every 50 ft. for a gravel operation, another requesting them every 75 ft., and a third stating the stream impacts are not important enough for a cross-section requirement. Such confusion, which is not unusual, may cause the applicant to take out his frustrations in the political arena, which can lead to poor publicity and possible weakening or loss of the law (Sommarstrom 1981).

Regulators should observe from this table which other agencies have overlapping authorities. The need for good coordination between regulators becomes obvious. Without consistency between the agencies' recommendations, the applicant may exploit the communication gap and play one agency against the other. The different expertise and enforcement powers of the various agencies need to work together and complement one another where possible. Aside from the overlap, certain agencies have the sole responsibility for regulating an activity, such as the appropriation of stream water by the SWRCB or the control of vegetation removal by a local agency through a riparian ordinance. Protection of the resource in these cases is dependent upon the ability of that particular agency to carry out its duties.

Regulatory Objectives

Another way to analyze regulations is to contrast the legal concerns or objectives of each of the agencies, as shown in table 4. CEQA has been added in order to compare its mandates.

Table 4 reveals that land-use regulation is solely a responsibility of local government while water quality is addressed at all three levels. These objectives only come into play, it should be noted, if a permit is required from the agency. The CE, for instance, is only concerned about protecting endangered species if a project occurs within its jurisdiction.

Several interpretations can be made of this table. Under- and overlapping objectives become obvious, as with table 3, and the problems and needs are similar to the preceding discussion. In addition, CEQA requires the lead agency to address each of the listed concerns through the environmental review process.

The column under each agency/regulation presents another set of information. The RWQCB, for instance, is primarily a single-purpose agency for water quality, although it is required to take other issues into consideration. Following much controversy, DF is now required to protect both the productivity of timberland and water quality through its timber harvest plan review.

Riparian regulatory programs are criticized by Kusler (1978) for having limited objectives which handicap their effectiveness. For example, floodplain regulations are directed to minimize flood hazards but not to protect wildlife, he states. The local zoning ordinance column in table 4 illustrates this criticism for the present situation; it also shows that zoning ordinance has the potential to address broader concerns and objectives.

The bottom line of this entire discussion on regulations is, of course, enforcement. Without adequate enforcement, one might as well place zeros in all of the columns in tables 3 and 4.

"Adequate" enforcement means the proper exercise of executive or police power when permit conditions are violated, as well as an effective "disincentive" penalty for violations.

Repackaging the Rules

Repackage is defined in the dictionary as to put into a more efficient or attractive form. It certainly can be argued from the above analysis that the current approach toward riparian regulation could be made more efficient if the rules are to be productive of desired effects. With the array of single-purpose agencies and overlapping laws described, the present system is vulnerable to criticism despite the legal gaps also present. We must try to clean up our regulatory act while, at the same time, striving to improve riparian protection.

Reforming the Overlap

The public's perception of being "overregulated" is directly related to the number of agencies involved, the number of permits required, the time it takes for approval, the expense of the permits, and the reasonableness and number of conditions on the permits. These concerns can be at least partly remedied in a variety of ways.

Streamlining the Permit Process

Streamlining is now a state directive under AB 884, which requires standardized procedures and strict time limits for state permits. Accomplishing this mandate will take some time and quite a bit of creativity. Several handbooks which describe successful techniques, such as a common application form and a one-stop permit center, are available on the subject (Vranicar etal . 1980; Bosselman etal . 1976).

Inter-agency Communication

Permit administrators need to meet and confer on mutual concerns more often. When the "bureaucrats" remain faceless to one another, the rapport necessary to make the system flow smoothly does not usually develop. Obtaining organizational charts and permit-processing flow charts of each agency can improve one's understanding of how each agency functions (theoretically, at least). Informal or formal inter-agency agreements may also facilitate permit review responsibilities, by coordinating field inspections, consolidating data-collection efforts, and strengthening enforcement, for example.

Intra-agency Communication

Any agency employee knows how frustratingly difficult it often is to adequately communicate within one's organization. Large, decentralized agencies, such as DFG, must especially learn to bridge the communication gap, or else biologists, enforcement officers, engineers, planners, and environmental specialists may end up working at cross-purposes. Despite problems inherent to the structure of governmental institutions, there are means of overcoming internal inertia (Downs 1967; Henning 1974).

Re-evaluating the Rules

Cleaning up the language of regulation goes a long way toward making friends, or at least fewer enemies. The CE learned this lesson in its "Section 404" program, which started out using unintelligible jargon but later switched to simpler terms and diagrams. One cannot expect people to comply with all the rules if they cannot understand them.

Rectifying the Underlap

The lack of authority or responsibility to protect certain riparian resources remains a problem. Concerned citizens may look at tables 3 and 4 and conclude that more regulations are definitely needed, especially to prevent the removal of riparian vegetation. Several options are recommended.

Expand the Scope of Existing Regulations

Instead of creating a new agency or commission, it would seem more prudent to expand the authority of the present regulators to cover the jurisdictional gaps. This could be accomplished by either adding new objectives or extending the jurisdiction of an agency. For instance, a state mandate to protect riparian vegetation could be assigned to the DF. While its current scope is limited to commercial tree species or the stream protection zone associated with a timber harvest plan, DF authority could be expanded to control all vegetation removal in the riparian zone. At the local level, existing zoning and grading ordinances could be amended as shown in tables 3 and 4.

Create Incentives

Like legislating morality, the establishment of regulations which are not supportable or realistic is doomed to failure. The requirement to fence streams from grazing livestock, as proposed in the DFG model riparian ordinance, is one such example. Even if a rancher is sympathetic, he may be unable to afford the cost of the fencing, if he is typical of most land-rich but cashpoor ranchers in rural California. Instead, concerned citizens and government should encourage the use of cost-share programs (e.g., California Forest Improvement Program, Agricultural Conservation Program) to help get the job done. We must remember that the purpose of environmental programs is not to penalize people but to protect resources. When regulations will not work, incentives may be the answer.

Use-Performance Standards

Environmental performance standards attempt "to preserve or maintain the natural performance

of the land already there", as opposed to controlling man-made features (Thurow etal . 1975). They are an improvement over traditional zoning by providing more equity in land controls and reducing the administrative problems of ordinances. As the result, impacts on the riparian system from both on- and offsite sources may be more successfully mitigated.

Conclusions

Yes, riparian regulations are random. They have evolved from many different sources for a variety of purposes and have followed no master plan. Not all of the resources associated with the riparian zone are protected by governmental controls. Riparian regulations are also redundant, however. They overlap in both permit authorities and regulatory objectives, with some project activities requiring as many as five permits. Whether riparian regulations are rational or not depends upon one's perspective and expectations. Certainly improvements can be made in the present regulatory system to assist both the regulators and those regulated.

This analysis is not intended to be a comprehensive examination of riparian regulations. It is intended to stimulate a greater understanding of how we can make the regulatory process work to meet its real purpose—not to kill the patient but to keep it healthy.

Literature Cited

Bosselman, Fred, D. Feurer, and C. Siemon. 1976. The permit explosion: coordination of the proliferation. 86 p. Urban Land Institute, Washington, D.C.

California Department of Fish and Game. 1980. Model riparian ordinance. 6 p. Region 3, Yountville. Unpublished.

California Office of Planning and Research. 1980. California permit handbook. 270 p. California Office of Planning and Research, Sacramento.

Downs, Anthony. 1967. Inside bureaucracy. 292 p. Little, Brown, and Company, Boston, Mass.

Henning, Daniel H. 1974. The environmental administative process. p. 36–52. In : Environmental policy and administration. 205 p. American Elsevier Company, New York, N.Y.

International Conference of Building Officials. 1979. Uniform Building Code. 734 p. I.C.B.O., Whittier, Calif.

Jones, Bruce. 1983. A state mandate for riparian wetland system preservation. In : R.E. Warner and K.M. Hendrix (ed.). California Riparian Systems. [University of California, Davis, September 17–19, 1981]. University of California Press, Berkeley.

Kramer, John. 1981. Is there a national interest in wetlands: the Section 404 experience. In : R.E. Warner and K.M. Hendrix (ed.). California Riparian Systems. [University of California, Davis, September 17–19, 1981]. University of California Press, Berkeley.

Kusler, Jon A. 1978. Regulating critical riparian lands: a challenge in intergovernmental cooperation. p. 332–335. In : R.R. Johnson and J.F. McCormick (ed.). Strategies for the protection and management of floodplain wetlands and other riparian ecosystems. [Callaway Gardens, Georgia, December 11–13, 1978]. USDA Forest Service GTR-WO-12. Washington, D.C. 410 p.

Sommarstrom, Sari. In press. Local-state coordination for gravel management in spawning streams. In : Proceedings of the symposium on habitat disturbance and recovery. [San Luis Obispo, Calif., January 29, 1981.] California Trout, San Francisco, Calif.

Smith, Felix. 1981. The Clean Water Acts and the principles of the public trust doctrine: a discussion. In : R.E. Warner and K.M. Hendrix (ed.). California Riparian Systems. [University of California, Davis, September 17–19, 1981.] University of California Press, Berkeley.

Thurow, Charles, W. Toner, and D. Erley. 1975. Streams and creeks. p. 7–20. In : Performance controls for sensitive lands: a practical guide for local administrators. Planning Advisory Service Report Nos. 307, 308. 156 p. American Society of Planning Officials, Chicago, Ill.

Vranicar, John, W. Sanders, and D. Mosena. 1980. Streamlining land use regulations: a guidebook for local governments. 74 p. US Department of Housing and Urban Development, Washington, D.C.