HomeMy WebLinkAboutF&G Commission - Notice of Proposed Emergency Action Commissioners STATE OF CALIFORNIA Valerie Termini,Executive Director
Eric Sklar,President Edmund G.Brown Jr.,Governor 1416 Ninth Street,Room 1320
Saint Helena Sacramento,CA 95814
Jacque Hostler-Carmesin,Vice President (916)653-4899
McKinleyville Fish and Game Commission www.fgc.ca.gov
Anthony C.Williams,Member
Huntington Beach
Russell E.Burns,Member
Napa 4ItSi.
Peter S.Silva,Member
Chula Vista 13UTTE COUNTY
ADMINISTRATION
Wildlife Heritage and Conservation SEC 1 206
Since 1870
OROVIL?E,CAI.IfORNIA
December 8, 2016
NOTICE OF PROPOSED EMERGENCY ACTION
Emergency Abalone Take Reduction Due to Harmful Environmental Conditions
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 regard 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 "Abalone Take Reduction"
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, Rm. 1320
Sacramento, CA 95814 Sacramento, CA 95814
E-mail Address: staffer-oal.ca.gov fgc@fgc.ca.gov
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 hftp://www.oal.ca..goy
under the heading "Emergency Regulations."
CALIFORNIA FISH AND GAME COMMISSION
FINDING OF EMERGENCY AND
STATEMENT OF PROPOSED EMERGENCY REGULATORY ACTION
Emergency Action to
Amend subsections (b) and (c) of Section 29.15,
Title 14, California Code of.Regulations
Re: Emergency Abalone Take Reduction Due to Harmful Environmental Conditions
Date of Statement: December 8, 2016
h Statement of Facts Constituting the Need for Emergency Regulatory Action
The recreational red abalone (Haiiotis rufescens) fishery is one of California's
most successful and popular fisheries, and is economically important, particularly
to Sonoma and Mendocino counties where approximately 95 percent of the multi-
million dollar fishery takes place. Over 25,000 fishermen participate in the fishery
each year. Red abalone may be taken with a sport fishing license subject to
regulations prescribed by the Fish and Game Commission (Commission).
Under existing statute (Fish and Game Code Section 5521) and regulation
(Section 29.15, Title 14, CCR), abalone may only be taken for recreational
purposes north of a line drawn due west magnetic from the center of the mouth
of San Francisco Bay, except in the closed Fort Ross area. The current
regulation also specify the season, hours, daily and annual limits, special gear
provisions, measuring devices, abalone report card requirements, and minimum
size. Red abalone may only be collected by skin diving (without SCUBA) or rock
picking during low tides, so that a deep-water refuge population is maintained to
enhance productivity of the fishery. The recreational red abalone season is
scheduled to open April 1, 2017.
In 2005, the Commission adopted the Abalone Recovery and Management Plan
(ARMP) pursuant to requirements in statute (Fish and Game Code
Section 5522), to provide a cohesive framework for recovering depleted abalone
populations in southern California, and for managing the northern California
fishery and future fisheries, including red abalone. The ARMP articulates a
framework for sustaining abalone populations based largely on densities, catch,
size, and reproductive success as triggers for adjusting total allowable catch
(TAC) and engaging other management measures. Using criteria described in
the ARMP, the TAC is adjusted when specific triggers are met, through various
management actions such as changes to daily bag limits, seasonal limits, and
season length.
In 2013, when average densities in northern California fell below established
triggers and site closure triggers were met, the Commission took action to adjust
the TAC from 280,000 to 190,000, with the goal to sufficiently reduce take such
that densities would stop declining and eventually recover to target densities. The
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Commission also took management action to meet the adjusted TAC by
amending the annual limit for abalone north of the Mendocino/Sonoma county
line from 24 to 18, amending the annual limit south of the Mendocino/Sonoma
county line from 24 to 9, and moving the start time for fishing from one half hour
before sunrise to 8:00 a.m. The Fort Ross area was closed to abalone fishing as
a result of hitting the closure trigger. The new regulations went into effect in
2014, resulting in a 35 percent decline in take to approximately 148,000; in 2015,
take was down 31 percent from 2013 at approximately 155,000.
In 2015, a combination of unprecedented environmental and biological stressors
began to take their toll on abalone populations, including warmer-than-normal
waters and decreasing food resources, leading to starvation conditions.
Throughout 2016, the Department of Fish and Wildlife (Department) has
conducted surveys, visual assessments, and histological sampling of north coast
abalone, and has also been documenting citizen reports of unhealthy or
moribund abalone within the fishery. The Department has identified wide-
sweeping changes in the density, occurrence, size and health of red abalone and
the kelp upon which it depends for food. Specifically, the Department has found:
• Warm Water Conditions and Kelp and Algae Declines. Red abalone
are herbivores that live on rocky reefs in kelp forests, eating red and
brown algae. In 2014, the kelp forests in the abalone fishery region
declined by 93 percent due to extreme warm water conditions and an
unprecedented increase in herbivorous red and purple sea urchin
populations. Unlike abalone, sea urchin populations are generally resilient
to food shortages and can survive longer, such that even if water
conditions cool, grazing pressure from surviving sea urchins may still keep
kelp from wide-spread recovery. Warm water conditions persisted through
2015, impacting kelp recovery and abalone health. Recently there has
been some improvement in kelp growth with cooler water this year, but the
warm water appears to be returning this fall and current kelp canopies are
still very sparse compared to normal years. Recent oceanographic reports
suggest that warm-water conditions may return again in 2017.
• Starvation Conditions. Red abalone are susceptible to starvation when
kelp and algal abundances decline. Kelp and other algal species are
being actively cleared from rocky bottom habitat that is dominated by
purple sea urchin, which is greater than sixty times more abundant now
- an prior t '2013rc _.iii popu a ions ihcrease ih part" due-td-large-
scale
ue td arge-
scale loss of predatory starfish species in 2013 due to sea star wasting
disease. Bull kelp and other algal food sources for abalone have remained
at extremely low levels since 2014; the large number of purple urchins is
likely keeping kelp recovery confined to very limited areas.
Abalone have been observed stacked on top of each other in shallow
water, which could be attributed to either abalone moving from deeper
water to shallower water where algae is slightly more abundant, or
abalone trying to graze whatever algae is growing on the shells of other
abalone; shells were observed to be unusually clean of algal growth.
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Recent evidence indicates the starvation conditions have not yet abated;
additional impacts are expected through the 2017 and 2018 seasons.
• Density Declines. In spite of the Commission's 2013 actions to reduce
take and recover densities, the actions were ineffective in preventing
densities from continuing to decline, from an average of 0.47 per square
meter (m) in 2013 to 0.44 per m2 in 2016. The Department believes the
density decline is largely due to the environmental conditions described
herein.
• Deep-Water Refuge. Deep-water refuge is believed to be a critical
component in maintaining a highly productive recreational fishery. Deep-
water abalone are generally safe from take and can be a source of both
adults to replace abalone removed from shallower waters and larvae to
enhance abalone reproduction rates. Summer of 2016 surveys showed
dramatic reductions in abalone densities in deep water refuges (greater
than 28 foot depths). The average density of deep-water red abalone
populations over the past four years has declined below the ARMP
management trigger and increases the risk that the fishery is not
sustainable. It should be noted that abalone movement from deep water
into shallow water or from cryptic locations to exposed shallow areas can
give the impression that abalone populations are stable or have increased
if the absence of abalone in deeper waters is not considered.
• Abalone Health, Reproduction, and Mortality. The abundance of warm
water, coupled with a lack of algae, has severely impacted the health and
reproductive development of abalone. Fishermen and the public have
reported weak, shrunken, and dying abalone, as well as unusually high
numbers of empty shells of all size classes throughout 2016. Department
surveys revealed more than 25 percent of catch at 10 survey sites had
body mass that was shrunken (meat smaller than the shell). Reductions in
body mass lead to reduced reproductive fitness; just a 20% reduction in
body mass can reduce reproduction by 60-90 percent. Red abalone
require approximately 12 years to grow to minimum legal size, so that
multi-year gaps in reproduction will be observed in the fishery for years to
come. Furthermore, recent laboratory feeding studies of starved wild red
abalone indicate that reproductive capability may take more than one year
to recover to normal levels after algal conditions improve.
The weakened condition of abalone may also reduce their ability to
withstand normal storm waves during the winter of 2016 — 2017, and
increase mortality. Both 2015 and 2016 were poor reproduction years
compared with previous average or good years, which may put future
sustainability of the fishery at risk. Lack of kelp and other algae greatly
reduces cover for red abalone, making them easier to locate by fishermen.
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Existence of an Emergency and Need for immediate Action
The Department considered the following factors in determining whether an
emergency exists: The magnitude of potential harm; the existence of a crisis
situation; the immediacy of the need; and whether the anticipation of harm has a
basis firmer than simple speculation. Department field surveys in 2015 and 2016
demonstrate that all these factors have been met. The Department is proposing
emergency regulatory action because the urgency of the situation requires
actions to go into effect prior to the start of the upcoming 2017 season, to allow
adequate time to communicate the changes to affected stakeholders and amend
abalone report cards. The Department will also recommend making the proposed
emergency regulations permanent pursuant to a standard rulemaking because
the impacts from the harmful conditions are expected to be long-lasting.
Studies, Reports, or Documents Supporting Factual Emergency
The Department relied on the following documents in proposing this emergency
rulemaking action:
(1) The Abalone Recovery and Management Plan
hftps://www.wildlife.ca.gov/Conservation/Marine/ARMP
Department staff has documented critical negative impacts to red abalone fishing
grounds:
(1) A dramatic decline in sea stars, important sea urchin predators, due to
sea star disease.
(2) A dramatic decline (93 percent) of the kelp canopy in Sonoma and
Mendocino counties in 2014.
(3) A dramatic increase (60 times) in the density of purple sea urchins in
2015, increasing competition with abalone for food.
(4) Warm seawater conditions in Sonoma and Mendocino counties in 2014
and 2015.
(5) A lack of kelp, which increases the efficiency of fishing efforts in shallow
habitats.
(6) A decline in deep-water abalone densities.
Continued decline in overall average abalone densities in spite of
significant take reductions implemented in 2014.
Department staff has documented critical negative impacts to red abalone health:
(1) Visual abalone body health scores for abalone taken in the fishery during
the spring of 2016 show that more than 25 percent of abalone were
shrunken in body mass at sites in northern California.
(2) Body condition index declined at Van Damme State Park by 20 percent,
but no significant difference was observed at Fort Ross in summer of
2016 (60 abalone per site).
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(3) .Department staff and abalone fishermen have observed weak abalone
washed up on shore and easy to remove from the rocks as well as many
new shells of all size classes, indicating increased natural mortality.
Department staff has documented critical negative impacts to red abalone
reproduction:
(1) Gonad index declined significantly at Van Damme State Park and at Fort
Ross in the summer of 2016 (60 abalone per site).
(2) Small numbers of larval abalone observed in plankton surveys in
Sonoma and Mendocino counties in 2015.
(3) Small numbers of newly settled abalone observed in coralline-covered
rock samples from Sonoma and Mendocino counties in 2015.
(4) Few juvenile (< 21 millimeter) red abalone observed in artificial reefs in
Van Damme State Park in 2015.
Regulatory Proposal
The ARMP provides the framework for regulatory proposals that should be
designed to maintain the sustainability of the resource and fishery. The
Department makes the following determinations in regards to the ARMP:
(1) The existing TAC is 190,000 (amended 2013).
(2) The deep density trigger requires 25 percent reduction in TAC, which
equates to reducing TAC from 190,000 to 142,500.
(3) Average densities continue to decline leading to a second trigger
requiring an additional 25 percent reduction in TAC, which equates to
reducing it from 142,500 to 106,875.
(4) The new TAC would be 107;000 (rounding to the nearest thousand).
(5) While considerable uncertainty exists under the current conditions
regarding how the abalone population will respond, all factors are
currently negative. Marine protected areas provide a benefit in protecting
a segment of the population from fishing pressure, but do not
necessarily help the fishery or the stock in terms of the current negative
environmental conditions that are affecting both.
The proposed regulation to achieve the specified TAC are based on catch
patterns, human behavior, and the many uncertainties of future conditions.
Public input to date indicates reductions in take should primarily come from the
annual limit rather than the daily limit. Season changes can produce savings, but
because efforts can shift to other months, yield is unpredictable and likely less
than otherwise expected. Considerable uncertainty exists regarding the response
by fishermen to new restrictions and, therefore, actual take. Table 1 provides an
analysis of likely take using changes to the annual limit along with some season
reductions. Fishermen have consistently and clearly indicated that a reduction to
the daily bag limit is considered an action of last resort and therefore has not
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been considered or recommended in this regulation change as other options
provide reasonable alternatives for likely achieving the specified TAC.
Table 1. Estimated take based on changes to annual limit and with season
length reductions
Target TAC = 107,000 Annual Limit
Daily Bag limit = 3 6 9 12 15 18
Estimated Catch 93,000 119,000 136,000 149,000 155,000
Estimated Catch + 91,000 118,000 135,000 147,000 155,000
November Closure
Estimated Catch + 80,000 104,000 119,000 129,000 136,000
November Closure +
April Closure
Based on the analysis summarized in Table 1, the Department proposes:
a. Reduce annual limit from 18 to 12, with the exception that the lower limit
of"not more than 9 abalone of the yearly trip limit may be taken south of
the boundary between Sonoma and Mendocino Counties" found in
subsection 29.15(c) will continue to apply.
b. Reduce season by closing November and April
c. Estimated take = 119,000
The Department understands the importance of the recreational red abalone
fishery and its sustainability. The Department's recommendation is proposed as a
result of discussions at the November 15, 2016 Marine Resources Committee,
which is designed to achieve the desired take reduction through fewer days on
the water (season length) and a lower total take opportunity (annual limit) in the
open area above the Mendocino/Sonoma county line.
The Department's recommendation is based on the numerous uncertainties and
risks involved and the impacts to fishermen from such dramatic reductions. The
current environmental conditions are unprecedented and the impacts to the
abalone resource are yet to be fully realized or understood. Not implementing
significant reductions in take risks pushing an already stressed population below
sustainable levels. We have already witnessed the consequences of inaction,
which resulted in the imposition of a statutory moratorium of the fishery south of
San Francisco since 1997.
The Department expects a larger savings the first year with a rebound the
following year; this is not unusual behavior when drastic changes are made to
recreational fisheries. The Department is not recommending closure of the
abalone fishery because abalone population densities (0.44 abalone per m2) are
above the ARMP`s fishery closure trigger of 0.3 abalone per m2.
In the absence of this emergency regulation, take of abalone at current levels
would continue during the coming season on abalone populations that have
declined below minimum sustainable levels prescribed in the ARMP for the deep
water (refuge) segment of their range. These emergency regulations are
designed to protect broodstock during this period of harmful environmental
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conditions when abalone is exceptionally vulnerable to both high natural and
fishing mortalities. This period is clearly one of reduced productivity of the
abalone population and it is uncertain how long the unfavorable conditions will
persist. Even with improved environmental conditions, the fishery will remain at
risk due to reduced productivity for more than one year. The decline of the deep-
water refuge population, coupled with ongoing starvation conditions and
subsequent poor abalone body condition, presents an emergency situation
requiring immediate management action to protect the fishery.
The Commission received public input on a potential emergency action at the
November 15, 2016 meeting of the Marine Resources Committee, where the
Department reported on the most recent survey findings, and at the
Commission's December 7-8, 2016 meeting.
Il. Impact of Regulatory Action
The potential for significant statewide adverse economic impacts that might result
from the proposed regulatory action has been assessed, and the following
determinations relative to the required statutory categories have been made:
(a) Costs or Savings to State Agencies or Costs/Savings in Federal Funding
to the State: None.
(b) Non discretionary Costs/Savings to Local Agencies: None.
(c) Programs Mandated on Local Agencies or School Districts: None.
(d) 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.
(e) Effect on Housing Costs: None.
Ill. Authority and Reference
The Commission proposes this emergency action pursuant to the authority
vested by sections 200, 202, 240, and 5520 of the Fish and Game Code and to
implement, interpret, or make more specific sections 200, 202, 205, 220, 240,
and 5520 of said code.
IV. Section 240 Finding
Pursuant to Section 240 of the Fish and Game Code, the Commission finds that
the adoption of this regulation is necessary for the immediate conservation,
preservation, or protection of birds, mammals, reptiles, or fish (abalone).
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Informative Digest (Plain English Overview)_
The recreational red abalone (Haliotis rufescens) fishery is one of California's most
successful and popular fisheries, and is economically important, particularly to Sonoma
and Mendocino counties where approximately 95 percent of the multi-million dollar
fishery takes place. Over 25,000 fishermen participate in the fishery each year. Red
abalone may be taken with a sport fishing license subject to regulations prescribed by
the Fish and Game Commission (Commission).
Under existing statute (Fish and Game Code Section 5521) and regulation (Section
29.15, Title 14, CCR), red abalone may only be taken for recreational purposes north of
a line drawn due west magnetic from the center of the mouth of San Francisco Bay,
except in the closed Fort Ross area. The current regulation also specifies the season,
hours, daily limits, special gear provisions, measuring devices, abalone report card
requirements, and minimum size. Red abalone may only be collected by skin diving
(without SCUBA) or rock picking during low tides. The recreational red abalone season
is scheduled to open April 1, 2017.
The Department has identified wide-sweeping changes in the density, occurrence, size
and health of red abalone and the kelp upon which it depends for food. Specifically, the
Department has found warm water conditions, kelp and algae declines, starvation
conditions, abalone density declines, movement from deep-water refuge, and negative
impacts on abalone health, reproduction and mortality.
To determine whether an emergency exists, the Department considered the following
factors: The magnitude of potential harm; the existence of a crisis situation; the
immediacy of the need; and whether the anticipation of harm has a basis firmer than
simple speculation. Department field surveys in 2015 and 2016 demonstrate that all
these factors have been met.
The Department has confirmed that management triggers under the Abalone Recovery
and Management Plan (ARMP) have been reached calling for a reduction of fishery
catch and is recommending this reduction be approved due to harmful environmental
conditions for abalone.
Proposed Regulatory Action
The proposed emergency regulation will reduce the take of abalone within the entire
--- ...... fishery to levels anticipated to be sustainable under current environmental conditions.
Acting under the guidance contained in the ARMP, the Department requests the
Commission take emergency action to reduce allowable take by amending abalone
subsections (b) and (c) of Section 29.15, Title 14, CCR, to reduce the red abalone
allowable annual take from 18 to 12 abalone, with the exception that the lower limit of
"not more than 9 abalone of the yearly trip limit may be taken south of the boundary
between Sonoma and Mendocino Counties" found in subsection 29.15(c) will continue
to apply, and to close April and November to fishing.
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Benefits: The proposed emergency reduction within the abalone fishery will benefit the
environment by protecting the valuable abalone resource from excessive fishing
mortality, which will allow the resource the opportunity to rebuild and be sustainable for
the future.
Consistency and Compatibility with Existing State Regulations: The Legislature has
delegated authority to the Commission to promulgate sport fishing regulations (Fish and
Game Code, sections 200, 202, and 205). No other state agency has the authority to
promulgate such regulations. The Commission has conducted a search of Title 14, CCR
and determined that the proposed regulation is neither inconsistent nor incompatible
with existing State regulations and that the proposed regulations are consistent with
other sport fishing regulations and marine protected area regulations in Title 14, CCR.
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Regulatory Language
§ 29.15. Title 14, CCR is amended to read:
§ 29.15. Abalone.
(b) Open Season and Hours:
(1) Open Season: Abalone may be taken only during the months of Apr-ial7May, June,
August, September, and October and Noyernhcr.
(2) Open Hours: Abalone may be taken only from 8:00 AM to one-half hour after sunset.
(c) Bag Limit and Yearly Trip Limit: Three red abalone, Haliotis rufescens, may be taken
per day. No more than three abalone may be possessed at any time. No other species
of abalone may be taken or possessed. Each person taking abalone shall stop
detaching abalone when the limit of three is reached. No person shall take more than48
12 abalone during a calendar year. In the Open Area as defined in subsections 29.15(a)
and 29.15(a)(1) above, not more than 9 abalone of the yearly trip limit may be taken
south of the boundary between Sonoma and Mendocino Counties.
[No changes to subsections (a) and(d) through (h)]
Note: Authority cited: Sections 200, 202, 205, 210, 220, 240, 5520, 5521, and 7149.8,
Fish and Game Code. Reference: Sections 200, 202, 205, 220, 5520, 5521, 7145 and
7149.8, Fish and Game Code.
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