IV. REGULATORY REQUIREMENTS
A. Purpose and Scope
Any given development project is subject to requirements or conditions based on broad authorities granted to various jurisdictions to provide protection from or mitigation of effects of the development. The purpose of this chapter is to identify and describe the basic authorities and their requirements in general terms.
B. Basic Drainage Law Requirements
Drainage law is essentially case law. As such, it is complex, but the courts have established some general principles which apply in general to development projects:
- The downstream property owner is obligated to accept and make provision for those waters which are the natural flow from the land above.
- The upstream property owner shall not concentrate water where it was not concentrated before without making proper provision for its disposal without damage to the downstream property owner.
- The upstream property owner may reasonably increase drainage runoff by paving or construction of other impervious surfaces, including buildings without liability. The upstream property owner may not further increase drainage runoff by diversion of water which previously drained to another area. Reasonableness is often based on prevailing standards of practice in the community or region.
- No property owner shall block, or permit to be blocked, any drainage channel, ditch, or pipe. No property owner shall divert drainage water without properly providing for its disposal.
These concepts are reflected elsewhere in this manual in policy statements, criteria and standards.
C. General Plans
The general plan is used by local government to define goals and policies regarding land use and development. The general plan is empowered, and its scope prescribed, by state law. It is the basis of many derivative plans and ordinances which are intended to implement its goals and policies. The general plan also grants discretionary powers to local planning commissions to impose specific conditions on projects to achieve broad goals and objectives.
D. Subdivision Map Act
Specific drainage improvements or drainage fees and assessments may be imposed by the local jurisdiction largely based on powers granted in the Subdivision Map Act. The Subdivision Map Act is contained in Government Code Section 664l0. The sections of this Act specifically which provide authority for the imposition of conditions related to drainage requirements include Government Code Sections: 664ll; 664l8; 664l9; 6642l; 66457; and 66483. The Subdivision Map Act gives local agencies the authority to: provide drainage facilities necessary for the general use of lot owners, the subdivision and the local neighborhood; to provide for proper grading and erosion control; to require dedication or irrevocable offers of dedication of real property within the subdivision for drainage easements; and to provide for the imposition and collection of fees needed to defer actual or estimated costs of constructing drainage facilities for the removal of surface and storm waters from local or neighborhood drainage areas. The exact nature of these improvements may be specified in local ordinances which identify specific improvements such as storm sewers, subdrain systems, detention basins, pumps, and catch basins, or ordinances general in nature which simply require improvements for facilities to carry storm runoff. These requirements are identified in master drainage plans. Although local governments have broad authority to require drainage easements, that authority is limited by Sections 664ll and 6642l of the Subdivision Map Act which state that local ordinances be consistent with, and not in conflict with, the Subdivision Map Act.
E. California Environmental Quality Act (CEQA)
CEQA requires that local agencies disclose and consider the environmental implications of their actions and requires avoidance of environmental impacts where feasible. Mitigation requirements may be identified in a regional plan and fees or assessments imposed on specific developments within the plan area, or any specific development project may be required to assess and mitigate to avoid environmental impacts. Provisions for regional mitigation of effects may be included in master drainage plans.
F. Porter-Cologne Water Quality Control Act
California Water Code Section l3000, et seq., also known as the Porter- Cologne Water Quality Control Act, gives the State of California, through the State Water Resources Control Board and the various Regional Water Quality Control Boards, the primary responsibility for control of state water quality. The primary enforcement mechanisms are Water Code Sections 13260, l330l, l3304, and l3266.
Section l3260 states that any person proposing to or discharging waste within any region that could affect state water quality, other than into a community sewer system, must file a report with the Board that contains such information as required by the Board. Proposed changes or changes in the character of any previously approved discharge requires an additional report be filed. Criminal penalties can be attached to violations of the Act.
Section l3266 states that each citizen/or county must notify the Board if a subdivision map is filed, or if a building permit is filed which may involve the discharge of waste other than from dwellings involving five families or less, or discharge other than to a community sewer system.
Finally, Section l330l gives Boards the authority to issue Cease and Desist Orders for violations of the Act, while Section l3304 provides the State Attorney General with the power to petition the Superior court for prohibitory or mandatory injunctions to stop violations of the Act.
Further, the Subdivision Map Act, Government Code Section 66747.6, provides that the governing body of a local agency shall determine whether discharge of waste from a proposed subdivision into an existing community sewer system would cause a violation of existing Board requirements. If the proposed waste discharge would cause or add to such violations, the proposed subdivision can be denied.
G. California Fish and Game Code:
California Fish and Game Code (Section l603) states that it is unlawful to substantially divert or obstruct the material flow, or substantially change the bed, channel, or bank of any river, stream, or lake, or use material from the streambeds without first notifying the Department of Fish and Game. Title XIV, California Administrative Code 720 was adopted by the Department for the purpose of implementing Section l603, and designates all rivers, lakes, streams, and streambeds for such purposes (including those with intermittent flows of water). Department guidelines define a river or stream as "a natural watercourse as designated by a solid line or dash and three dots symbol shown in blue on the largest scale United States Geological Survey Topographic Map most recently published" (Department of Fish and Game, Departmental Guidelines Memo No. FG l06l). However, the Department has taken the position that their authority and responsibility extends to all watercourses that could directly or indirectly affect resource values. An agreement from Department of Fish and Game is required for all activities which alter the streambed or flow. Constraints for protecting fish and wildlife maybe issued as conditions of the agreement.
H. Section 404 of the National Clean Water Act
Section 404 of the National Clean Water Act prohibits the placement or discharge of fill or dredged material into "waters of the United States" without a permit from the Corps of Engineers. "Waters of the United States" includes streams which "...are periodically or permanently inundated by surface or ground water and support vegetation adapted for life in saturated soil." Practically, this means many of the natural drainages in Placer County. The Corps of Engineers coordinates the concerns of various reviewing agencies and the public. Permits are circulated among these parties and any conditions to the permit are based on their legitimate concerns. Procedures and requirements are further explained in Permit Program, A Guide for Applicants, U.S. Army Corps of Engineers, Pamp. No. EP ll45-2-l, Nov. l, l977.
I. National Flood Insurance Program
The National Flood Insurance Program was developed in l968 to: provide federally subsidized insurance policies to the owners of flood plain properties; and provide incentives to local government to plan and regulate land use and building design in flood hazard areas. This program is set forth in the National Flood Insurance Act (42 USC Sections 440l-4l28). The Federal Emergency Management Agency (FEMA) has overall, and very broad, responsibility for administering the National Flood Insurance Program, but local communities participating in this program review specific development proposals to assure that structures which may be in a 100-year floodplain are protected from flood damages and that any changes in the floodplain do not cause unacceptable increases in the elevation of the 100-year water surface. Property developers may be held liable for designing and/or constructing drainage projects which aggravate existing insurance risks.
APPENDIX IV-A LEGAL DEFINITIONS
Surface Water: Water resulting from rain or snow which is diffused over the surface of land, or is contained in depressions, or water which rises to the surface in spring, is known as "surface water" (Keys v. Romley (l966), 64 Cal.2d 396 at p. 400).
Watercourse: A stream containing a definite bed, banks and a channel, which flows into some other river, stream, lake or body of water. However, none of these characteristics is absolute. A watercourse can also exist if none of these characteristics is present. The existence of a watercourse is often a fact to be determined by a jury or court (Costello v. Bowen (l947) 80 Cal.App.2d 62l at p. 627).
Floodwater: The extraordinary overflow of rivers and streams is known as "floodwater" (Keys v. Romley, (l966), 64 Cal.2d 396 at p. 400).
Lake: A reasonably permanent body of water of natural origin which is substantially at rest in a depression of natural origin in the surface of the earth is known as a "lake" (Restatement, Torts Section 842).
Pond: A pond has the same characteristics as lake except that a pond is generally small and usually contains considerable aquatic growth. (Restatement, Torts Section 842, comment).
Ground water: Underground streams, percolating waters and aquifers are the three main water sources known as "groundwater."
Aquifer: A water bearing stratum, or bed of permeable rock, sand or gravel, capable of yielding considerable quantities of water to wells or springs is generally known as an "aquifer."
Percolating Water: Water which percolates through rock or soil to some other body of water is generally known as "percolating water."
Underground Stream: Water that passes through or under the earth's surface in a definite channel is generally known as an "underground stream."