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HomeMy WebLinkAboutF&G - Notice of Proposed Emergency Action BUT'T'E COUNTY ADMINISTRATION Commissioners STATE OF CALIFORNIA FEB 2 3 2017Valerie Termini,Executive Director Eric Sklar,President Edmund G. Brown Jr.,Gove 1416 Ninth Street, Room 1320 Saint Helena VILLE,CALIFORNIE, Sacramento,CA 95814 Jacque Hostler-Carmesin,Vice President (916)653-4899 McKinleyville Fish and Game Commission www.f'gc.ca.gov Anthony C.Williams,Member Huntington Beach Russell E.Burns,Member "T Napa Peter S.Silva,Member El Cajon Wildlife Heritage and Conservation Since ?870 February 16, 2017 NOTICE OF PROPOSED EMERGENCY ACTION Incidental Take of Tricolored Blackbird (Agelaius tricolor) During Candidacy Period Pursuant to the requirements of Government Code'Section 11346.1(a)(1), the Fish and Game Commission (Commission) is providing notice of proposed emergency action with regards to the above-entitled emergency regulation. 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 or e-mail, relevant to the proposed emergency regulatory action. Written comments submitted via U.S. mail or e-mail 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 "Tricolored Blackbird" addressed to: Mailing Address: Reference Attorney California Fish and Game Commission Office of Administrative Law Attn: Sheri Tiemann 300 Capitol Mall, Suite 1250 1416 Ninth Street, Room 1320 Sacramento, CA 95814 Sacramento, CA 95814 E-mail Address: staff@oal.ca.gov fgc(a fgc.ca.goy 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 htt under the heading "Emergency Regulations." FISH AND GAME COMMISSION STATEMENT OF EMERGENCY ACTION Emergency Action to Add Section 749.9,Title 14, CCR, Re: Special Order Relating to Incidental Take of Tricolored Blackbird (Agelaius tricolor) During Candidacy Period I. Introduction The Fish and Game Commission (Commission) is the decision-making body that implements the California Endangered Species Act (CESA) (Section 2050 et seq. of the Fish and Game Code (FGC)). 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, FGC, 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. On December 10, 2015, the Commission considered the adoption of findings designating tricolored blackbird as a candidate species under CESA. The Commission has prepared this Statement of Emergency Action under the Administrative Procedure Act (APA) (Gov. Code Section 11340 et seq.) in connection with its subsequent adoption of Section 749.9 of Title 14 of the California Code of Regulations (CCR). The Commission's adoption of Section 749.9 as an emergency action under APA is based, in part, on authority provided by FGC sections 399 and 2084. Pursuant to FGC Section 2084, Section 749.9, Title 14, CCR, will authorize incidental "take" of tricolored blackbird during candidacy, subject to certain terms and conditions prescribed by the Commission. (See generally FGC, sections 2080, 2084, 2085 and 86.) As set forth below, the Commission designated tricolored blackbird as a candidate species under CESA and finds that adopting Section 749.9 pursuant to FGC sections 399 and 2084 constitutes a necessary emergency action by the Commission under APA. In the absence of this emergency regulation, individuals engaging in activities authorized pursuant to Section 749.9 would need to obtain an incidental take permit (ITP) or other authorization from the Department on a project-by-project basis to avoid potential criminal liability for violating CESA. Issuing individual ITPs authorizing incidental take is a complicated and lengthy process, and the Commission finds specifically that it is not feasible for the regulated community to obtain, and the Department to issue, ITPs or other authorizations on a project-by-project basis for the numerous activities that would otherwise be prohibited during the candidacy period for tricolored blackbird. 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 decade, 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 2015, 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 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 candidacy determination provides inadequate time for the Commission to comply with the normal APA process for adopting a regulation to authorize take. It is only possible to put a regulation in place to conserve nesting tricolored blackbirds and protect farmers that enroll in one of the harvest management programs in 2017 through emergency action. Such action will effectuate the purposes of Fish and Game Code Section 2084 and CESA more broadly. Page 2 of 12 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 emergency 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. The Commission finds this threatened result constitutes an emergency under APA requiring immediate action. II. Background On October 8, 2014, the Commission received a petition from the Center for Biological Diversity to take emergency action to list the tricolored blackbird (Agelaius tricolor) as endangered under CESA. On December 3, 2014, the Commission listed tricolored blackbird as endangered through emergency regulations that expired on June 30, 2015. In the interim, the Department prepared and submitted to the Commission a petition evaluation as required by CESA. The petition evaluation was received by the Commission at its April 9, 2015, meeting and on June 11, 2015, the Commission made a decision that listing tricolored blackbird as endangered was not warranted. On August 19, 2015, the Center for Biological Diversity submitted a petition that was largely the same as the petition submitted to the Commission on October 8, 2014, to take emergency action to list the tricolored blackbird as an endangered species. The petition included an addendum composed of two new relevant studies on the tricolored blackbird. On December 10, 2015, the Commission adopted findings designating the tricolored blackbird as a candidate species under CESA. On December 8, 2016, the Commission approved the Department's request for a six month extension to complete the status and peer review process for the petition to list tricolored blackbird as an endangered species; this six month extension will further delay final resolution of the tricolored blackbird final listing decision, which cannot occur until after the Commission receives the Department's completed status review pursuant to Fish and Game Code Sections 2074.6 and 2075. Ill. Facts Constituting the Need for Emergency Action APA defines an "emergency" to mean "a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare." (Gov. Code Page 3of12 Section 11342.545.). To make a finding of emergency, the agency must describe the specific facts supported by substantial evidence that demonstrate the existence of an emergency and the need for immediate adoption of the proposed regulation. (Gov. Code Section 11346.1(b)(2).). Some factors an agency may consider in determining whether an emergency exists include: (1) the magnitude of the potential harm, (2) the existence of a crisis situation, (3) the immediacy of the need, i.e., whether there is a substantial likelihood that serious harm will be experienced unless immediate action is taken, and (4) whether the anticipation of harm has a basis firmer than simple speculation. The Commission has considered all of these factors and the definition of an emergency provided in APA, as well as pertinent authority in FGC Section 399. Under this latter authority, notwithstanding any other provision of FGC, the Commission may adopt an emergency regulation where doing so is necessary for the immediate conservation, preservation, or protection of fish and wildlife resources, or for the immediate preservation of the public general welfare. The Commission finds that such necessity exists in the present case. Specifically, the Commission finds that: • A failure to adequately protect the tricolored blackbird would cause serious harm to the general welfare of the citizens of the State of California. • Action is necessary to ensure the protection and immediate conservation of the tricolored blackbird during the upcoming harvest of grain fields planted for silage. • This finding is based on the record before the Commission, generally and specifically the past activity under the Natural Resources Conservation Service program and the timing of the candidacy of the tricolored blackbird in relation to the upcoming harvest. Section 749.9 authorizes incidental take of the tricolored blackbird during candidacy for three categories of activities: • Actions to protect, restore, conserve or enhance habitat. • Actions to monitor tricolored blackbird breeding colonies. • Harvest of grain crops under a harvest management program to protect colonies. The regulation authorizes take, as defined by FGC Section 86, of tricolored blackbird in the limited circumstances described below subject to certain terms and conditions, during the species' candidacy under CESA. (a) Take Authorization. (1) Actions to Protect, Restore, Conserve, or Enhance Habitat. Subsection 749.9(a)(1), authorizes take of the tricolored blackbird incidental to otherwise lawful activity, where the purpose of the activity is to protect, restore, Page 4 of 12 conserve, or enhance habitat for a species designated as an endangered, threatened, or candidate species under state or federal law. Without Section 749.9, subsection (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 get the species to the point where protective measures are no longer necessary. Increased cost will also be shouldered by prospective permittees, who will be charged with funding the mitigation and related monitoring required for the impacts of their project on the species. Adoption of this-emergency regulation would minimize the hardships that would be caused by 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, constitute an emergency under the APA requiring immediate action. (2) Actions to Monitor Tricolored Blackbird Breeding Colonies. Section 749.9, subsection (a)(2), authorizes take of tricolored blackbird incidental to efforts to monitor active tricolored blackbird breeding colonies, including entering colonies to perform walking transects. Only trained observers who are approved by the Department will be authorized to engage in such monitoring. Without Section 749.9, subsection (a)(2), there would not be the necessary monitoring 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 that must be made to comply with subsection (a)(3). (3) Harvest of Grain Crops under a Harvest Management Program to Protect Colonies, Section 749.9, subsection(a)(3), authorizes take of tricolored blackbird incidental to harvest of grain fields and related agricultural activities where an 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 Page 5 of 12 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-lnrm.dfg.ca.gov/FileHandler.ashx?DocumentlD=99310&inline). The 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, subsection (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, subsection (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 subsections (a)(1) or (a)(3), shall report observations and detections of tricolored blackbird 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 be reported to the Department so it can have the most complete information possible as it prepares its recommendation to the Commission on whether to recommend listing the species, and for the Commission that must make the ultimate decision to list or not. (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 subsection is necessary to clarify that subsections (a)(1)-(3) are not the only ways in which incidental take may be allowed and that this emergency language does not preclude the use of other avenues for authorizing the take of tricolored blackbird. For these reasons, the immediate adoption of this emergency regulation is necessary to allow numerous projects and activities to continue during the candidacy review period for tricolored blackbird under CESA. This regulation includes conditions designed to protect the species for all of the activities covered. The Commission believes the activities permitted under this regulation will result in very limited take and will not likely Page 6 of 12 jeopardize the continued existence of the species. The Commission finds, in this respect, that the regulation subject to this determination will ensure appropriate interim protections for the tricolored blackbird while the Department conducts an 18-month review of the status of the candidate species and the Commission makes its final determination regarding listing under CESA. IV. Express Finding of Emergency Pursuant to the authority vested in the Commission by FGC Section 399, and for the reasons set forth above, the Commission expressly finds that the adoption of this regulation is necessary for the immediate conservation, preservation, or protection of fish and wildlife resources, or for the immediate preservation of the public general welfare. The Commission specifically finds that the adoption of this regulation will allow activities that may affect the tricolored blackbird to continue during the candidacy period as long as those activities are conducted in a manner consistent with the protections specified in this regulation. V. Authority and Reference Citations Authority: FGC Sections 200, 265, 399 and 2084. Reference: FGC Sections 200, 265, 399, 2080, 2084 and 2085. Vlll. Informative Digest The sections below describe laws relating to listing species under CESA, the effect of this emergency regulation, a description of related federal law, and a policy statement overview. A. Laws Related to the Emergency Regulation - Lasting under CESA 1. Petition and Acceptance FGC Section 2070 requires the Commission to establish a list of endangered species and a list of threatened species. Any interested person may petition the Commission to add a species to the endangered or threatened list by following the requirements in FGC Sections 2072 and 2072.3. If a petition is not factually incomplete and is on the appropriate form, it is forwarded to the Department for evaluation. FGC Section 2073.5 sets out the process for accepting for further consideration or rejecting a petition to list a species and, if the petition is accepted, a process for actually determining whether listing of the species as threatened or endangered is ultimately warranted. The first step toward petition acceptance involves a 90-day review of the petition by the Department to determine whether the petition contains sufficient information to indicate that the petitioned action may be warranted. The Department prepares a report to the Commission that recommends rejection or acceptance of the petition based on its evaluation. Page 7of12 FGC Section 2074.2 provides that, if the Commission finds that the petition provides sufficient information to indicate that the petitioned action may be warranted, the petition is accepted for consideration and the species that is the subject of the petition becomes a "candidate species" under CESA. CESA prohibits unauthorized take of a candidate species. FGC Section 86 states "take" means to hunt, pursue, catch, capture, or kill, or attempt to hunt, pursue, catch, capture, or kill. Killing of a candidate, threatened, or endangered species under CESA that is incidental to an otherwise lawful activity and not the primary purpose of the activity constitutes take under state law. (Department of Fish and Game v. Anderson-Cottonwood Irrigation District (1992) 8 Cal.AppAth 1554; see also Environmental Protection and Information Center v. California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 507 (in the context of an ITP issued by the Department under CESA the California Supreme Court stated, "'take' in this context means to catch, capture or kill").) CESA's take prohibition applies to candidate species pursuant to FGC Section 2085 upon public notice by the Commission of its finding that sufficient information exists to indicate the petitioned action may be warranted. Upon publication of such notice in the California Regulatory Notice Register, take of candidate species is prohibited absent authorization as provided in FGC. Following such notice, all activities, whether new or ongoing, that cause incidental take of the candidate species are in violation of CESA unless the take is authorized in regulations adopted by the Commission pursuant to FGC Section 2084 or the Department authorizes the take through the issuance of an ITP or other means available under CESA. 2. Status Review and Final Action on the Petition The Commission's acceptance of a petition initiates a 12-month review of the species' status by the Department, pursuant to FGC Section 2074.6. This status review helps to determine whether the species should be listed as threatened or endangered. Unlike the Department's initial evaluation, which focuses largely on the sufficiency of information submitted in the petition, the 12-month status review involves a broader inquiry into and evaluation of available information from other sources. The Commission is required to solicit data and comments on the proposed listing soon after the petition is accepted, and the Department's written status report must be based upon the best scientific information available. Within 12 months of the petition's acceptance, the Department must provide the Commission a written report that indicates whether the petitioned action is warranted. (FGC Section 2074.6.) The Commission may grant an extension of up to six months if the Director determines an extension is necessary to complete independent peer review of the report, and to provide a minimum of 30 days for public review of the peer reviewed report prior to the public hearing specified in FGC Section 2075. (FGC Section 2074.6.) The Commission must schedule the petition for final consideration at its next available meeting after receiving the Department's report. (1d., Section 2075.) In its final action on the petition, the Commission is required to decide whether listing the species Page 8 of 12 as threatened or endangered "is warranted" or "is not warranted." If listing is not warranted in the Commission's judgment, take of the former candidate species is no longer prohibited under CESA. (fd., Section 2075.5.) B. Effect of the Emergency Action Section 749.9 of Title 14 of the California Code of Regulations would authorize take, as defined by FGC Section 86, of the tricolored blackbird during its candidacy subject to the following terms and conditions: (a) Take Authorization. The Commission authorizes the take of tricolored blackbird during the candidacy period subject to the terms and conditions herein. (1) Actions to Protect, Restore, Conserve or Enhance Habitat. Take of 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. (2) Actions to Monitor Tricolored blackbird Breeding Colonies. Take of tricolored blackbird incidental to efforts to monitor active tricolored blackbird breeding colonies, including entering colonies to perform walking transects. Only trained observers who are approved by the Department will be authorized to engage in such monitoring. (3) Harvest of Grain Crops Under Harvest Management Program to Protect Colonies. Take of tricolored blackbird incidental to harvest of grain fields and related agricultural activities is authorized where an individual participates in a harvest management program administered by 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 ttps:llnrm.dfg.ca.gov/FileHandier.ashx?DocumentlD=99310&inline). The 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, Page 9of12 or a biologist authorized by the Department or NRCS before proceeding with any harvest activities that take tricolor blackbirds. (b) Reporting. Any person, individual, organization, or public agency, or their agents, for which incidental take of tricolored blackbirds is authorized pursuant to subsections (a)(1) or (a)(3), shall report observations and detections of tricolored blackbird colonies, including take, to the Department's Wildlife Branch by August 1 during the candidacy period. Information reported to the Department pursuant to this subsection shall include: a contact name; the date and location (GPS coordinate preferred) of the colony or take; colony size; colony outcome; and details regarding the tricolored blackbirds observed. Colony outcome means whether the colony was abandoned or whether young in a colony fledged. Any person, individual, organization, or public agency, or their agents seeking incidental take authorization pursuant to subsection (a)(3), shall report their participation in an approved harvest management program to the Department prior to grain harvest. (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 FGC Section 2084, or by the Department on a case-by-case basis pursuant to FGC Section 2081, or other authority provided by law. 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 CCR and has found that the proposed regulation is neither inconsistent nor incompatible with existing state regulations. VI. Specific Agency Statutory Requirements The Commission has complied with the special statutory requirements governing the adoption of emergency regulations pursuant to FGC Section 399. The Commission held a public hearing on this regulation on February 8, 2017, and the above finding that this regulation is necessary for the immediate conservation, preservation, or protection of fish and wildlife resources, and for the immediate preservation of the public general welfare meets the requirements of Section 399. VIII. Impact of Regulatory Action Page 10 of 12 The potential for significant statewide adverse economic impacts that might result from the emergency regulatory action has been assessed, and the following determinations relative to the required statutory categories have been made: (a) Costs/Savings in Federal Funding to the State: The Commission has determined that the adoption of Section 749.9 of Title 14 of the California Code of Regulations as an emergency regulation pursuant to FGC Section 2084 will not result in costs or savings in federal funding to the State. (b) Nondiscretionary Costs/Savings to Local Agencies: The Commission has determined that adoption of Section 749.9 of Title 14 of the California Code of Regulations as an emergency regulation pursuant to FGC Section 2084 will likely provide cost savings to local agencies in an undetermined amount. In the absence of the emergency 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 would cause great economic harm to persons already lawfully engaged in such activities, their employees, their local communities, and the State of California. (c) Programs Mandated on Local Agencies or School Districts: The Commission has determined that the adoption of Section 749.9 of Title 14 of the California Code of Regulations as an emergency regulation does not impose a mandate on local agencies or school districts. (d) Costs Imposed on Any Local Agency or School District that is Required to be Reimbursed Under Part 7 (commencing with Section 17540) of Division 4; Government Code: None. (e) Effect on Housing Costs: The Commission has determined that the adoption of Section 749.9 of Title 14 of the California Code of Regulations as an emergency regulation will not result in any cost to any local agency or school district for which Government Code sections 17500 through 17830 require reimbursement and will not affect housing costs. (f) Costs or Savings to State Agencies The Commission has determined that adoption of Section 749.9 of Title 14 of the California Code of Regulations as an emergency regulation pursuant to FGC Section 2084 will likely provide cost savings to state agencies in an undetermined amount. In the absence of the emergency regulation, the Department would have to authorize take of the tricolored blackbird on a project-by-project basis, which is both Page 11 of 12 time-consuming and costly for both the Department in processing and authorizing such take, as well as to state agencies seeking take authorization. Absent adoption of the emergency regulation, state and local agencies, and the regulated community will bear the timing and process costs associated with project-by- project permitting by the Department. Regulations implementing CESA contemplate a roughly six month review by the Department for proposed ITPs. Appropriate CEQA review for individual ITPs also affects the timing of permits issued by the Department. (CCR, Title 14, sections 783.3 and 783.5.) The number and timing of permits issued by the Department is also a product of economic conditions, and the resources actually available to the Department to administer the permitting program. Page 12 of 12 Regulatory Text Section 749.9, Title 14, CCR, is added to read: 749.9 Incidental Take of Tricolored Blackbird (Agelaius tricolor} During Candidacy Period This regulation authorizes take as defined by Fish and Game Code Section 85 of tricolored blackbird in the limited circumstances.described below, subject to certain terms and conditions during the species' candidacy under the California Endangered Species Act Fish and Game Code Section 2050 et seg.). a Take Authorization. The commission authorizes the take of tricolored„blackbird during the candidac period subject to the terms and conditions herein„ 1 Actions to Protect Restore Conserve or Enhance Habitat. Take of 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. (2) Actions to Monitor Tricolored Blackbird Breeding,Colonies. Take of tricolored blackbird incidental to efforts to monitor active tricolored blackbird breeding colonies including entering colonies to perform walking transects. Only trained observers who are approved by the department will be authorized to engage in such monitoring. (3) Harvest of Grain Crops Under Harvest Management Program to Protect Colonies. Take of tricolored blackbirdincidental to harvest of grainfields and related agricultural activities is authorized where an individual participates in a harvest management program administered b the Natural Resources Conservation Service (NRCS), or harvest mana ement program administered or approved b the department, the harvest management program am 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). The individual seekinq 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 1 department, or a biologist authorized by the department or NRCS before proceeding with any harvest activities that take tricolor blackbirds. (b) Reporting Any person, individual, organization, or public agency, or their agents, for which incidental take of tricolored blackbirds is authorized pursuant to subsections (a)(1) ora 3 shall-report observations and detections of tricolored blackbird colonies, including take, to the department's_Wildlife Branch by August 1 during the candidacy period. Information reported to the department pursuant to this subsection shall include: a contact name; the date and location GPS coordinate referred of the colony or take, colon size; colony outcome; and details regarding the tricolored blackbirds observed. Colon, , outcome means whether the colony was abandoned or whether young in a colony fledged. person: individual, organization, or public agency, or their agents seeking incidental take authorization pursuant to subsection a 3 shall report their participation in an approved harvest management ment program to the department prior to grain harvest. (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. Note: Authorit cited: Sections 200 265 399 and 2084 Fish and Game Code. Reference: Sections 200, 265, 399, 2080, 2084 and 2085, Fish and Game Code. 2