HomeMy WebLinkAboutF and G Commission Notice - Livermore Tarplant Commissioners STATE OF CALIFORNIA Valerie Termini,Executive Director
Eric Sklar,President Edmund G.Brown Jr.,Governor BUTTEco Ninth Street, Room 1320
Saint Helena v1DMIiV1S�RATi cramento,CA 95814
Jacque Hostler-Carmesin,Vice President (916)653-4899
McKinleyville Fish and Game CommissiodEC 2 l www.fgc.ca.gov
Anthony C.Williams,Member [u �
Huntington Beach
Russell E.Burns,Member d . . ORCNLLI CALIFORNIA.
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Peter S.Silva,Member
Chula Vista
Wildlife Heritage and Conservation
Since 1870
December 14, 2016
TO ALL INTERESTED AND AFFECTED PARTIES:
This is to provide you with a copy of the notice of proposed regulatory action resulting
from the Commission's August 25, 2016 meeting, when it made a finding pursuant to
Section 2075.5, Fish and Game Code, that listing Livermore tarplant as endangered
under the California Endangered Species Act is warranted. The notice of proposed
regulatory action will be published in the California Regulatory Notice Register on
December 23, 2016.
Please note the date of the public hearing related to this matter and associated
deadlines for receipt of written comments.
Mr. Jeb Bjerke, Department of Fish and Wildlife, phone (916) 651-6594 or email
Jeb.Bjerke@wildlife.ca.gov, has been designated to respond to questions on the
substance of the proposed regulations.
Sincerely,
heri Tiemann �.
Associate Governmental Program Analyst
Attachment
TITLE 14. Fish and Game Commission
Notice of Proposed Changes in Regulations
NOTICE 1S HEREBY GIVEN that the Fish and Game Commission (Commission), pursuant to the
authority vested by Sections: 1904 and 2070 of the Fish and Game Code and to implement, interpret
or make specific Sections 1755, 1904, 2062, 2067, 2070, 2072.7 and 2075.5 of said Code, proposes
to amend Section 670.2, Title 14, California Code of Regulations, relating to Plants of California
Declared to be,Endangered, Threatened or Rare.
Informative Digest/Policy Statement Overview
Section 670.2 of Title 14, California Code of Regulations (CCR), provides a list, established by the
California Fish and Game Commission (Commission), of plants designated as endangered,
threatened or rare in California. The Commission has the authority to add or remove species from this
list if it finds that the action is warranted.
As required by Fish and Game Code Section 2075.5, subsection (e)(2), the Commission must initiate
proceedings in accordance with the Administrative Procedure Act to amend subsection (a)(2) of
Section 670.2, to add Livermore tarplant (Deinandra bacigaluph) to the list of endangered plants.
In making the recommendation to list Livermore tarplant pursuant to the California Endangered
Species Act, the Department identified the following primary threats: 1) recent and ongoing
development and changes in land use; 2) impacts from invasive species; 3) recreation activities;
4) herbicide use; and 5) the vulnerability of small populations. More detail about the current status of
Livermore tarplant can be found in the Report to the Fish and Game Commission, "Status Review of
Livermore Tarplant (Deinandra bacigaluph)" (Department of Fish and Wildlife, April 2016).
The proposed regulation will benefit the environment by protecting Livermore tarplant as an
endangered species.
Commission staff has searched the California Code of Regulations and has found that the proposed
regulation is neither inconsistent nor incompatible with existing state regulations. No other state entity
has the authority to list threatened and endangered species.
NOTICE IS GIVEN that any person interested may present statements, orally or in writing, relevant to
this action at a hearing to be held in Rohnert Park, California, on February 8, 2017, at 8:00 a.m., or as
soon thereafter as the matter may be heard at the DoubleTree by Hilton Hotel Sonoma,
One Doubletree Drive, Rohnert Park, CA 94928. It is requested, but not required, that written
comments be submitted on or before 5:00 p.m. on January 26, 2017 at the address given below, or
by email to FGC@fgc.ca.gov. Written comments mailed, or emailed to the Commission office, must
be received on February 6, 2017. All comments must be received no later than February 8, 2017, at
the hearing in Rohnert Park, California. If you would like copies of any modifications to this proposal,
please include your name and mailing address.
Availability of Documents
The Initial Statement of Reasons, text of the regulations, as well as all related documents upon which
the proposal is based (rulemaking file), are on file and available for public review from the agency
representative, Valerie Termini, Executive Director, Fish and Game Commission, 1416 Ninth Street,
Box 944209, Sacramento, California 94244-2090, phone (916) 653-4899. Please direct requests for
the above mentioned documents and inquiries concerning the regulatory process to Valerie Termini
or Sheri Tiemann at the preceding address or phone number. Jeb Bjerke, Department of Fish and
Wildlife, phone (916) 651-6594 or email Jeb.Bjerke@wildlife.ca.gov, has been designated to
respond to questions on the substance of the proposed regulations. Copies of the Notice of
Proposed Action, the Initial Statement of Reasons, and the text of the regulation in underline and
strikeout can be accessed through our website at hftp://www.fgc.ca.-gov.'
Availability of Modified Text
If the regulations adopted by the Commission differ from but are sufficiently related to the action
proposed, they will be available to the public for at least 15 days prior to the date of adoption. Any
person interested may obtain a copy of said regulations prior to the date of adoption by contacting the
agency representative named herein.
If the regulatory proposal is adopted, the final statement of reasons may be obtained from the
address above when it has been received from the agency program staff.
Impact of Regulatory Action/Results of the Economic Impact Assessment
The potential for significant statewide adverse economic impacts that might result from the proposed
regulatory action has been assessed, and the following initial determinations relative to the required
statutory categories have been made:
(a) Significant Statewide Adverse Economic Impact Directly Affecting Businesses, Including
the Ability of California Businesses to Compete with Businesses in Other States:
While the statutes of the California Endangered Species Act (CESA) do not-specifically
prohibit the consideration of economic impact in determining if listing is warranted, the
Attorney General's Office has consistently advised the Commission that it should not
consider economic impact in making a finding on listing. This is founded in the concept that
CESA was drafted in the image of the federal Endangered Species Act. The federal act
specifically prohibits consideration of economic impact during the listing process.
CESA is basically a two-stage process. During the first stage, the Commission must make
a finding on whether or not the petitioned action is warranted. By statute, once the
Commission has made a finding that the petitioned action is warranted, it must initiate a
rulemaking process to make a corresponding regulatory change. To accomplish this
second-stage, the Commission_foll.ws_the sta#utes_of.the.Administrative Procedure Act_. _......
(APA).
The provisions of the APA, specifically Sections 11346.3 and 11346.5 of the Government
Code, require an analysis of the economic impact of the proposed regulatory action. While
Section 11346.3 requires an analysis of economic impact on businesses and private
persons, it also contains a subdivision (a) which provides that agencies shall satisfy
economic assessment requirements only to the extent that the requirements do not conflict
with other State laws. In this regard, the provisions of CESA leading to a finding are in
apparent conflict with Section 11346.3, which is activated by the rulemaking component of
CESA.
Since the finding portion of CESA is silent to consideration of economic impact, it is
possible that subdivision (a) of Section 11346.3 does not exclude the requirement for
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economic impact analysis. While the Commission does not believe this is the case, an
abbreviated analysis of the likely economic impact of the proposed regulation change on
businesses and private individuals is provided. The intent of this analysis is to provide
disclosure, the basic premise of the APA process. The Commission believes that this
analysis fully meets the intent and language of both statutory programs.
Designation of Livermore tarplant as endangered will subject it to the provisions of CESA.
This Act prohibits take and possession except as may be permitted by the Department, the
Native Plant Protection Act, or the California Desert Native Plants Act.
Endangered status is not expected to result in any significant adverse economic effect on
small business or significant cost to private persons or entities undertaking activities subject
to the California Environmental Quality Act (CEQA). CEQA requires local governments and
private applicants undertaking projects subject to CEQA to consider de facto endangered
species to be subject to the same requirements under CEQA as though they were already
listed by the Commission in Section 670.2 (CEQA Guidelines, Section 15380). Livermore
tarplant has qualified for protection under the CEQA Guidelines Section 15380 since its
formal scientific description in 1999.
Required mitigation as a result of lead agency actions under CEQA, whether or not the
species is listed by the Commission, may increase the cost of a project. Such costs may
include, but are not limited to, purchasing off-site habitat, development and implementation
of management plans, establishing new populations, installation of protective devices such
as fencing, protection of additional habitat, and long-term monitoring of mitigation sites.
Lead agencies may also require additional actions should the mitigation measures fail,
resulting in added expenditures by the proponent. If the mitigation measures required by
the CEQA lead agency do not minimize and fully mitigate to the standards of CESA, listing
could increase business costs by requiring measures beyond those required by CEQA.
(b) Impact on the Creation or Elimination of Jobs Within the State, the Creation of New
Businesses or the Elimination of Existing Businesses, or the Expansion of Businesses in
California; Benefits of the Regulation to the Health and Welfare of California Residents,
Worker Safety, and the State's Environment:
The Commission does not anticipate any impacts on the creation or elimination of jobs, the
creation of new business, the elimination of existing businesses or the expansion of
businesses in California. The entire distribution of Livermore tarplant is limited to four
occurrences in and near the city of Livermore, California. Because of this localized
distribution, adding Livermore tarplant to the list of endangered species under CESA is
unlikely to affect the creation or elimination of jobs or businesses within the state as a
whole.
The Commission does not anticipate benefits to the health and welfare of California
residents or to worker safety.
The Commission anticipates benefits to the State's environment by the protection of
Livermore tarplant.
(c) Cost Impacts on Representative Private Persons/Business:
Designation of threatened or endangered status, per se, would not necessarily result in any
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significant cost to private persons or entities undertaking activities subject to CEQA. CEQA
presently requires private applicants undertaking projects subject to CEQA to consider de
facto endangered (or threatened) and rare species to be subject to the same protections
under CEQA as though they are already listed by the Commission in Section 670.2 or
670.5 of Title 14, CCR (CEQA Guidelines Section 15380).
Any added costs should be more than offset by savings that would be realized through the
informal consultation process available to private applicants under CESA. The process
would allow conflicts to be resolved at an early stage in project planning and development,
thereby avoiding conflicts later in the CEQA review process, which would be more costly
and difficult to resolve.
Although it is unlikely that the listing of Livermore tarplant will have an adverse economic
impact, it should be noted that most populations of Livermore tarplant occur on private
property. Such private holdings are subject to possible sale and/or development, which
could be impacted by this listing action.
(d) Costs or Savings to State Agencies or Costs/Savings in Federal Funding to the State:
None.
(e) Other Nondiscretionary Costs/Savings to Local Agencies: None.
(f) Programs Mandated on Local Agencies or School Districts: None.
(g) 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: None.
(h) Effect on Housing Costs: None.
Effect on Small Business
It has been determined that the adoption of these regulations may affect small business. The
Commission has drafted the regulations in Plain English pursuant to Government Code
Sections 11342.550 and 11346.2(a)(1).
Consideration of Alternatives
The_.Commission.must determine that no reasonable..alternative considered by the-Commission, or
that has otherwise been identified and brought to the attention of the Commission, would be more
effective in carrying out the purpose for which the action is proposed, would be as effective and less
burdensome to affected private persons than the proposed action, or would be more cost effective to
affected private persons and equally effective in implementing the statutory policy or other provision
of law.
FISH AND GAME COMMISSION
Valerie Termini
Dated: December 13, 2016 Executive Director
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