HomeMy WebLinkAboutF&G Commission - Drought notice 1 Commissioners STATE OF CALIFORNIA Sonke Mastrup,Executive Director
Jack Baylis,President Edmund G.Brown Jr.,Governor 141:16 Ninth Street, Room 1320
Los Angeles Sacramento,CA 95814
Jim Kellogg,Vice President (916)653-4899
Discovery Bay Fish and Game Commission www.fgc.ca.gov
Jacque Hostler-Carmesin,Member
McKinleyAlle BUTTE
Eric Sklar,Member
Saint Helena Trio
Anthony C.Williams,Member
Huntington Beach DEC 14 2015
Wildlife Heritage and Conservation
Since 1870
December 11, 2015
NOTICE OF PROPOSAL FOR A 90 DAY EXTENSION OF EMERGENCY ACTION
Measures for Fisheries at Risk Due to Drought Conditions
Reference OAL File #2015-0626-01 E
Pursuant to the requirements of Government Code subsections 1146.1(a)(2) and
113,46.1(h), the Fish and Game Commission (Commission) is providing notice of
proposed extension of existing emergency regulations, establishing measures for
fisheries at risk due to drought conditions.
The objective of this re-adoption is to protect fisheries under critical conditions
stemming from various conditions by establishing a set of triggers to guide fishing
closures and reopening actions. Closures occur when specific triggering events occur,
including water temperatures exceeding 70OF for over eight hours a day for three
consecutive days. Other triggers include oxygen levels, water level, and breeding
population. The Commission authorized staff to publish notice of intent to permanently
implement Section 8.01, Title 14, CCR, at its December 10, 2015, meeting in San
Diego, C . Consideration for adoption of the regular rulemaking is scheduled for the
April 14, 2016, Commission meeting in Santa Rosa.
SUBMISSION OF COMMENTS
Government Code Section 11346.1(a)(2) requires that, at least five working days prior
to submission of the proposed emergency action to the Office of Administrative Law
(OAL), the adopting agency provide a Notice of the Proposed Emergency Action to
every person who has filed a request for notice of regulatory action with the agency.
After submission of the proposed emergency to OAL, OAL shall allow interested
persons five calendar days to submit comments on the proposed emergency
regulations as set forth in Government Code Section 11349.6.
Any interested person may present statements, arguments or contentions, in writing,
submitted via U.S. mail, e-mail or fax, relevant to the proposed emergency regulatory
action. Written comments submitted via U.S. mail, e-mail or fax must be received at
OAL within five days after the Commission: submits the emergency regulations to OAL
for review.
Please reference submitted comments as regarding "Fisheries at Risk" addressed to:
Mailing Address: Reference Attorney California State
Office of Administrative Law Fish and Game Commission
300 Capitol Mall, Suite 1250 Attn: Jon Snellstrom
Sacramento, CA 95814 1416 Ninth Street, Rm. 1320
Sacramento, CA 95814
E-mail Address: staff oal.ca.gov fgcA)fgc.ca.gov
Fax No.: 916-323-6826
For the status of the Commission's submittal to OAL for review, and the end of the five-
day written submittal period, please consult OAL's website at http://www.oal.ca.gov.
under the heading "Emergency Regulations."
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CALIFORNIA FISH AND GAME COMMISSION
STATEMENT OF PROPOSED EMERGENCY REGULATORY ACTION
Emergency Action to
Add Section 8.01,
Title 14, California Code of Regulations
Re: Special Measures for Fisheries at Risk due to Drought Conditions
I. Statement of Facts Constituting the Need for Emergency Regulatory Action
California continues to suffer under severe drought conditions with record low snow packs in
2014 and 2015. In early 2014, Governor Edmund G. Brown Jr. proclaimed a State of
Emergency for California directing state officials to take all necessary actions to prepare for
the record level of drought conditions and also signed an Executive Order redoubling state
drought actions with additional measures to strengthen the state's response to drought. On
April 1, 2015, the Governor ordered state agencies to impose statewide mandatory water
restrictions that will save water, increase enforcement against water waste, streamline the
state's drought response, and invest in new drought resilient technologies for California.
The hydrological conditions in 2015 are expected to deteriorate from the record low 2014
conditions. The Department of Fish and Wildlife (Department) continues to evaluate and
manage the changing impacts of drought on threatened and endangered species and species
of special concern, and develop contingency plans for state Wildlife Areas and Ecological
Reserves to manage reduced water resources in the public interest.
Statewide water quality and quantity in many systems is likely to be inadequate to support
fisheries as the summer progresses, resulting in impeded passage of spawning fish, increased
vulnerability to mortality from predation and physiological stress, and increased angling
harvest and/or hooking mortality. Furthermore, survival of eggs and juvenile fish in these
systems over the coming months will be extremely low. The historically low water conditions
will concentrate coldwater fish populations into shrinking pools of cold water habitat making
them easy prey for illegal angling methods such as snagging, increased hooking mortality due
to legal catch and release, over-harvest, as well as other human-related disturbances within
their freshwater habitat. When coupled with drought-related environmental stressors, such as
high water temperature, low dissolved oxygen,and severely reduced suitable habitat, these
stressors can seriously affect reproductive success and survival rates.
Since 2014, the Department has worked with the Fish and Game Commission (Commission),
using the best available science, to determine whether restricting fishing in certain areas will
become necessary and prudent as drought conditions persist. The Department and the
Commission have determined that a temporary approach is needed to give the Department
effective tools to respond more rapidly to the deteriorating water quality and quantity
conditions in California's waters for 2015.
Regulatory Proposal
Environmental conditions resulting from the drought may require temporary restrictions on
fishing to protect fish populations and sustain future opportunity. These conditional changes
may affect each waterbody and fish population differently based on hydrological responses to
the drought. Increased angling mortality, harvest, and angling pressure are the key
components used to evaluate potential effects associated with degraded environmental
conditions and will need to be evaluated on a water by water basis and overtime as conditions
change.
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To ensure that fisheries are protected under critical conditions stemming from the drought, the
Department is proposing a set of triggers to guide fishing closure and reopening decisions.
The Department's decision to close or open a water will be based on the most current
information available, collected by professional staff trained in the associated fields. Criteria
for evaluating aquatic conditions are based on site-specific monitoring efforts with an
emphasis on listed fish species, species of special concern, and gamefish.
The following proposed criteria will be used to determine if an emergency fishing closure or
associated reopening is warranted:
Any water of the state not currently listed in Section 8.00 of these regulations may be
closed to fishing by the Department when the Director, or his or her designee, determines
one or more the following conditions have been met:
• Water temperatures in occupied habitat exceed 70° Fahrenheit for over eight hours a
day for three consecutive days.
• Dissolved oxygen levels in occupied habitat drop below 5 mg/L for any period of time
over three consecutive days.
• Fish passage is impeded or blocked for fish species that rely on migration as part of a
life history trait.
• Water levels for ponds, lakes and reservoirs drop below 10% of their capacity.
• Adult breeding population levels are estimated to be below 500 individuals.
All waters closed pursuant to this section will be reopened by the Department when the
Director, or his or her designee, determines all of the following conditions have been met:
• Water temperatures in occupied habitat do not exceed 70° Fahrenheit for over eight
hours a day for seven consecutive days.
• Dissolved oxygen levels in occupied habitat rise above 5 mg/L and are maintained at
that level for seven consecutive days.
• Fish passage is available and that no impediment exists to strand or concentrate adults
or juveniles during their migration.
• Water levels for ponds, lakes and reservoirs have recovered to greater than 10% of
their capacity.
• Adult breeding populations are estimated to be recovered to greater than 500
individuals.
Justification and associated data for closure and reopening decisions will be provided to the
Commission for any water that is subject to a fishing closure.
The Department and the Commission will work together to formulate a regular rulemaking
proposal that will refine the approach and as language based on experiences learned,
feedback from the public, and revisions to increase the efficacy of this emergency action.
II. Impact of Regulatory Action
The potential for significant statewide adverse economic impacts that might result from the
proposed regulatory action has been assessed, and the following determinations relative to
the required statutory categories have been made:
(a) Costs or Savings to State Agencies or Costs/Savings in Federal Funding to the State:
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None.
(b) Nondiscretionary Costs/Savings to Local Agencies:
None.
(c) Programs Mandated on Local Agencies or School Districts:
None.
(d) Costs Imposed on Any Local Agency or School District that is Required to be
Reimbursed Under Part 7 (commencing with Section 17500) of Division 4, Government
Code:
None.
(e) Effect on Housing Costs:
None.
III. Authority and Reference
The Fish and Game Commission proposes this emergency action pursuant to the authority
vested by sections 200, 202, 205, 240, and 315 of the Fish and Game Code and to implement,
interpret, or make specific sections 200, 202, 205, 240, and 315 of said Code.
IV. Section 240 Finding
Pursuant to Section 240 of the Fish and Game Code, the Commission finds that the adoption
of this regulation is necessary for the immediate conservation, preservation, or protection of
birds, mammals, reptiles, or fish, including, but not limited to, any nests or eggs thereof.
Informative Di est Plain English Overview
California continues to suffer under severe drought conditions with record low snow packs in 2014
and 2015. In early 2014, Governor Edmund G. Brown Jr. proclaimed a State of Emergency for
California directing state officials to take all necessary actions to prepare for the record level of
drought conditions and also signed an Executive Order redoubling state drought actions with
additional measures to strengthen the state's response to drought. On April 1, 2015, the Governor
ordered state agencies to impose statewide mandatory water restrictions that will save water,
increase enforcement against water waste, streamline the state's drought response, and invest in new
drought resilient technologies for California.
The hydrological conditions in 2015 are expected to deteriorate from the record low 2014 conditions.
The Department of Fish and Wildlife (Department) continues to evaluate and manage the changing
impacts of drought on threatened and endangered species and species of special concern, and
develop contingency plans for state Wildlife Areas and Ecological Reserves to manage reduced water
resources in the public interest.
Statewide water quality and quantity in many systems is likely to be inadequate to support fisheries as
the summer progresses, resulting in impeded passage of spawning fish, increased vulnerability to
mortality from predation and physiological stress, and increased angling harvest and/or hooking
mortality. Furthermore, survival of eggs and juvenile fish in these systems over the coming months
will be extremely low. The historically low water conditions will concentrate coldwater fish populations
into shrinking pools of cold water habitat making them easy prey for illegal angling methods such as
snagging, increased hooking mortality due to legal catch and release, over-harvest, as well as other
human-related disturbances within their freshwater habitat. When coupled with drought-related
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environmental stressors, such as high water temperature, poor water quality, and severely reduced
suitable habitat, these stressors can seriously affect reproductive success and survival rates.
Since 2014, the Department has worked with the Fish and Game Commission (Commission), using
the best available science, to determine whether restricting fishing in certain areas will become
necessary and prudent as drought conditions persist. The Department and the Commission have
determined that a temporary approach is needed to give the Department effective tools to respond
more rapidly to the deteriorating water quality and quantity conditions in California's rivers and
streams for 2015.
The following proposed criteria will be used to determine if an emergency fishing closure or
associated reopening is warranted:
Any water of the state not currently listed in Section 8.00 of these regulations may be closed to
fishing by the Department when the Director, or his or her designee, determines one or more of
the following conditions have been met:
• Water temperatures in occupied habitat exceed 70° Fahrenheit for over eight hours a
day for three consecutive days.
• Dissolved oxygen levels in occupied habitat drop below 5 mg/L for any period of time
over three consecutive days.
• Fish passage is impeded or blocked for fish species that rely on migration as part of a
life history trait.
• Water levels for ponds, lakes and reservoirs drop below 10% of their capacity.
* Adult breeding population levels are estimated to be below 500 individuals.
All waters closed pursuant to this section will be reopened by the Department when the Director,
or his or her designee, determines all of the following conditions have been met:
• Water temperatures in occupied habitat do not exceed 70° Fahrenheit for over eight
hours a day for seven consecutive days.
• Dissolved oxygen levels in occupied habitat rise above 5 mg/L and are maintained at
that level for seven consecutive days.
• Fish passage is available and that no impediment exists to strand or concentrate adults
or juveniles during their migration.
• Water levels for ponds, lakes and reservoirs have recovered to greater than 10% of
their capacity.
• Adult breeding populations are estimated to be recovered to greater than 500
individuals.
Justification and associated data for closure and reopening decisions will be provided to the
Commission for any water that is subject to a fishing closure.
The Department and the Commission will work together to formulate a regular rulemaking proposal
that will refine the approach and regulatory language based on experiences learned, feedback from
the public, and revisions to increase the efficacy of this emergency action.
Benefits: The proposed regulation will provide benefits to the environment through the conservation
and preservation of listed species, species of special concern, and gamefish populations.
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The proposed regulations are neither inconsistent nor incompatible with existing state regulations.
The Legislature has delegated authority to the Commission to promulgate sport fishing regulations
(sections 200, 202, 205, 240, and 315 Fish and Game Code).
At the June 11, 2015 meeting, the Commission approved the proposed emergency regulations
with the addition of the Department web site: https:I/www.wildlife.ca.govlRegulations as
another avenue to provide public notification of the Department actions under the temporary
emergency regulations.
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FISH AND GAME COMMISSION
STATEMENT OF EMERGENCY ACTION
FOR RE-ADOPTION OF EMERGENCY REGULATIONS
Emergency Action to Re-adopt Section 8.01, Title 14, CCR,,
Re: Fisheries at Risk
I. Request for Approval of Re-adoption of Emergency Regulations
In response to the continued extreme drought conditions, the Department of Fish
and Wildlife (Department) is requesting that the Fish and Game Commission
(Commission) extend the Department's authority set forth in Section 8.01, Title
14 of the California Code of Regulations, to temporarily close fisheries that are
experiencing rapidly degrading environmental conditions within waters of the
state. The Department requests that the Commission readopt the emergency
regulations that went into effect on July 2, 2015 for an additional period of 90
days while a Certificate of Compliance rulemaking is under consideration.
II. Emergency Regulation in Effect to Date
On January 17, 2014, Governor Edmund G. Brown Jr. proclaimed a State of
Emergency to exist in California due to severe drought conditions. As part of the
declaration, the Governor ordered the Department to work with the Commission,
using the best available science, to determine whether restricting fishing in
certain areas would become necessary and prudent as drought conditions .
persist.
Over the next several months, environmental conditions resulting from the
drought requires temporary restrictions on fishing on parts of four rivers to protect
fish populations and sustain future opportunity. The Department and the
Commission determined that another approach was needed to give the
Department more efficient tools to provide quicker response to deteriorating
water quality and quantity conditions in California's waters. As a result, on June
11, 2015, the Commission adopted emergency regulations which established a
process to temporarily close fisheries experiencing degraded environmental
conditions that may affect fish populations or their habitat within waters of the
state. The criteria set forth in these regulations are intended to ensure that
fisheries are protected under critical conditions stemming from the drought.
Since adoption of the emergency regulations the Department has implemented
one emergency fishing closure on state waters, of the lower Merced River, on
August 18, 2015. The Department used the criteria established in subsection (b)
of Section 8.01 to determine that a closure was warranted.
Following protocol, the Department held a public meeting in Merced prior to the
fishing closure. In addition, the Department provided the Commission the
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biological data used to justify the closure and made the data available to the
public on the Department's Emergency Fishing Closure webpage.
The Department and Commission are currently working together to formulate a
regular rulemaking proposal that will refine the approach and associated
language based on experience and feedback from the public, and with revisions
to increase the efficacy of this emergency action.
III. Statement of Emergency
The hydrological conditions in 2015 deteriorated from the record low 2014
conditions. The Department of Fish and Wildlife (Department) continues to
evaluate and manage the changing impacts of drought on threatened and
endangered species and species of special concern, and to develop contingency
plans for state Wildlife Areas and Ecological Reserves to manage reduced water
resources in the public interest.
Statewide water quality and quantity in many systems is likely to be inadequate
to support fisheries until significant and sustained rain and snow accumulate,
resulting in impeded passage of spawning fish, increased vulnerability to
mortality from predation and physiological stress, and increased angling harvest
and/or hooking mortality. Furthermore, survival of eggs and juvenile fish in these
systems over the coming months is expected to be extremely low. The
historically low water conditions will continue to concentrate Coldwater fish
populations into shrinking pools of cold water habitat making them easy prey for
illegal angling methods such as snagging, increased hooking mortality due to
legal catch and release, over-harvest, as well as other human-related
disturbances within their freshwater habitat. When coupled with drought-related
environmental stressors, such as high water temperature, low dissolved oxygen,
and severely reduced suitable habitat, these stressors can seriously affect
reproductive success and survival rates.
Since 2014, the Department has worked with the Commission using the best
available science, to determine whether restricting fishing in certain areas will
become necessary and prudent as drought conditions persist. The Department
and Commission have determined that a temporary approach is needed to give
the Department effective tools to respond more rapidly to deteriorating water
quality and quantity conditions in California's waters for 2015 and early 2016.
V. Re-adoption Criteria
1) Same or Substantially Equivalent
Pursuant to Government Code Section 11346.1(h), the text of a re-adopted
regulation must be the "same or substantially equivalent" to the text of the
original emergency regulation. The proposed language for the re-adopted
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regulatory amendment is the same as the language of the original emergency
regulation.
(2) Substantial Progress
Government Code Section 11346.1(h) specifies that the emergency rulemaking
agency must demonstrate that it is making "substantial progress and has
proceeded with due diligence" to comply with the standard rulemaking provisions.
The Commission, at its December 10, 2015 meeting was requested by the
Department to authorize staff to file this emergency readopt, as well as file notice
of its intent to file a Certificate of Compliance.
Work on the emergency standard has been conducted by DFW biologists to
determine longer term impacts which necessitated filing the notice of the
Commissions intent to file a Certificate of Compliance in December. Due to the
statutory requirement for the Commission to hear the proposed Certificate of
Compliance rulemaking at its February 11, 2016 and April 14, 2016 meetings, it
is necessary for the Commission to request this first Emergency Readopt for a
period of 90-days, followed by a second 90 day request which is proposed to be
voted on at the Commission's March 15, 2016 teleconference.
Page 3 of 3
Regulatory Language
Section 8.01, Title 14, CCR is added to read:
Section 8.01. Special Measures for Fisheries at Risk
due to Drought Conditions.
a In response to continued extreme drought conditions the commission has
established a quick response process to temporarily close fisheries experiencing
degraded environmental conditions that may affect fish populations or their habitat
within waters of the state. The criteria set forth in subsections b and c are intended to
ensure that fisheries are protected under critical conditions stemming from the drou ht.
These criteria will be monitored in statewide inland fisheries and they will be evaluated
on a water by water basis over time as conditions change.
b The department may close to angling any waters of the state not currently listed in
Section 8.00 of these regulations if the director, or his or her designee, finds one or
more of the following conditions have been met:
A Water temperatures in occupied habitat exceed 70° Fahrenheit for over eight hours
a day for three consecutive da s
(B) Dissolved oxygen levels in occupied habitat drop below 5 mg for any period of
time over three consecutive days.
C Fish passage is impeded or blocked for fish species that rely on migration as part of
a life history trait.
(D)-Water levels for ponds, lakes and reservoirs drop below 10% of their ca aci .
(E) Adult breeding population levels are estimated to be below 500 individuals.
(c) Waters closed ursuant to subsection b shall be reopened by the department when
the director, or his or her designee, finds all of the following conditions have been met:
A Water temperatures in occupied habitat do not exceed 70° Fahrenheit over ei ht
hours a day for seven consecutive da s
B Dissolved oxygen levels in occupied habitat rise above 5 m IL and are maintained
at that level over seven consecutive days.
C Fish passage is available and no impediment exists to strand or concentrate adults
or iuveniles during their migration.
D Water levels for ponds, lakes and reservoirs have recovered to greater than 10% of
their capacity.
E Adult breeding population levels are estimated to be recovered to greater than 500
individuals.
(d) It shall be unlawful to take fish in any waters of the state closed to angling pursuant
to this Section.
(e) Notification of department actions.
(1) The department shall maintain a list of closed waters of the state and update that list
on Wednesday of each week by 1:00 pm.In the event that water conditions chape
later in the week the fishing status for each specific water will not change until the day
following the next Wednesday. It shall be the responsibilitYof the angler to use the
telephone number provided below or go to the department's website at
hftps://www.wildlife.ca.ciov/Regulations to obtain the current status of any water. The
number to call for information is 916 445-7600.
Note: Authority cited: Sections 200, 202an�v, 205, 240, and 315, Fish and Game
Code. Reference: Sections 200, 202, 205-and ,240, and 315, Fish and Game Code.
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