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Lake and Streambed Alteration Agreement Basics

Obtaining a license to cultivate cannabis in California is no easy task. There are many state and local agencies with whom one will need to coordinate to secure the proper permits and license for commercial cannabis cultivation (e.g., the California Department of Food and Agriculture (“CDFA”), the California Department of Fish and Wildlife (“CDFW”), the California Secretary of State, your local State Water Resources Control Board, and your local municipal or county agencies, etc.). One of the more challenging pre-requisites to obtaining an Annual Cultivation License from the CDFA is the Lake and Streambed Alteration Agreement (“LSA”), which is issued by the CDFW. The LSA exists under the auspices of California Fish and Game Code Section 1602, which generally prohibits diverting or obstructing the flow of or changing or using the material from a river, stream, or lake, unless the CDFW is properly notified pursuant to Section 1602. Obtaining an LSA can be challenging, but is a manageable task if one is prepared and informed going into the process. Here are some basics that will help get you started.

1. Identify Which Agreement You Need

There are three types of LSAs: the Self-Certification, the General Agreement, and the Standard agreement. The Self-Certification is for those applicants whose projects do not and will not substantially modify any river, stream, or lake. If you are using public water or a permitted, private well, this may be the LSA for you. The General Agreement applies only to those projects on which there will be construction, reconstruction, maintenance, or repair of stream crossing or water diversions on non-finfish rivers, streams, and lakes. In practice, because of the fairly narrow restrictions associated with the General Agreement, it is fairly uncommon. Finally, the Standard Agreement applies to projects that don’t otherwise qualify for a Self-Certification or a General Agreement.

Fortunately, if you are applying for an LSA in connection with a cannabis cultivation operation, you may apply online through the Environmental Permit Information Management System (“EPIMS”). Non-cannabis LSA Applicants must still submit paper applications. On EPIMS, there is a survey that, once completed, will advise whether you qualify for either the Self-Certification or the General Agreement, or whether you must apply for the Standard Agreement. If you qualify for Self-Certification, obtaining your LSA will be a much easier process. If, however, you are required to secure a Standard Agreement, the CDFW may require significantly more information from you depending on the projects and property at issue.

2. Create a Property Diagram and Site Plan

Regardless of which type of LSA you are applying for, you will need to submit a map of the subject-property with your application. In addition, you will need maps and/or site plans for other permit and license applications. For example, as part of the Cultivation Plan, which is a requirement for obtaining an Annual License from the CDFA, an applicant must include detailed diagrams of property. Therefore, it is valuable to create a diagram and site plan that can be used for all applications early in the process (indeed, many jurisdictions will likewise require a diagram and site plan to secure a local permit). For the LSA, your map must include a diagram showing at least the following:

  • A map showing the project in relation to the nearest town or city and with driving instructions from the nearest major road;

  • Site specific construction details;

  • Dimensions of structures and the extent of activities in bed

  • A birds-eye overview of the area showing structures, activities, significant features, stockpile areas, and areas of temporary disturbance; and

  • The location of access points for equipment and machinery.

3. Submit the Correct Fee

Unfortunately, “flat fees” do not apply to any form of LSA. Rather, the fee depends entirely on the cost of the “Project” as defined by the CDFW. The fee structure can be found on CDFW website. A “Project” can be a single activity or multiple activities if they are “interrelated and could or will affect similar fish and wildlife resources.” For example, a limited removal of riparian vegetation at a single location on a river, stream, or lake bed resulting in a substantial change to such bank would be a single Project. But building a bridge, which would likely require multiple activities that might otherwise constitute a single project in their own right (e.g., the removal of riparian vegetation, the installation of abutments in or near the stream, and the temporary de-watering of the stream, etc.), is considered a single project for the purposes of calculating the LSA fee. In other words, multiple activities can be consolidated under the umbrella of a broader improvement. Note, however, that applicants cannot construe just anything as “interrelated” with the hope of paying a minimal LSA fee. For example, if an applicant is building two bridges and a culvert across a stream at three different locations, the applicant could not call the three activities a single project, even if they are arguably interrelated in that they are connected by a road or provide access to a specific area. They would be three separate projects.

4. Conclusion

The requirements for any given LSA are contingent on the specifics of a given site and as such, there is no “one size fits all” solution. Additional requirements could include obtaining a biological, hydrological, or protected species survey. As such, it is highly advisable to retain trained professionals familiar with LSAs in the cannabis cultivation context; those who can walk you through each step of the process, minimize friction with the CDFW, and tackle the various obstacles that will inevitably arise along the way. The lawyers at HK Cannabis Law are capable, experienced advisors who are ready and willing to guide you through the LSA application process, as well as any other cannabis licensing and permitting needs.

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