HomeMy WebLinkAboutF & G Notice regarding fisheries at risk due to drought Commissioners STATE OF CALIFORNIA Mike Yaun,Acting Executive Director
Eric Sklar,President Edmund G.Brown Jr_.Governor 1416 Ninth Street,Room 1320
Saint Helena Sacramento,CA 95814
Jacque Hostler-Carmesin,Vice President (916)6534899
McKinleyville Fish and Game Commission www.fgc.ca.gov
Anthony C.Williams,Member
Huntington Beach
Vacant,Member �d
Vacant,Member :ra` Lar
Wildlife Heritage and Conservation
Since 9870
March 11, 2016
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, and
OAL File #2015-0626-01 EE
Pursuant to the requirements of Government Code subsections 11346.1(a)(2) and 11346.1(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 70°F 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, CA. Consideration for adoption of the regular rulemaking is scheduled for
the April 14, 2016, Commission meeting in Santa Rosa.
There were no changes made to the previously noticed 90 day extension of emergency
action.
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
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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 fgc@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 sub al period, please consult OAL's website at hftp://www.oal.ca.gov under the heading
"Em rgency Reg ations."
Jon strom
Associate Govern ental Program Analyst
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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
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conditions and will need to be evaluated on a water by water basis and over time as conditions
change.
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 associated language based on experiences learned,
feedback from the public, and revisions to increase the efficacy of this emergency action.
II. Impact of Regulatory Action
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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 f=ederal Funding to the State:
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 f=ish 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.
Updated Informative Diciest (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.
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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, 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.Com missiom(.Comiiission), 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 to6ls 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.
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• 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.
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).
Pursuant to Section 11346.1(h), Government Code, OAL may approve not more than two
readoptions, each for a period not to exceed 90 days, of an emergency regulation that is the
same as or substantially equivalent to ars emergency regulation previously adopted by that
agency. At its June 11, 2015 meeting in Mammoth Lakes, the Fish and Game Commission
adopted the emergency action; and at its December 10, 2015 in San Diego, the Commission
adopted the request for the first 90 day extension. At the December 10, 2015 meeting the
Commission also voted to go to Notice with a regular rulemaking which has been noticed and
will be considered for adoption at its April 14, 2016 meeting in Santa Rosa, CA. (OAL Notice
#2015-1215-08.)
The Fish and Game Commission will meet again on March 15, 2016 during a teleconference
that takes place at: Fish and Game Commission Conference Room 1320, 1416 Ninth Street,
Sacramento, CA; Department of Fish and Wildlife, 50 Ericson Court, Arcata, CA 95521;
Department of Fish and Wildlife, 7329 Silverado Trail, Napa, CA 94558; and Department of Fish
and Wildlife, 4665 Lampson Avenue, Los Alamitos, CA 90720; where the Commission will
consider a second extension request for a period of 90-days. It is estimated that this second
90-day extension will allow for continued discussion, adoption and filing of the regular
rulemaking currently being considered to make these regulations permanent.
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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
nick 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 drought. These criteria will be monitored in statewide inland
fisheries and they will be evaluated on a water by water basis over time as conditions chap e.
b The de artment 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 days
B Dissolved oxygen levels in occupied habitat drop below 5 m /L 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 capacity.
(E)Adult breedingDopulation levels are estimated to be below 500 individuals.
(c).Waters close„ Il be reopened by the
closed to subsection b shall department when the
director, or his„or her designee finds all of the following conditions have been met:
AWater temperatures in occupied habitat do not exceed 70° Fahrenheit over eight hours a da
for seven consecutive days
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
Juveniles during their migration.
D Water levels for Ponds, lakes and reservoirs have recovered to-greater than 10% of their
capacity.
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(E) Adult breeding, population levels are estimated to be recovered to greater than 5,00
individuals.
(d) It_shall be unlawful to„take fish in any waters of the state closed to angling pursuant to this
Section.
CeINotification of department actions
1 -The de artment 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 change later in the
week the fishinq status for each s ecific water will not change until the day following the next
Wednesbelow orday.o to shall be the the department'swebsitt�the angler to use the telephone number provided
ge at https-//www.wild life.ca. ov/Regulations to obtain the
current status of any water; The number to call,for information is (9 16) 445-7600,
Note: Authority cited: Sections 200, 202 an�nd-40, 205, 240, and 315, Fish and Game Code.
Reference: Sections 200, 202, 205 and 2491240, and 315, Fish and Game Code.
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