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HomeMy WebLinkAboutFish & Game - American Peregrine Falcon 6-15-09 COMMISSIONERS Cindy Gustafson,President ARNOLD SCHWARZENEGGER JOAN CARESON,JR Tahoe City EXECUTIVE DIRECTOR Jim Kellogg,'Vice President = 'sa_ 1416 Ninth Street Concord - Box 944209 Richard Rogers,Member Sacramento,CA 94244-2090 Carpinteria _ = (916)6534899 Michael Sutton,Member (916)653-5040 Fax Monterey Governor fgc@fgc.ca.gov Daniel W.Richards,Member Upland STATE OF CALIFORNIA ){: QUA Fish and Game Commission ��vrsoRs JUS 192009 June 15, 2009 ``� V7CL1~' Cq�'FORIVIA TO ALL AFFECTED AND INTERESTED PARTIES: This is to provide you with a copy of the notice of proposed regulatory action resulting from the Commission's December 12, 2008, meeting, when it made a finding pursuant to Section 2075.5, Fish and Game Code, that American peregrine falcon (Falco peregrinus anatum) warrants delisting from the list of endangered species status. The notice of proposed regulatory action will be published in the California Regulatory Notice Register on June 19, 2009. Please note the date of the public hearing related to this matter and associated deadlines for receipt of written comments. Dr. Eric Loft, Wildlife Branch, Department of Fish and Game, phone (916) 445- 3655, has been designated to respond to questions on the substance of the proposed regulations, Sincerely, Sheri Tiemann Staff Services Analyst Attachment { AuGf 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 2070 and 2075.5 of the Fish and Game Code and to implement, interpret or make specific sections 1755, 2055, 2062, 2067, 2070, 2072.7, 2075.5, and 2077, of said 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 Dinest/Policy Statement Overview The Department of Fish and Game recommends that the Commission amend Subsection (a)(5) of Section 670.5 of Title 14, CCR, to delete the American peregrine falcon (Falco peregrinus anatum) from the list of endangered birds. In making the recommendation to delist the American peregrine falcon pursuant to CESA, the Department relied most heavily on the following information: 1) Current American peregrine falcon breeding range in California includes most of the known historic breeding range; 2)American peregrine falcon breeding population size has increased dramatically following State and federal listing as endangered and may have reached or even exceeded historical levels within California, as best as can be determined given the uncertainty of the historic population data; 3)The threat posed to the peregrine falcon nesting populations in California by organochlorine pesticide contamination has lessened due to the restrictions imposed on the use of such substances in the United States and Canada since the 1970s. However, "hot spots" remain in the State; these areas need further evaluation and monitoring as to their impact on peregrine recovery; 4) Recovery goals specific to California populations of peregrine falcons as established through the federal recovery pian for the Pacific States have been met for range and population size; productivity goals have been met at most, but not all, sites in California; 5) The U.S. Fish and Wildlife Service (Service) delisted the peregrine falcon from the federal endangered species list in 1999 and established a monitoring program, contingent on funding, to document breeding status of this species through the year"2015. A sub-set of 30 nest sites will be monitored in California every three years, providing current occupancy and productivity data for the State's peregrine population; 6) The captive breeding and reintroduction program established in the 1970s and continued through 1992 was highly successful in aiding the recovery of the peregrine in California; and 7) If delisted, the American peregrine falcon will remain a fully protected species under Fish and Game Code section 3511(b)(1). 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 Yolo Fliers Club Ballroom, 17980 County Road 94B, Woodland, Caiifomia, on Thursday, August 6, 2009, at 8:30 a.m., or as soon thereafter as the matter may be heard. It is requested, but not required, that written comments be submitted on or before July 30, 2009 at the address given below, or by fax at(916) 653-5040, or by e-mail to FGC(&_fac.ca._qov. Written comments mailed, faxed or e-mailed to the Commission office, must be received before 5:00 p.m. on August 4, 2009. All comments must be received no later than August 6, 2009 at the hearing in Woodland, 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 file and available for public review from the agency 1 representative, John Carlson, Jr., 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 John Carlson, Jr., or Sheri Tiemann at the preceding address or phone number. Dr. Eric Loft, Wildlife Branch, Department of Fish and Game, phone (916) 445-3555, 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 httpa/www.fgc.ca.gov. 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. 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 RegullatoEy Action 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 Business, Including the Ability of California Businesses to Compete with Businesses in Other States: The proposed action will not have a significant statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states. Although the statutes of the California Endangered Species Act (CESA) do not specifically prohibit the consideration of economic impact in determining if listing is warranted, the Office of the Attorney General 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 or delisting process. CESA is basically a two-stage process. During the first 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 second stage, the Commission follows the statutes of 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. 2 While Section 11346.3 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. In this regard, the provisions of CESA leading to a finding are in apparent conflict with Section 11346.3, which is activated by the rulemaking component of CESA. 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 analysis fully meets the intent and language of both statutory programs. Delisting of the American peregrine falcon will remove the species from the provisions of CESA. However,'this delisting action is not expected to result in any significant adverse economic effect on small business or significant cost to private persons or entities undertaking activities subject to CEQA because the American peregrine falcon will remain protected under additional provisions as described elsewhere in this document. (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: None. (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. Delisting the American peregrine falcon will not result in any significant cost to private persons or businesses undertaking activities subject to CEQA and may result in a cost savings to such persons and businesses. (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: 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). 3 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 or would be as effective and less burdensome to affected private persons than the proposed action. FISH AND GAME COMMISSION John Carlson, Jr. Dated: June 9, 2009 Executive Director 4