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HomeMy WebLinkAboutfg 3COMI-'EISSEONERS Danici W. Richards, President EDMLHVD C. BROWN, JR. Sonke Michael Sutton, Vice President Monterey Jim Kellogg, Member Discovery Bay Richard Rogers, Member Santa Barbara Jack Baylis, Member Los Angeles Governor STATE OP CALIFORNIA Fish and Game Commission tJCk.L U I I v N, llI KlrC'~I~UR 141tS N'inlh 5rreel, Room J320 -Box 9{4204 Sacrameeuo. CA 942 44-2 09 0 (916J 6.i3-4899 (9lbJ d33-040 Fax fgcr?fgc.ca.gov ~~ April 13, 2012 TQ ALL AFFECTED AND INTERESTED PARTIES: APR 162012 azovll.~ ~ This is to provide you with a copy of the notice of proposed emergency regulatory action relating to Blue Cavern State Marine Conservation Area (SMCA}. The objective of this regulation is to allow anchoring within the Blue-Cavern SMCA, except within the Catalina Marine Science Center Marine Life Refuge. The provision for the director of the refuge to authorize anchoring, mooring, or take of marine life for scientific purposes, under the conditions prescribed in a scientific collecting permit issued by the Department is unchanged. The Commission adopted this emergency regulation at its April 11, 2012 meeting. It is anticipated #hat the emergency regulation will be filed with the Office of Administrative Law (OAL) on or about April 20, 2012. Sincerely, Sherrie Fonbuena Associate Governmental Program Analyst Attachments ,~ r ~C --~ ~ ~ „~ ? ,~ €: TITLE 14. Fish and Game Commission Notice of Proposed Emergency Changes in Regulations NQTICE IS HEREBY GIVEN that the Fish and Game Commission {Commission), pursuant to the authority vested by sections 200, 202, 203.1, 205(c), 219, 220, 240, 1590, 1591, 2860, 2861 and 0750, Fish and Game Code; and sections 36725{a) and 36725{e), Public Resources Code; and to implement, interpret or make specific sections 200, 202, 203.1, 205(c), 219, 220, 240, 1580, 1583, 2861, 5521, 6653, $420(e} and 8500, Fish and Game Code; and sections 36700(e), 36710(e), 36725(a} and 36725(e), Public Resources Code, took emergency action to amend subsection (b)(102) of Section 632, Title 14, California Code of Regulations (CCR}, relating to Blue Cavern State Marine Conservation Area. Informative ©iaest'1Policy Statement Overview A. Laws Related t~ the Emergency Regulation The MLPA provides the authority for the Commission to establish a programmatic framework far designating MPAs in the form of a statewide network [Fish and Game Code {FGC) Sections 2850-2863]. Under existing regulations [Section 632(a)(7), Title 14, CCR], vessels shall be allowed to anchor in any MPA or marine managed area with catch onboard unless otherwise specified in subsection 632{b), areas and special regulations for use. Fishing gear shall not be deployed in the water while anchored in a state marine reserve. Under existing statute {FGC Section 10655), anchoring and mooring are restricted in the Catalina Marine Science Center Marine Life Refuge to protect ongoing scientific studies. The Director of the Refuge can authorize anchoring, mooring or take of marine life far scientific purposes, under the conditions prescribed in a scientific collec#ing permit issued by the Department. B. Effect of the Emergency Action This amendment of Section 632 will allow anchoring within the Blue Cavern SMCA, except within the Catalina Marine Science Center Marine Life Refuge. 'The provision for the director of the refuge to authorize anchoring, mooring, or take of marine life for scientific purposes, under the conditions prescribed in a scientific collecting permit issued by the Department {FGC Section 10655) is unchanged. C. Policy Statement Overview The objective of this emergency regulation is to avoid serious harm to the health and safety and general welfare of the public by allowing vessels safe anchorage for recreational diving activities in a portion of the Blue Cavern SMCA and to afford vessel protection from weather. [twill not compromise the existing no anchoring provisions of the Catalina Marine Science Center Marine Life Refuge D. Benefit of the Regulation The emergency regulation will result in non-monetary benefits related to public health and safety. The emergency regulation is neither inconsistent nor incompa#ible with existing state regulation. This regulation will re-open an area to anchoring #ha# was unintentionally closed. Prior to January 1, 2012 it was legal to anchor and moor in the area. Section 240 Finding Pursuant to the authority vested in it by Fish and Game Code Section 240 and for the reasons set forth in the attached °Statement of Emergency Action," the Commission expressly finds that the adoption of this emergency regulation is necessary for the immediate preservation of the health and safety and general welfare. The Commission specifically finds that the amendment of the current regulation will avoid serious harm to the health and safety and general welfare of the public by allowing vessels safe anchorage during diving and o#her non-consumptive activities. Public Comments on Proposed Emergency Regulations Government Cade 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, 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 the Office of Administrative Law, the Office of Administrative Law shall allow interested persons five calendar days to submit comments an the proposed emergency regulations as set forth in Government Code section 11349.6. In order to be considered, public comments on proposed emergency regulations must be submitted in writing to the Office of Administrative Law (OAL}, 300 Capitol Mall, Room 1250, Sacramento, CA 95814; AND to the Fish and Game Commission, 1416 Ninth Street, Room 1320, Sacramento, CA 95814, or via fax to (916} 653-5040 or via a-mail to fgc(c~fgc.ca.gov. Comments must identify the emergency topic and may address the finding of emergency, the standards set forth in sections 11346.1 and 11349.1 of the Government Code and Section 240 of the Fish and Game Code. Comments must be received within five calendar days of filing of the emergency regulations. Please refer to OAL's website (www.oal.ca.gov) to determine the date on which the regulations are filed with OAL. impact of Regulatory Action 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 or Savings to State Agencies or CostslSavings in Federal Funding to the State: Some unknown level of cost savings will be realized by not having to invest as much time in enforcement of confusing and potentially dangerous regulations. (b) Nandiscretionary CostslSavings to Local Agencies: None. 2 (c} Programs Mandated on Loca! 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; and (e} Effect on Housing Casts: None. Effect on Small Business It has been determined that the adoption of these regulations may affect small business. The Commission has drafted the regula#ions in Plain English pursuant #o Government Code sections 11342.580 and 11346.2(x)(1). Consideration of Alternatives in view a# information currently possessed, no reasonable alternative considered would be more effective in carrying out the purposes for which tine regulation is proposed, would be as effective and less burdensome to affected private persons than the proposed regulation, or would be mare cost-effective to affected private persons and equally effective in implementing the statutory policy or other provision of law. FISH AND GAME COMMISSION Dated: April 13, 2012 Sonke Mastrup . Executive Director 3 Statement of Facts Constituting Need for Emergency Action March 22, 2012 Page 2 of 6 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 #irmer than simple speculation. The Commission has considered all of these factors and the definition of an emergency provided in the APA, as well as pertinent authority in FGC Section 240. Under this latter authority, notwithstanding any other provision of the FGC, the Commission may adopt an emergency regulation where doing so is necessary for the immediate preservation of the public peace, health and safety, or general welfare. The Commission finds that such necessity exists in the present case. The Blue Cavern SMCA was intended to expand the "no take" zone afforded by the existing Catalina Marine Science Center Marine Life Refuge. This was accomplished through the regular MPA regulation process, but the new regulation also unintentionally expanded the "no anchoring" area in#o an area that is frequently used for anchoring by the public. The issue was not immediately recognized by the public and Department during the planning. process. Now that the regulation has been implemented and many are planning their fair weather activities, the problem with the regulation is now widely recognized by user groups, government enforcement agencies, and the nearby Catalina Marine Science Center. Several prime dive sites that are highly valued for perfect combinations of depth and underwater terrain are found within the Blue Cavern SMCA. Two different types of divers regularly use this area {experienced divers and inexperienced divers in scuba classes) and the use of this area increases dramatically during spring and summer. "Live-boating" is a technique sometimes used by dive boats in areas where they cannot anchor (usually very deep or drop off areas). This .technique requires that the captain deploy the divers into the water and keep the vessel constantly moving to remain within sight and easy access of the divers. Because the vessel is moving frequently it is very difficult for others to de#ermine just where divers may be located. Dive boats that are anchored and displaying.a dive flag send a message to everyone in the area to expect divers in the immediate area. A five-boat operation does not provide the same reference point, and diver safety could be compromised when several boats are conducting live-boat operations in a relatively small area. Live-boat operations would be the only type allowed by the current regulation. Scuba classes are regularly held within Blue Cavern SMCA because of the great diversity offered for gaining dive experience and for scuba class testing purposes. Live-boat diving is difficult and could also create a significant safety issue for those inexperienced divers. In addition, the dive sites at this location are very close to emergency services, something of great consideration for inexperienced divers. The Island's only hyperbaric chamber is located at nearby Two Harbors as well. as first responders from the Los Angeles County Lifeguards and Sheriff`s Department. The increased "no anchor" area Statement of Facts Constituting Need for Emergency Action March 22, 2012 Page 3 of 6 creates a situation where unnecessary public safety risk for divers, both experienced and inexperienced, now exists. In addition to the dive community, the Toss of this area to anchoring limits the places where small private boats can go to escape typical offshore weather patterns that can create high winds and waves, hence the high use for recreation. As weather improves and summer approaches, the number of non-consumptive users in this area is historically very high. Immediate action is needed to protect the health, safety, and general welfare of those that use this area of Catalina Island for recreation and for a safe harbor from inclement weather. In addition, enforcement of an unintended "no anchor" zone will IikeCy place an unnecessary burden on local and state enforcement assets. In reviewing available records and discussing the issue, this oversight occurred .during the MPA planning process resulting in unintended safety issues. The general rule and regulations for Marine Protected Areas (MPA) states (Section 632, Title 14, CCR): "Anchoring. Vessels shall be allowed to anchor in any marine protected area or marine managed area with catch onboard unless otherwise specified in subsection 632(b}, areas and' special regulations for use. Fishing gear shall not be deployed in the water while anchored in a state marine reserve. Fishing gear, except legal fishing gear used to take species identified as allowed for take in subsection 632(b}, shall not be deployed in the water while anchored in a state marine recreational management area, state marine park or state marine conservation area. Anchoring regulations shall be consistent with federal law and allowances made for anchoring required by emergency or severe weather." III. EXPRESS FINDING OF EMERGENCY Pursuant to the authority vested in the Commission by Fish and Game Code Section 240, and for the reasons set-forth above, the Commission expressly finds that the adoption of this emergency regulation is necessary forthe immediate preservation of the health and safety and general welfare. The Commission specifically finds that the amendment of the current regulation will avoid serious harm to the health and safety and genera! welfare of the public by allowing vessels safe anchorage during diving and other non-consumptive activities. lV. AUTHORITY AND REFERENCE CITATIONS Sections 200, 202, 203.1, 205(c}, 219, 220, 240, 1590, 1591, 2860, 2861 and 6750, Fish and Game Code; and Sections 36725(a) and 36725(e), Public Resources Code. Reference: Sections 200, 202, 203.1, 205(c}, 219, 220, 240, 1580, 1583, 2861, 5521, 6653, 8420(e) and 8500, Fish and Game Code; and Sections 36700(e), 36710(e}, 36725(a) and 36725(e), Public Resources Code. Statement of Facts Constituting Need for Emergency Action March 22, 2012 Page 4 of 6 V. INFORMATIVE DIGEST A. Laws Related to the Emergency_ReAUlation The MLPA provides the authority for the Commission to establish a programmatic framework for designating MPAs in the form of a statewide network (FGC Sections 2850-2863). Under existing regulations [Section 632(a)(7}, Title 14, CCR], vessels shall be allowed to anchor in any MPA or marine managed area with catch onboard unless otherwise specified in subsection 632(b), areas and special regulations for use. Fishing gear shall not be deployed in the water while anchored in a state marine reserve. Under existing statute (FGC Section 10655), anchoring and mooring are restricted in-the Catalina Marine Science Center Marine Life Refuge to protect ongoing scientific studies. The Director of the Refuge can authorize anchoring, mooring or take of marine life for scientific purposes, under the conditions prescribed in a scientific collecting permit issued by the Department. B. Effect of the Emergency Action This amendment of Section 632 will allow anchoring within the Blue Cavern SMCA, except within the Catalina- Marine Science Center Marine Life Refuge. The provision for the director of the refuge to au#harize anchoring, mooring, or take of marine life for scientifc purposes, under the conditions prescribed in a scientific collecting permit issued by the Department (FGC Section 10655) is unchanged. C. Policy Statement O_yerview The objective of this emergency regulation is to avoid serious harm to the health and safety and general welfare of the public by allowing vessels safe anchorage for recreational diving activities in a portion of the Blue Cavern SMCA and to afford vessel protection from weather. It will not compromise the existing no anchoring provisions of the Catalina Marine Science Center Marine Life Refuge D. Benefit of the Regulation The emergency regulation will result in non-monetary benefits related to public health and safety. Statement of Facts Constituting Need for Emergency Action March 22, 2012 Page 5 of 6 The emergency regulation is neither inconsistent nor incompatible with existing state regulation. This regulation will re-open an area to anchoring that was unintentionally closed. Prior to January 1, 2012 it was legal to anchor and moor in the area. VI. Specifc Agency Statutory Requirements The Commission has complied with the special statutory requirements governing the adoption of emergency regulations pursuant to FGC Section 240. VII. Impact of Regulatory Action 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 or Savings to State Agencies or CostslSavings in Federal Funding to the State: Some unknown level of cost savings will be realized by not having to invest as much time in enforcement of confusing and potentially dangerous regulations. (b) Nondiscretionary CostslSavings 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 Cade: None. {e) Effect on Housing Costs: None Statement of Facts Constituting Need-for Emergency Action March 22., 2012 Page 6 of 6 VIII. PROPOSED REGULATION CHANGE Subsection 632(b}(102), Title 14, CCR, is amended to read: (102) Blue Cavern (Catalina Island) State Marine Conservation Area. (A) This area is bounded by the mean high tide line and straight fines connecting the following points in the order listed: 33° 25.96' N. lat. 1.18° 27.00' W. long.; 33° 27.50` N. lat. 118° 27.00' W: long.; 33° 27.50' N. lat. 118° 29.30' W. tong.; and 33° 26.64' N. lat. 118° 29.30' W. long. (B) Take of all living marine resources is prohibited except for take pursuant to activities authorized under subsections 632(b){102)(D) and 632(b){102){E). (C) Except as pursuant to Federal law, emergency caused by hazardous weather, or as provided in t~s-sestisasubsection 632(b)(102}(D), it is unlawful to anchor or moor a vessel in the Q''~° r'^•~°rn c+.~+o 11A.~rino rr•nobr•,^f;,.n er°~Catalina Marine Science Center Marine Life Refuge (Section 109.32, Fish and Game Code). (D) The director of the Catalina Marine Science Center Marine Life Refu e, or any person that the director of the a~earefu a has authorized may anchor or moor a vessel or take, for scientific purposes, any fish or specimen of marine life: under the conditions prescribed in a scientific collecting permit issued by the department. (E) Maintenance of artificial structures inside the conservation area is allowed pursuant to any required federal, state and local permits, or as otherwise authorized by the department. Note: Authority cited: Sections 200, 202, 203.1, 205{c), 219, 220, 240, 1590, 1591, 2860, 2861 and 6750, Fish and Game Code; and Sections 36725(a) and 36725{e), Public Resources Cade. Reference: Sections 200, 202, 203.9, 205(c), 219, 220, 240 1580, 1583, 2861, 5521, 6653, 8420{e) and 8500, Fish and Game Code; and Sections 36700{e), 36710{e), 36725(a) and 36725(e), Public Resources Code.