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HomeMy WebLinkAboutF&G Commission - Drought notice 2 (2) Commissioners STATE OF CALIFORNIA Sonke Mastrup,Executive Director Jack Baylis,President Edmund G.Brown Jr.,Governor 1416 Ninth Street,Room 1320 Los Angeles Sacramento,CA 95814 Jim Kellogg,Vice President (916)653-4899 Discovery Bay F'ish and Game Commission Richard Rogers,Member www,fgc.ca.gov Santa Barbara Michael Sutton,Member ',COUNTY Monterey ADMINISTRATION Jacque Hostler-Carmesin,Member MoKinleyville DIEC 2 12015 Wildlife Heritage and Conservation Since 1870 December 24, 2015 This is to provide you with a copy of the notice of proposed regulatory action relative to adding Section 8.01, Title 14, California Code of Regulations, relating to special measures for fisheries at risk due to drought conditions, which are published in the California Regulatory Notice Register on December 25, 2015. Please note the dates of the public hearings 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 www.fgc.ca.gov. Mr. Roger Bloom, Fisheries Branch, phone (916) 445-3777, has been designated to respond to questions on the substance of the proposed regulations. Six6rely, `r - - f- -S-M- Alstr m L,�- 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, 202, 205, 240 and 315 of the Fish and Game Code and to implement, interpret or make specific Sections 200, 205, 240, and 315 of said Code, proposes to add Section 8.01, Title 14, California Code of Regulations (CCR), relating to special measures for fisheries at risk due to drought conditions. Informative Dinest/Policy Statement Overview California has recently experienced severe drought conditions with record low snow pack in 2015. In early 2014, Governor Edmund G. Brown Jr. proclaimed a State of Emergency to exist in California and ordered the Department to work with the Commission, using the best available science, to determine whether restricting fishing in certain areas will become necessary and prudent as drought conditions persist. On April 1, 2015, the Governor ordered state agencies to impose statewide mandatory water restrictions that will save water, increase enforcement against water waste, streamline the state's drought response, and invest in new drought resilient technologies for California. The Department of Fish and Wildlife (Department) continues to evaluate and manage the changing impacts of drought on threatened and endangered species and species of special concern, and develop contingency plans for state Wildlife Areas and Ecological Reserves to manage reduced water resources in the public interest. Statewide water quality and quantity in many systems will likely be inadequate to support fisheries if existing environmental conditions persist, resulting in impeded passage of spawning fish, increased vulnerability to mortality from predation and physiological stress, and increased angling harvest and/or hooking mortality. Furthermore, survival of eggs and juvenile fish in these systems experiencing degraded habitats could be extremely low. The historically low water conditions may concentrate cold water fish populations into shrinking pools of cold water habitat making them easy prey for illegal angling methods such as snagging, increased hooking mortality due to legal catch and release, over-harvest, as well as other human-related disturbances within their freshwater habitat. When coupled with environmental stressors, such as high water temperature, low dissolved oxygen, and severely reduced suitable habitat, these stressors can seriously affect reproductive success and survival rates. Although habitat conditions can recover with the onset of good water quality, reduced population levels caused by drought conditions could still threaten the persistence and resilience of the fishery. Since 2014, the Department hasworkedwith the Fish and Game Commission (Commission), using the best available science, to determine whether restricting fishing in certain areas will become necessary and prudent as habitat conditions degrade and or fish populations drop below a sustainable level. On June 11, 2015, the Commission adopted emergency regulations which establish a quick response process to temporarily close fisheries experiencing degraded environmental conditions that may affect fish populations or their habitat within waters of the state. These emergency regulations went into effect on July 2, 2015 and will expire on December 31, 2015. To ensure that fisheries are protected now and in the future, the Department is proposing that the Commission make permanent the emergency regulations set forth in Section 8.01, Title 14, CCR, as amended herein. 2 Regulatory Proposal Environmental conditions resulting in degraded habitat quality and or extremely low population size may require temporary restrictions on fishing to protect fish populations and sustain future opportunity. These conditional changes may affect each waterbody and fish population differently based on various abiotic and biotic factors. Increased angling mortality, harvest, angling pressure, and fish population size are the key components used to evaluate potential effects associated with degraded environmental conditions and will need to be evaluated on a water by water basis and over time as conditions change. To ensure that fisheries are protected under critical conditions, the Department is proposing a set of triggers to guide fishing closure and reopening decisions. The Department's decision to close or open individual waters will be based on the most current information available, collected by professional staff trained in the associated fields. Criteria for evaluating aquatic conditions are based on site-specific monitoring efforts with an emphasis on listed fish species, species of special concern, and gamefish. The following proposed criteria will be used to determine if a fishing closure or associated reopening is warranted: Any water of the state not currently listed in Section 8.00 of these regulations may be closed to fishing by the Department when the Director, or his or her designee, determines one or more the following conditions have been met: • Water temperatures in occupied habitat exceed 70° Fahrenheit for over eight hours a day for three consecutive days. • Dissolved oxygen levels in occupied habitat drop below 5 mg/L for any period of time over two consecutive days. • Fish passage is impeded or blocked for fish species that rely on migration as part of a life history trait. • Water levels for ponds, lakes and reservoirs drop below 10% of their capacity, • Adult breeding population levels are estimated to be below 50 individuals for a sub- population and 500 individuals for a standard population. All waters closed pursuant to this section will be reopened by the Department when the Director, or his or her designee, determines the initial closure-based criteria are no longer met and water temperatures do not exceed 70° Fahrenheit for over eight hours a day for 14 consecutive days and dissolved oxygen remains above 5 mg/L for 14 consecutive days.. Proposed Regulatory Changes from Emergency Regulations: The Department proposes additional modifications to the originally approved "emergency" text as shown in bold above due to further review of scientific literature as follows: 1. A consecutive 48 hour{two days} exposure rate for dissolved oxygen provides a better basis to address natural variability and risk for juvenile and early life stages of fish. 2. The Department is proposing to use the 501500 rule in evaluating angling closures to address the effects on both the localized level for smaller sub-populations and larger meta-population complexes. 3. The Department is proposing an extended period of recovery for water temperature and dissolved oxygen closures to account for natural variability and fluctuations once the upper limits for water temperature and dissolved oxygen have been exceeded. 3 Justification and associated data for closure and reopening decisions will be provided to the Commission for any water that is subject to a fishing closure. Benefits of the regulations As set forth in Fish and Game Code section 1700 it is "the policy of the state to encourage the conservation, maintenance, and utilization of the living resources of the ocean and other waters under the jurisdiction and influence of the state for the benefit of all the citizens of the state and to promote the development of local fisheries and distant-water fisheries based in California in harmony with international law respecting fishing and the conservation of the living resources of the oceans and other waters under the jurisdiction and influence of the state. Adoption of scientifically-based criteria for angling closures due to adverse habitat conditions provides for the protection and maintenance of sport fish populations to ensure their continued existence. The benefits of the proposed regulations are in sustainable management of the State's sport fish resources, and the businesses that rely on sport fishing in California. Consistency with State and Federal Regulations Section 20, Article IV, of the State.Constitution specifies that;the,Legislature may delegate to the Fish and Game 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 regulate recreational fishing in waters of the state (Fish & Game Code, §§ 200, 202, 205). The Commission has reviewed its own regulations and finds that the proposed regulations are neither inconsistent nor incompatible with existing state regulations. The Commission has searched the California Code of Regulations and finds no other state agency regulations pertaining to angling closures to protect sport fish populations. Further, the Commission has determined that there are no existing comparable federal 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 Resources Building Auditorium, 1416 Ninth Street, Sacramento, California, on Thursday, February 11, 2016 at 8:30 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 Flamingo Conference Resort & Spa, 2777 Fourth Street, Santa Rosa, CA 95405, California, on Thursday, April 14, 2016, at 8:30 a.m., or as soon thereafter as the matter may be heard. Written comments may be submitted at the address given below or by e-mail to FGC(a-).fgc.ca.gov. Written comments mailed or e-mailed to the Commission office, must be received before 12:00 noon on April 12, 2016. All comments must be received no later than April 14, 2016, at the hearing location listed above. If you would like copies of any modifications to this proposal, please include your name and mailing address. The regulations as proposed in strikeout-underline format, as well as an initial statement of reasons, including environmental considerations and all information upon which the proposal is based (rulemaking file), are on file and available for public review from the agency representative, Sonke Mastrup, 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 Sonke Mastrup or Jon Snellstrom at the preceding address or phone number. Roger Bloom, Department of Fish and Wildlife, phone (916) 445-3777, has been designated to respond to questions on the substance of the proposed regulations. Copies of the Initial Statement of Reasons, including the regulatory language, may be obtained from the address above. Notice of the proposed action shall be posted on the Fish and Game Commission website at. http-//www.fgc.ca.gov. 4 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. Circumstances beyond the control of the Commission (e.g., timing of Federal regulation adoption, timing of resource data collection, timelines do not allow, etc.) or changes made to be responsive to public recommendation and comments during the regulatory process may preclude full compliance with the 15-day comment period, and the Commission will exercise its powers under Section 202 of the Fish and Game Code. Regulations adopted pursuant-to this section are not subject to the time periods for adoption, amendment or repeal of regulations prescribed in Sections 11343.4, 11346.4 and 11346.8 of the Government Code. 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 Analysis 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: The proposed action is not anticipated to have a significant statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states because the expected impact of the proposed regulations on the amount of fishing activity is anticipated to be minimal relative to recreational angling effort statewide. (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 expected impact of the proposed regulations on the amount of fishing activity is anticipated to be minimal relative to recreational angling effort; statewide. Therefore the Commission does not anticipate any impacts on the creation or elimination of jobs, the creation of new business, the elimination of existing business or the expansion of businesses in California. The Commission anticipates benefits to the health and welfare of California residents. Protecting fish populations during poor habitat conditions ensures the maintenance of the fishery and is needed to ensure future opportunity for California anglers. Recreational angling is a healthy outdoor activity that encourages consumption of a nutritious food. The Commission does not anticipate any non-monetary benefits to worker safety because the proposed regulations do not affect working conditions. The Commission anticipates benefits to the environment by the sustainable management of California's sport fishing resources. (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. 5 (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). 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 Sonke Mastrup Dated: December 15, 2015 Executive Director 6