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HomeMy WebLinkAboutFG2Commissioners Jirn Kellogg, President Discovery Bay Michael Sutton, Vice President Monterey Daniel W. Richards, Member Upland Richard Rogers, Member Santa Barbara .lack Baylis, Member Los Angeles October 24, 2012 SPATE OF CALIFORNIA Edmund G. Brown Jr., Governor Fish and Game Commission ~'ayo TO ALL AFFECTED AND INTERESTED PARTIES: 5onke Mastrup, Executive Director 1416 Ninth Street, Room 1320 Sacramento, CA 95814 (916)653-4899 (916) 653-5040 Fax www.fgc.ca.gov ~~~$ ocr z s zofz ~~~ This is to provide you with a copy of the notice of proposed regulatory action resulting from the Commission's February 2, 2012, meeting, when it made a finding pursuant to Section 2075.5, Fish and Game Code, that listing the southern mountain yellow-legged frog (Rana muscosa) as Endangered under CESA is warranted; and listing the Sierra Nevada yellow-legged frog (Rana sierrae) as Threatened under CESA is warranted. The notice of proposed regulatory action will be published in the California Regulatory Notice Register on Oc#ober 26, 2012. Please note the date of the public hearing related to this matter and associated deadlines for receipt of written comments. Mr. Safford Lehr, Fisheries Branch, Department of Fish and Game, phone (996) 327-8840, has been designated to respond to questions on the substance of the proposed regulations. Sincerely, heri Tiemann Staff Services Analyst Attachment ~,:~: , ~r a ,r ~ ~ ! L,- ,!i? t,i= TITLE 14. Fish and Game Commission Notice of Proposed Changes in Regulations NOTICE IS HEREBY GIVEN #hat the Fish and Game Commission {Commission), pursuant to the authority vested by sections 2070 and 2075.5 of the Fish and Game Code and to implement, interpret or make specific sections 1755, 2055, 2062, 2067, 2070, 2074.6, 2075.5, 2077, 2080, 2081 and 2835, of the Fish and Game Code, proposes to amend Section 670.5, Title 14, California Code of Regulations, relating to Animals of California Declared to Be Endangered or Threatened. Informative DigestlPolicy Statement Overview The Department of Fish and Game recommends that the Commission amend subsection (a}{3) of Section 670.5 0# Title 14, CCR, to add the southern mountain yellow-legged frog {Rana muscosa) to the list of endangered animals, and amend subsection (b)(3) of Section 670.5 of Title 14, CCR, to add the Sierra Nevada mountain yellow-legged frog {Rana sierrae} to the list of threatened animals. In making the recommendation to list the mountain yellow-legged frog (Rana muscosa and Rana sierrae) pursuant to CESA, the Department identified the following primary threats: 1 }introduction and persistence of non-native trout populations to habitats occupied by mountain yellow-legged frog; 2} introduction and persistence of the amphibian disease chytridiomycosis; and 3) catastrophic natural events impacting relictual southern California populations of southern mountain yellow-legged frog {Rana muscosa). More detail about the current status of the mountain yellow-legged frog (Rana muscosa and Rana sien-ae} can be found in the "Report to the California Fish and Game Commission, "A Status Review of the Mountain Yellow-Legged Frog (Rana muscosa and Rana sierrae)" (Department of Fish and Game, November 28, 2011). The proposed regulation will benefit the environment by protecting the southern mountain yellow-legged frog (Rana muscosa} as an endangered species and the Sierra Nevada yellow- legged frog (Rana sierrae) as a threatened species. The Commission does not anticipate any non-monetary benefits to worker safety, the prevention of discrimination, the promotion of fairness or social equity, or the increase in openness and transparency in business and government. The proposed regulations are neither inconsistent nor incompatible with existing state regulations. No other state entity has the authority to list threatened and endangered species. NOTICE IS GIVEN that any person interested may present statements, orally or in writing, relevant to this action at a hearing to be held at the Hilton San Diego-Mission Valley, 901 Camino del Rio South, San Diego, California, on Wednesday, December 12, 2012 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 fax at (916} 653-5040, or by a-mail to FGC(a)fgc.ca.goy. Written comments mailed, faxed or e-mailed to the Commission ofFce, must be received before 5:00 p.m. on December 7, 2012. All comments must be received no later than December 12, 2012, at the hearing in San Diego, CA. 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 fife and available for public review from the agency representative, Sonke Mastrup, Executive Director, Fish and Game Commission, 1416 Ninth Street, Box 944209; Sacramento, California 94244-2D90, phone (916} 653-4899. Please direct -1- requests for the above mentioned documents and inquiries concerning the regulatory process to Sonke Mastrup or Sheri Tiemann at the preceding address or phone number. Stafford Lehr, Fisheries Branch, Department of Fish and Game, phone (916) 327-884fl, 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:llwww.fgc.ca.gov. Availability of Modified Text I# the regulations adopted by the Commission differ from but are sufficiently related to the action proposed, they will be available to the public for at least 15 days prior to the. date of adoption. Any person interested may obtain a copy of said regulations prior to the date of adoption by contacting the agency representative named herein. if the regulatory proposal is adopted, the final statement of reasons may be obtained from the address above when it has been received from the agency program staff. Impact of Res~ulatorv ActionlResults of the Economic Impact An_a_lysis The potential for significant statewide adverse economic impacts that rrright result from the proposed regulatory action has been assessed, and the following initial determinations rela#ive to the required statutory categories have been made: . {a) Significant Statewide Adverse Economic Impact Directly Affecting Business, Including the Ability of California Businesses to Compete with Businesses in Other States: While the California Endangered Species Act {CESA} does not specifically prohibit the consideration ofi economic impact in determining if listing is warranted, the Attorney General's Office has consistently advised the Commission that it should not consider economic impact in making a finding on listing. This is founded in the concept that CESA was drafted in the image of the federal Endangered Species Act. The federal act specifically prohibits consideration of economic impact during the listing process. Listing a species pursuant to CESA is a multi-stage process. During one stage, the Commission must make a finding on whether or not the petitioned action is warranted. By statute, once the Commission has made a finding that the petitioned action is warranted, it must initiate a rulemaking process to make a corresponding regulatory change. To accomplish this next stage, the Commission is required to follow the. Administrative Procedure Act (APA). The provisions of the APA, specifically sections 11346.3 and 11346.5 of the Government Code, require an analysis of the economic impact of the proposed regulatory action. While Section 1134fi.3 requires an analysis of economic impact on businesses and private persons, it also contains a subdivision (a) which provides that agencies shall satisfy economic assessment requirements only to the extent that the requirements do not conflict with other state laws. .. Since the finding portion of CESA is silent to consideration of economic impact, it is possible that subdivision {a} of Section 11346.3 does not exclude the requirement for economic impact analysis. While the Commission does not believe this is the case, an abbreviated analysis of the likely economic impact of the proposed regulation change on businesses and private individuals is provided. The intent of this analysis is to provide disclosure, the basic premise of the APA process_ The Commission believes that this -2- analysis fully meets the intent and language of both statutory programs. Designation of the southern mountain yellow-legged frog {Rana muscosa) and the Sierra Nevada mountain yellow-legged frog (Rana sierrae) as endangered and threatened, respectively, will subject it to the provisions of CESA. CESA prohibits take and possession except as may be permitted by the Department. Listed status is not expected to result in any significant adverse economic effect on small business or significant cost to private or public entities undertaking activities subject to the California Environmental Quality Act (CEQA). Prior to making any discretionary approval of a project subject to CEQA, public agencies are to consider de facto endangered species to be subject to the same requirements under CEQA as though they were already listed by the Commission in Sections 670.2 or 670.5 of Title 14, CCR {CEQA Guidelines, Section 15380). All populations of mountain yellow-legged frog have qualified for protection under CEQA Guidelines Section 15380 since its designation by the Department in 1994 as a species of special concern. Required mitigation as a result of public agency compliance with CEQA, whether or not the species is listed by the Commission, may increase the cost of a project. Such casts may include, but are not limited to, purchasing off-site habitat, development and implementation of management plans, establishing new populations, installation of protective devices such as fencing, protection of additional habitat, and long-term monitoring of mitigation sites. Public agencies may also require additional actions should the mitigation measures fail, resulting in added expenditures by the project proponent. If the mitigation measures required by the public agency do no# minimize and fully mitigate project effects on a listed species as required for the Department to issue an incidental take permit pursuant to CESA, listing could increase business costs by requiring measures beyond those required by CEQA. (b} Impact on the Creation or Elimination of Jabs within the State, the Creation of New Businesses or the Elimination of Existing Businesses, or the Expansion of Businesses in California; Benefits of the Regulation to the Health and Welfare of California Residents, Worker Safety, and the State's Environment:: The Commission does not anticipate any impacts on the crea#ion or elimination of jobs, the creation of new business, the elimination of existing businesses or the expansion of businesses in California. ..... The Commission..doeshot arlti.cipate. benefits_to the heal#h.and. welfare of California residents or to worker safety. The Commission anticipates benefits to the environment by the protection of the mountain yellow-legged frog {Rana muscosa and Rana sierrae). (c) Cost Impacts on a Representative Private Person or Business: ^esignation of threatened or endangered status, per se, would not necessarily result in any significant cost to private persons or entities undertaking activities subject to CEQA. CEQA presently requires private applicants undertaking projects subject to CEQA to consider de facto endangered (or threatened} and rare species to be subject to the same protections under CEQA as though they are already listed by the Commission in Sections 670.2 or 670.5 of Title 14, CCR {CEQA Guidelines Section 15380}. Any added costs should be more than offset by savings that would be realized through -3- the information consultation process available to private applicants under CESA. The process would allow conflicts to be resolved at an early stage in project planning and development, thereby avoiding conflicts later in the CEQA review process, which would be more costly and difficult to resolve. (d} Casts or Savings to State Agencies or Costs/Savings in Federal f=unding to the State: None. (e} Nondiscretionary CostslSavings~to Local Agencies: None. {f) Programs Mandated on Local Agencies or School Districts: None. {g} Casts 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 adop#ion 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 far 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 Dated: October 16, 2012 Sonke Mastrup Executive Director 4