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HomeMy WebLinkAboutF&G - Notice of Proposed Changes in Regulations-Lassics Lupine & Coast Yellow Leptosiphon Commissioners STATE OF CALIFORNIA Valerie Termini,Executive Director Eric Sklar,President Edmund G.Brown Jr.,Governor P.O.Box 944209 Saint Helena Sacramento,CA 94244-2090 Anthony C.Williams,Vice President (916)653-4899 Huntington Beach Fish and Game Commission fgc@fgc.ca.gov BUTTE COUNTY ADMINISTRATION Jacque Hostler-Carmesin,Member www.fgc.ca.gov Mckinleyville AUG 3 2Di$ Russell E.Burns,Member k Napa Peter S.Silva,Member ° I< OROVILLE,CALIFORNIA Jamul jf ,.aA;c Wildlife Heritage and Conservation Since 1870 August 29, 2018 TO ALL INTERESTED AND AFFECTED PARTIES: This is to provide you with a copy of the notice of proposed regulatory action relative to amending Section 670.2, Title 14, California Code of Regulations, regarding Lassics lupine and coast yellow leptosiphon declared to be endangered plants, which will be published in the California Regulatory Notice Register on August 31, 2018. 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 http://www.fgc.ca.gov/regulations/2018/index.aspx. Jeb Bjerke, Senior Environmental Scientist, Department of Fish and Wildlife, has been designated to respond to questions on the substance of the proposed regulations. Mr. Bjerke can be reached at (916) 651-6594 or by email at Jeb.Bierke(a wildlife.ca.gov. Si erely, / l Y C� Sheri Tiema n Associate Governmental Program Analyst California Natural Resources Building 1416 Ninth Street,Room 1320,Sacramento,California 95814 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 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 subsections (a)(15)(I) and (a)(25)(B) of Section 670.2, Title 14, California Code of Regulations, relating to Lassics lupine and coast yellow leptosiphon - Plants of California Declared to be Endangered, Threatened, or Rare. Informative Digest/Policy Statement Overview Section 670.2, 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, subdivision (e)(2), the Commission must initiate proceedings in accordance with the Administrative Procedure Act to amend Section 670.2 to add Lassics lupine (Lupinus constance!) and coast yellow leptosiphon (Leptosiphon croceus) to the list of endangered plants. In making the recommendation to list Lassics lupine pursuant to the California Endangered Species Act, the California Department of Fish and Wildlife (Department) identified the following primary threats: (1) predation and herbivory; (2) climate change; (3) vegetation encroachment; (4) the vulnerability of small populations; and (5)fire. More detail about the current status of Lassics lupine can be found in the Report to the Fish and Game Commission, "Status Review of Lassics lupine (Lupinus constancei)" (Department of Fish and Wildlife, January 2018). In making the recommendation to list coast yellow leptosiphon pursuant to the California Endangered Species Act, the Department identified the following primary threats: 1) recent and ongoing development and land-use changes; 2) impacts from invasive plant species; 3) erosion; 4) human activities such as trampling; and 5) the vulnerability of small populations. More detail about the current status of coast yellow leptosiphon can be found in the Report to the Fish and Game Commission, "Status Review of Coast Yellow Leptosiphon (Leptosiphon croceus)" (Department of Fish and Wildlife, December 2017). The proposed regulation will benefit the environment by protecting Lassics lupine and coast yellow leptosiphon as endangered plants. 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 at the Radisson Fresno Conference Center,1055 Van Ness Avenue, Fresno, California, on Thursday, October 18, 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 October 4, 2018, at the address given below, or by email to FGC(c fgc.ca.gov. Written comments mailed (to Fish and Game Commission, PO Box 944209, Sacramento, CA 94244-2090), or emailed to the Commission office, must be received before 12:00 noon on October 12, 2018. All comments must be received no later than October 18, 2018, at the hearing in Fresno, California. If you would like copies of any modifications to this proposal, please include your name and mailing address. Availability of Documents Copies of the Notice of Proposed Action, the Initial Statement of Reasons, and the text of the regulation in underline and strikeout format can be accessed through the Commission's website at www.fgc.ca.gov. 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, Senior Environmental Scientist, Department of Fish and Wildlife, has been designated to respond to questions on the substance of the proposed regulations. Mr. Bjerke can be reached at (916) 651-6594 or by email at Jeb.Bjerke[a)wildlife.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 Business, Including the Ability of California Businesses to Compete with Businesses in Other States: While the statutes of 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 2 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. Listing under CESA is 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 follows the statutes 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 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 Lassics lupine and coast yellow leptosiphon as endangered will subject them to the provisions of CESA. CESA 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 for Lassics lupine and coast yellow leptosiphon 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). Lassics lupine and coast yellow leptosiphon have been recognized as rare plants in California for several decades, qualifying them for protection under CEQA Guidelines Section 15380. 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 3 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. Although compliance with CESA could result in some additional costs for projects that affect State-listed species, the distributions of Lassics lupine and coast yellow leptosiphon are very restricted. Furthermore, Lassics lupine only occurs on land that is under federal jurisdiction. It is unlikely that there will be many significant actions affecting the species that will be subject to the application of CESA or CEQA. Coast yellow leptosiphon is restricted to one small population on a single sea bluff. Therefore, designating Lassics lupine and coast yellow leptosiphon as endangered is unlikely to have any significant statewide adverse economic impact directly affecting businesses, including the ability of California businesses to compete with businesses in other states. (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 that there will be 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 as a result of the designation of Lassics lupine and coast yellow leptosiphon as endangered. The entire distribution of Lassics lupine is limited to two small and remote populations located entirely on federal land managed by the U.S. Forest Service. Coast yellow leptosiphon is restricted to one small population on a single sea bluff. Because of these localized distributions, adding Lassics lupine and coast yellow leptosiphon 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 Lassics lupine and coast yellow leptosiphon. (c) Cost Impacts on a Representative Private Person or Business: Designation of Lassics lupine and coast yellow leptosiphon as endangered is unlikely to have any cost impacts on a representative private person or business. The entire 4 distribution of Lassics lupine is limited to two small and remote populations located entirely on federal land managed by the U.S. Forest Service. Because Lassics lupine only occurs on land that is under federal jurisdiction and coast yellow leptosiphon is restricted to one small population on a single sea bluff, it is unlikely that there will be any actions affecting the species that will be subject to the application of CESA or CEQA, or that will result in any cost impacts on a representative private person or business. Furthermore, designation of threatened or endangered status, per se, would not necessarily result in any significant cost to private persons or entities undertaking activities that were 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, 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. The Commission 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: None. (e) 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, 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). 5 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: August 21, 2018 Executive Director 6