HomeMy WebLinkAboutF&G - Notice of Proposed Changes in Regulations RE Incidental Take of Tricolored Blackbird During Candidacy Period i
Commissioners STATE OF CALIFORNIA Valerie Termini,Executive Director
b Eric Sklar,President Edmund G.Brown Jr., Governor 1416 Ninth Street,Room 1320
Saint Helena Sacramento,CA 95814
Jacque Hostler-Carmesin,Vice President (946)653-4899
McKinleyville Fish and Game Commission www.fgc.ca.gov
Anthony C.Williams, Member
Huntington Beach SYTI"TECOUNTY
Russell E.Burns,Member ADMINISTRATION
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Peter S.Silva,Member OCT 3 0 2017
EI Cajon
OROVILLE,CALIFORNIA
Wildlife Heritage and Conservation
Since 1870
October 23, 2017
TO ALL INTERESTED AND AFFECTED PARTIES:
This is to provide you with a copy of the notice of proposed regulatory action relative to
adding Section 749.9, Title 14, California Code of Regulations, regarding incidental take
of tricolored blackbird during candidacy period which will be published in the California
Regulatory Notice Register on October 27, 2017.
Please note the date of the public hearing related to this matter and associated
deadlines for receipt of written comments.
Additional information and all associated documents may be found on the Fish and
Game Commission website at.hftp://www.fqc.ca.gov/reguIations/2017/index.asp .
Neil Clipperton, Nongame Bird Conservation Coordinator, Department of Fish and
Wildlife, has been designated to respond to questions on the substance of the
proposed regulations. Mr. Clipperton can be reached at (916) 4.459753 or
Neil.Clipperton@wildlife.ca.gov.
Sincerely,
; herr Tiehia n
Associate Governmental Program Analyst
Attachment
TITLE 14, Fish and Game Commission
Notice of Proposed Changes in Regulations
NOTICE IS HEREBY GIVEN that the Fish and Game Commission (Commission),
pursuant to the authority vested by Sections 200, 265, 399 and 2084, of the Fish and
Game Code and to implement, interpret or make specific sections 200, 265, 399,
2080, 2084 and 2085, of said Code, proposes to add Section 749.9, Title 14,
California Code of Regulations, regarding Incidental Take of Tricolored Blackbird
During Candidacy Period
The Fish and Game Commission (Commission) is the decision-making body that
implements the California Endangered Species Act (CESA) (Fish & G. Code, § 2050
et seq.). As described in greater detail below, CESA authorizes the Commission to
establish lists of threatened and endangered species, and to add or remove species
from those lists if it finds, upon receipt of sufficient scientific information, that the
action is warranted. Pursuant to Section 2084, Fish and Game Code, the
Commission may authorize, subject to the terms and conditions it prescribes, the
taking of any candidate species while the Department of Fish and Wildlife
(Department) and Commission evaluate whether the species should be listed as
threatened or endangered under CESA.
Historically, tricolored blackbirds nested in native flora in or adjacent to wetlands in
the Central Valley and elsewhere across the State of California. Concomitant with the
loss of wetlands during the 19th and 20th centuries, tricolored blackbirds have
adapted to nest in varied substrates. For example, grain fields planted for winter
silage on dairy farms provide attractive nesting sites for the species; unfortunately,
nesting occurs at about the same time the crops are scheduled for harvest.
For the past two decades, a patchwork of funding sources has been used to pay
farmers for a lost crop when they agree to delay harvest until after tricolored blackbird
nesting is complete. In some cases, particularly where funding was unavailable or
farmers were not aware of the potential for funding to offset losses, harvest has
occurred before the young fledged. Recently, the U.S. Department of Agriculture's
Natural Resources Conservation Service (NRCS) committed to provide multiple years
of funding to support a program to delay harvest of fields in which'tricolored blackbird
colonies have nested. At the same time, Dairy Cares, an organization composed of
dairy businesses across California, in coordination with other farming interests has
initiated an active campaign to educate dairy farmers about tricolored blackbird and
the NRCS-funded program. In 2016, through a coordinated effort including NRCS,
farming interests, the Department, and Audubon California, dairy farmers enrolled in
the NRCS program delayed harvest on fields where an estimated 67,000 tricolored
blackbirds nested.
NRCS funds compensate a farmer for about 85 percent of the value of a crop lost by
a harvest delay. Under the NRCS program, a colony is identified and the area
inhabited by the colony is delineated by a biologist. Once the colony is delineated, a
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buffer is established and the farmer is allowed to harvest only those fields outside the
colony site and buffer area. Delaying harvest protects the vast majority of the colony
until the birds fledge, but it does not guarantee that no take will occur. The tricolored
blackbird was designated as a candidate for listing, and is therefore subject to the
regulatory protections provided by CESA. Promulgating a regulation to authorize
incidental take provides farmers assurances that if they agree to follow the
requirements imposed by NRCS, delay harvest, and protect the colony nesting in
their field, they will not be penalized in the event a small number of birds are taken
incidental to their beneficial conservation actions in delaying harvest and otherwise
lawful agricultural activities.
The harvest management programs administered by NRCS and the Department can
be expected to protect tens of thousands of nesting tricolored blackbirds provided
farmers are incentivized to participate. However, the designation of the tricolored
blackbird as a candidate for listing under CESA could inhibit participation in the
harvest management programs. This regulation, in combination with funding from
NRCS, will provide farmers with a strong incentive to participate in the harvest
management program.
Tricolored blackbird nesting can begin as early as February. The timing of this
nesting relative to the listing determination requires that a regulation be in place to
conserve nesting tricolored blackbirds and protect farmers that enroll in one of the
harvest management programs in 2018. Such action will effectuate the purposes of
Fish and Game Code Section 2084 and CESA more broadly. Absent this regulation,
enrollment in the NRCS program may decline. Furthermore, farmers may elect to
plant lower value crops that do not provide nesting habitat for tricolored blackbird,
thereby decreasing available nesting habitat; farmers may harvest their crop early
before onset of the nesting season, which would decrease the value of the crop and
also decrease available nesting habitat; or farmers may risk harvesting their crop
even if tricolored blackbird are present.
Without this regulation, prospective permittees, many of whom already have the
necessary entitlements to proceed with their approved projects, would be subject to
CESA's take prohibition without, by any reasonable measure, an ability to obtain the
necessary state authorization during the candidacy period. As a practical matter,
activities that result in the take of tricolored blackbird would be prohibited and could
not be implemented pending final action by the Commission on the listing petition, an
action whereby tricolored blackbird may or may not be listed as endangered or
threatened under CESA. As a result, many projects that are planned or underway
that provide great economic and other benefits to the permittees, their employees,
their local communities, and the State of California would be postponed during the
candidacy period or canceled entirely.
Proposed Regulations
Section 749.9 authorizes incidental take of the tricolored blackbird during candidacy
for three categories of activities:
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(1) Actions to protect, restore, conserve or enhance habitat.
(2) Actions to monitor tricolored blackbird breeding colonies.
(3) Harvest of grain crops under a harvest management program to protect
colonies.
(a) Take Authorization.
(1) Actions to Protect, Restore, Conserve, or Enhance Habitat.
Subdivision 749.9(x)(1), authorizes take of the tricolored blackbird
incidental to otherwise lawful activity, where the purpose of the activity
is to protect, restore, conserve, or enhance habitat for a species
designated as an endangered, threatened, or candidate species under
state or federal law. Without Section 749.9, subdivision (a)(1), take of
the tricolored blackbird incidental to otherwise lawful activities to
protect, restore, conserve, or enhance habitat for a species designated
as an endangered, threatened, or candidate species under state or
federal law would require authorization by the Department through an
individual ITP which is a lengthy, complicated process. Ongoing and
planned activities to protect, restore, conserve, or enhance habitat are
critical during this candidacy period. The status of many listed species
is precarious, and even the slightest delay in initiated or continued
implementation of any related conservation actions could adversely
affect or otherwise cause further decline of these species. In addition,
any further decline in the status of listed species will lead to increased
costs to the Department because more resources will be required to
conserve species populations to the extent where protective measures
are no longer necessary. Increased cost will also be shouldered by
prospective permittees, who will be charged with funding mitigation and
related monitoring required for impacts of their projects on the species.
Adoption of this regulation would minimize the hardships that would
result from delays in ongoing.or new lawful activities to protect, restore,
conserve, and enhance the habitat of state or federally threatened or
endangered species (including the tricolored blackbird). The
Commission finds that impacts to activities to protect, restore, conserve,
or enhance habitat of state or federally threatened or endangered
species caused by designating the tricolored blackbird as a candidate
species requires immediate action.
(2) Actions to Monitor Tricolored Blackbird Breeding Colonies.
Section 749.9, subdivision (a)(2), authorizes take of tricolored blackbird
incidental to efforts to monitor active tricolored blackbird breeding
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colonies, including entering colonies to perform walking transects. Only
trained observers approved by the Department will be authorized to
engage in such monitoring.
Without Section 749.9, subdivision (a)(2), the necessary monitoring
would not occur to ensure the protection and immediate conservation of
tricolored blackbird during the upcoming harvest of grain fields planted
for silage. Department guidance suggests that walking survey transects
through a portion of the colony could be used to estimate the nesting
stage of breeding colonies and inform decisions necessary to comply
with subsection (a)(3).
(3) Harvest of Grain Crops under a Harvest Management Program to
Protect Colonies.
Section 749.9, subdivision (a)(3), authorizes take of tricolored blackbird
incidental to harvest of grain fields and related agricultural activities
where the individual participates in a harvest management program
administered by the Natural Resources Conservation Service (NRCS),
or harvest management program administered or approved by the
Department. The harvest management program shall include the
establishment of a buffer zone and harvest date as described under
Topics 1 and 2 in the document "California Department of Fish and
Wildlife (Department) Staff Guidance Regarding Avoidance of Impacts
to Tricolored Blackbird Breeding Colonies on Agricultural Fields in
2015" (adopted on March 19, 2015 and available at
https://nrm.dfg.ca.gov/FileHandler.ashx?DocumentlD=99310&inline) .
An individual seeking authorization for take incidental to harvest of grain
fields and related agricultural activities shall receive written confirmation
of participation in the harvest management program and must obtain
specific authorization for the timing of harvest and related agricultural
activities from NRCS, the Department, or a biologist authorized by the
Department or NRCS before proceeding with any harvest activities that
take tricolor blackbirds
Without Section 749.9, subdivison (a)(3), enrollment in the NRCS
program may decline, which is necessary to ensure the protection and
immediate conservation of the tricolored blackbird during the upcoming
harvest of grain fields planted for silage.
(b) Reporting.
Section 749.9, subdivision (a)(2), requires that any person, individual,
organization, or public agency, or their agents, for which incidental take
of tricolored blackbirds is authorized pursuant to subdivision (a)(1) or
(a)(3), shall report observations and detections of tricolored blackbird
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colonies, including take, to the Department's Wildlife Branch by August
1 during the candidacy period.
As discussed in III above, it is vital that during this candidacy period
detections and observations of the tricolored blackbird are reported to
the Department so the Department can base its recommendation to the
Commission on whether listing tricolored blackbird is warranted on the
most complete information possible.
(c) Additions, Modifications or Revocation.
Incidental take of tricolored blackbird from activities not addressed in
this section may be authorized during the candidacy period by the
Commission pursuant to Fish and Game Code Section 2084, or by the
Department on a case-by-case basis pursuant to Fish and Game Code
Section 2081, or other authority provided by law.
This subdivision is necessary to clarify that subdivision (a)(1)-(3) are not
the only ways in which incidental take may be allowed and that other
avenues for authorizing the take of tricolored blackbird are not
precluded by the language.
Benefits of the Proposed Regulations
It is the policy of this state to encourage the conservation, maintenance, and
utilization of the living resources of the ocean and inland waters under the jurisdiction
and influence of the state for the benefit of all the citizens of the state. The objectives
of this policy include, but are not limited to, the maintenance of sufficient populations
of all species of terrestrial-organisms to ensure their continued existence.
Evaluation of Incompatibility With Existing Regulations:
Section 20, Article IV, of the State Constitution specifies that the Legislature may
delegate to the Commission such powers relating to the protection and propagation
of fish and game as the Legislature sees fit. The Legislature has delegated to the
Commission the power to establish regulations for the incidental take of a candidate
species (FGC Section 2084). Commission staff has searched California Code of
Regulations and has found that the proposed regulation is neither inconsistent nor
incompatible with existing state regulations.
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 the Handlery Hotel, 950 Hotel
Circle North, San Diego, California, on Thursday, December 6, 2017, at 8:00 a.m., or
as soon thereafter as the matter may be heard.
NOTICE IS ALSO GIVEN that any person interested may present statements, orally
or in writing, relevant to this action at a hearing to be held in the Resources Building
Auditorium, First Floor, 1416 Ninth Street, Sacramento, California,on Thursday,
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February 8, 2018, at 8:00 a.m., or as soon thereafter as the matter may be heard. It is
requested, but not required, that written comments be submitted on or before
5:00 p.m. on January 25, 2018 at the address given below, or by email to
IFGC(@f4c.ca.gov. Written comments mailed, or emailed to the Commission office,
must be received before 12:00 noon on February 2, 2018. All comments must be
received no later than February 8, 2018, at the hearing. 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. Neil
Clipperton, Nongame Bird Conservation Coordinator, Department of Fish and
Wildlife, has been designated to respond to questions on the substance of the
proposed regulations. Mr. Clipperton can be reached at (916) 445-9753 or
Neil.Clipperton@wildlife.ca.gov. 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 http://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
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:
Significant Statewide Adverse Economic Impact Directly Affecting Businesses,
Including the Ability of California Businesses to Compete with Businesses in Other
States:
(a) The proposed action will not have a significant statewide adverse economic
impact directly affecting business, including the ability of California businesses
to compete with businesses in other states.
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The proposed action will not have a significant statewide adverse
economic impact directly affecting business, including the ability of
California businesses to compete with businesses in other states.
Farmers that participate in the NRCS program were compensated for
about 85 percent of the value of a crop lost by harvest delay. The late
harvest silage crop may retain a portion of its full value after the
tricolored blackbird have vacated the affected acreage.
(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 impact on the creation or elimination of
jobs within the state. The proposed action is not anticipated to exert significant
impact on the creation of new businesses or the elimination of existing
businesses, or the expansion of businesses of California because the
proposed action does not introduce new costs. No impact on the Health and
Welfare of California Residents, or Worker Safety are anticipated. The State's
Environment should benefit by the improved management of tricolored
blackbirds.
(c) Cost Impacts on a Representative Private Person or Business:
The agency is not aware of any cost impacts that a representative private
person or business would necessarily incur in reasonable compliance with the
proposed action.
(d) Costs or Savings to State Agencies or Costs/Savings in Federal Funding to
the State:
The Commission has determined that the proposed regulation will likely
provide cost savings to state agencies in an undetermined amount. In the
absence of the proposed regulation, the Department would have to authorize
take of the tricolored blackbird on a project-by-project basis, which is both
time-consuming and costly for both the Department in processing and
authorizing such take, as well as to state agencies seeking take authorization.
(e) Nondiscretionary Costs/Savings to Local Agencies:
The Commission has determined that adoption of the proposed regulation will
likely provide cost savings to local agencies in an undetermined amount. In the
absence of the proposed regulation, the Department would have to authorize
take of the tricolored blackbird on a project-by-project basis, which is both
time-consuming and costly to local agencies seeking take authorization. These
delays and cancellations may cause great economic harm to persons already
lawfully engaged in such activities, their employees, their local communities,
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and the State of California.
(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,
Government Code: 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 11342.580 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:October 17, 2017 Executive Director
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