HomeMy WebLinkAboutFish and Game 3-16-10 COMMISSIONERS ARNOLD SCHWARZENEGGER JOHN CARLSON,JR.
Jim Kellogg,president EXECUTIVE DIRECTOR
Discovery Bay 1416 Ninth Street
Richard Rogers,Vice President
Sox 944209
Carpinteria Sacramento,C4 94244-2090
Michael Sutton,Member (916)653-4899
Monteerere y � (976)b53-5040 Fax
Daniel W.Richards,Member l'
Upland Governor fgc@fgc.ca.gov
Don Benninghoven,Member
Santa Barbara
STATE OF CALIFORNIA BOARD OF SUPERVISORS
Fish and Game Commission
R 2 , 20 4,0
March 16, 2010 CRCViLLE,CALIFORNIA
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 March 3, 2010, meeting, when it made a finding pursuant to
Section 2075.5, Fish and Game Code, that California tiger salamander (Ambystoma
calffomiense) warrants listing to threatened species status. The notice of proposed
regulatory action will be published in the California Regulatory Notice Register on
March 19, 2010.
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-
3555, has been designated to respond to questions on the substance of the
proposed regulations.
Sincerely,
V
heti Tiemann
Staff Services Analyst
r
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, 2074.6, 2075.5, 2077, 2080,
2081 and 2835, 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 Digest/Policy Statement Overview
The Department of Fish and Game recommends that the Commission amend subsection (b)(3)
of Section 670.5 of Title 14, CCR, to add the California tiger salamander(Ambystoma
califomiense)to the list of threatened animals.
In making the recommendation to list the California tiger salamander pursuant to CESA, the
Department identified the following primary threats: 1) continued and long-term habitat
loss/conversion and fragmentation (the California tiger salamander requires both aquatic and
upland habitats; anything that impedes movements such as roads or other barriers restricts the
salamander from moving between the two habitats); 2) hybridization with introduced non-native
tiger salamanders over the past 60 years, resulting in decreased population and distribution of
genetically pure" native tiger salamanders; 3) increased predation by, and competition with,
other non-native species- particularly fishes and amphibians. More detail about the current
status of the California tiger salamander can be found in the`Report to the California Fish and
Game Commission, "A Status Review of the California tiger salamander(Ambystoma
calrfomiense)n (Department of Fish and Game, January 11, 2010;
htt ://www_df .ca. ov/wildlife/non amel ublications
NOTICE 1S ALSO GIVEN that any person interested may present statements, orally or in writing,
relevant to this action at a hearing to be held at the Stockton Rod and Gun Club, 3120 Monte
Diablo Avenue, Stockton, California, on Wednesday,May 5, 2010 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 April 30, 2010 at the address given below, or by fax at(916) 653-
5040, or by e-mail to FGC Agg.ca.gov. Written comments mailed, faxed or e-mailed to the
Commission office, must be received before 5:00 p.m. on May 3, 2010. All comments must be
received no later than May S, 2010 at the hearing in Stockton, 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
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 t1he addre,�s above. Notice of the proposed action shall be posted on the Fish and Game
Commission website at http://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 Regulatory 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:
Although (CESA) statutes do not specifically prohibit the consideration of 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 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 statue, 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 section 11346.3 and 11346.5 of
the Government Code, require an analysis of the economic impact of the
proposed regulatory action. While Section 11346.3 requires an analysis
of economic impact of 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.
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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 business
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.
Designation of the California tiger salamander as threatened will subject it
to the provisions of CESA. This act prohibits take and possession except
as may be permitted by the Department.
Threatened status 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 the California Environmental
Quality Act (CEQA). The CEQA requires local governments and private
applicants undertaking projects subject to the CEQA to consider de facto
endangered species to be subject to the same requirements under the
CEQA as though they were already listed by the Commission in Section
6702 (CEQA Guidelines, Section 15380). California tiger salamander
has qualified for protection under the CEQA Guidelines Section 15380
since its designation by the Department in 1994 as a species of special
concern and the US Fish and Wildlife Service in 2004 as threatened
throughout its range.
Required mitigation as a result of lead agency actions under the CEQA,
whether or not the species is listed by the Commission, may increase the
cost of a project. Such costs 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. Lead agencies may also require additional
actions should the mitigation measures fail, resulting in added
expenditures by the proponent. If the mitigation measures required by the
CEQA lead agency do not minimize and fully mitigate'to the standards of
CESA, listing could increase business costs by requiring measures
beyond those required by the CEQA.
(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:
No significant impact.
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(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.
Designation 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 Section 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 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) 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).
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: March 9, 2010 Executive Director
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