HomeMy WebLinkAboutFish and Game Notice of Proposed Emergency Actions - low flow closures to fishing due to drought conditions Commissioners STATE OF CALIFORNIA
Michael Sutton,President Edmund G. Brown Jr., Governor Sonke Mastrup,Executive Director
Monterey 1416 Ninth Street, Room 1320
Jack Baylis,Vice President Sacramento,CA 95814
Los Angeles Fish and Game Commission (916)653-4899
Jim Kellogg,Member (916)653-5040 Fax
Discovery Bay �„"r"rq-`0414,N
Richard Rogers,Member www.fgc.ca.gov
Santa Barbara
Jacque Hostler-Carmesin,Member _
McKinleyville -' "`"tea" OFSU�S
d 4YBOARD
0 ,]tlJ f0
FEB 1 0 2014
February 6, 2014 °ROW E,CALIFORNIA
NOTICE OF PROPOSED EMERGENCY ACTION
Low Flow Closures to Fishing Due to Drought Conditions
Pursuant to the requirements of Government Code section 11346.1(a)(1), the Fish and
Game Commission (FGC) is providing notice of proposed emergency action with regards 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 the OAL, the 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, e-mail or fax, relevant to the proposed emergency regulatory
action. Written comments submitted via U.S. mail, e-mail or fax must be received at the
OAL within five days after FGC submits the emergency regulations to the OAL for review.
Please reference submitted comments as regarding "Low Flow Closures to Fishing Due to
Drought Conditions" addressed to:
Mailing Address: Reference Attorney California State
Office of Administrative Law Fish and Game Commission
300 Capitol Mall, Suite 1250 Attn: Jon Snellstrom
Sacramento, CA 95814 1416 Ninth Street, Rm. 1320
Sacramento, CA 95814
E-mail Address: stafMa oal.ca.gov fgc(a fgc.ca.gov
Fax No.: 916-323-6826 916-653-5040
For the status of the FGC submittal to the OAL for review, and the end of the five-day
written submittal period, please consult the Web site of the OAL at http://www.oal.ca.qov
under the heading "Emergency Regulations."
rtotudc , C(`'dLyr, P16 (
CALIFORNIA FISH AND GAME COMMISSION
STATEMENT OF PROPOSED EMERGENCY REGULATORY ACTION
Emergency Action to
Amend Subsection (e)(2) of Section 7.00,
Subsections (b)(5) and (b)(155) of Section 7.50,
and Subsections (a) and (b) of Section 8.00
Title 14, California Code of Regulations
Re: Low Flow Closures to Fishing Due to Drought Conditions
Statement of Facts Constituting the Need for Emergency Regulatory Action
The long range precipitation forecast for most of California predicts below normal
rainfall through at least April 30, 2014. California and parts of western Oregon
witnessed their driest year on record in 2013, according to statistics from the
National Weather Service. As a result, 85 percent of California was categorized
in severe drought. According to the California Department of Water Resources,
many lakes and reservoirs are less than 40 percent capacity as of December 31,
including Lake Shasta (37 percent), Folsom Lake (19 percent), Lake Oroville (36
percent) and San Luis Reservoir (30 percent).
Many coastal streams from Point Conception to the California/Oregon Border
remain in extreme low flow conditions with their current low flow fishing
restrictions ending soon. The low flow conditions have prevented steelhead and
threatened and endangered salmon from migrating beyond the estuary and lower
reaches, causing them to congregate in any available large body of water.
These fish will be subject to lawful and unlawful fishing techniques, if the current
low flow fishing restrictions are lifted. These low flow conditions have also
resulted in many estuaries being blocked by sand bars effectively stopping any
fish from leaving the river system.
The Department of Fish and Wildlife (Department) has made observations on the
American River of newly hatched Chinook salmon fry emerging from moist gravel
with no surrounding water, massive predation by birds on newly hatched fry and
young-of-the-year, and large areas of exposed gravel and disconnected
tributaries due to reduced releases from Nimbus Dam. Many of the tributaries to
the Russian River have serious fish passage concerns due to reduced releases
from the Coyote Dam. There have been multiple announcements from water
districts and local municipalities within the American and Russian river
watersheds of mandatory water restrictions due to these low river flows and no
rain predicted in the foreseeable future.
On January 16, 2014, the U.S. Department of Agriculture (USDA) designated
portions of 11 drought-ridden western and central states as primary natural
disaster areas, highlighting the financial strain the lack of rain is likely to bring to
farmers in those regions. The federal disaster declaration includes counties in
Colorado, New Mexico, Nevada, Kansas, Texas, Utah, Arkansas, Hawaii, Idaho,
Oklahoma and California. While storms have dumped rain and snow in the East,
1
droughts are persisting or intensifying in the West, according to officials
connected with the U.S. Drought Monitor, an index on which the USDA's
declarations are based. A ridge of high pressure is to blame for keeping storms
off the Pacific coast and guiding them to the East. Poor snowpack is threatening
regions dependent on major western rivers.
On January 17, 2014, Governor Edmund G. Brown Jr. proclaimed a State of
Emergency for California and directed state officials to take all necessary actions
to prepare for drought conditions with California facing water shortfalls in the
driest year in recorded state history. The Department was ordered to evaluate
and manage the changing impacts of drought on threatened and endangered
species and species of special concern, and develop contingency plans for state
Wildlife Areas and Ecological Reserves to manage reduced water resources in
the public interest. The Department was also ordered to work with the Fish and
Game Commission, using the best available science, to determine whether
restricting fishing in certain areas will become necessary and prudent as drought
conditions persist.
In response to the above federal and state actions, the Department has
determined that current historically low stream flows are preventing the
movement of migrating anadromous fish, primarily wild steelhead trout. Stream
flows in many systems are inadequate to allow passage of spawning adults,
increasing their vulnerability to mortality from predation, physiological stress, and
fishing. Furthermore, survival of eggs and juvenile fish in these systems over the
coming months is likely to be extremely low as the current drought conditions
continue.
The historically low stream flows have also concentrated adult wild steelhead into
shrinking pools of cold water making them easy prey for poachers, illegal angling
methods such as snagging, increased hooking mortality due to legal catch and
release angling targeting hatchery steelhead, as well as other human-related
disturbances within their spawning streams. When coupled with drought-related
environmental stressors, such as high water temperature, poor water quality, and
severely reduced suitable habitat, these human stressors can seriously affect
reproductive success and adult survival rates.
The Department believes that, under these extreme conditions, it is prudent to
temporarily close these streams in order to eliminate angling as an additional
stressor on steelhead populations. Stream closures will also serve to deter
poaching and snagging activity since all angling will be prohibited. These actions
are necessary to conserve wild steelhead populations by protecting as many
adult fish as possible.
Subsection 7.00(e) provides the seasons, size, and bag and possession limits for
trout and salmon for waters in the South Central District which are not otherwise
specified in Section 7.50. Subsections 7.50(b)(5) and (b)(155) provide the
season, size, bag and possession limits for trout and salmon in the American
River and Russian River, respectively. Section 8.00 provides fishing restrictions
(closures) for specified rivers and streams during low flow conditions.
2
The following proposed regulatory changes would implement the emergency
closure until April 30, 2014 of selected streams to increase survival of adult wild
steelhead by reducing hooking-related mortality.
Amend American River, subsections (b)(5)(A)-(C) of Section 7.50.
Title 14, CCR. Closure of the American River from Nimbus Dam to the
SMUD power line crossing at the southwest boundary of Ancil Hoffman
Park until April 30.
Amend Russian River, (b)(155)(A) of Section 7.50. Title 14, CCR.
Closure of the Russian River main stem below the confluence of the
East Branch of the Russian River until April 30.
Amend Low Flow Restrictions, subsections (a) and (b) of Section 8.00,
Title 14, CCR. Extension of the low flow fishing restrictions ending
date for the North Coast and Central Coast areas (above San
Francisco Bay) until April 30.
Amend South Central District Regulations, subsection (e)(2) of Section
7.00, Title 14, CCR. Close all portions of any coastal stream in
Monterey, San Francisco, San Luis Obispo, San Mateo, Santa Clara
and Santa Cruz counties, west of any Highway 1 bridge until April 30.
Additional streams closures are currently being evaluated by the Department for
future actions as needed.
II. 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:
There may be a reduction in Steelhead report cards that provide revenue
specific to the monitoring and study of the fishery. For the period of the
closure, estimates of loss range from 3,750 to 15,000 cards which could
result in a revenue loss to the Department of Fish and Wildlife of$24,375
to $97,500.
(b) Nondiscretionary Costs/Savings to Local Agencies:
None.
3
(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.
III. Authority and Reference
The Fish and Game Commission proposes this emergency action pursuant to the
authority vested by sections 200, 202, 205, 215, 220, 240, 315, and 316.5 of the
Fish and Game Code and to implement, interpret, or make specific sections 200,
202, 205, 206, 215, 220, and 316.5 of said Code.
IV. Section 240 Finding
Pursuant to Section 240 of the Fish and Game Code, the Commission made the
finding that the adoption of this regulation is necessary for the immediate
conservation, preservation, or protection of birds, mammals, reptiles, or fish,
including, but not limited to, any nests or eggs thereof.
•
4
Informative Digest (Plain English Overview)
On January 16, 2014, the U.S. Department of Agriculture (USDA) designated portions
of 11 drought-ridden western and central states as primary natural disaster areas,
highlighting the financial strain the lack of rain is likely to bring to farmers in those
regions. The federal disaster declaration includes counties in Colorado, New Mexico,
Nevada, Kansas, Texas, Utah, Arkansas, Hawaii, Idaho, Oklahoma and California.
Poor snowpack is threatening regions dependent on major western rivers.
On January 17, 2014, Governor Edmund G. Brown Jr. proclaimed a State of Emergency
for California and directed state officials to take all necessary actions to prepare for
drought conditions with California facing water shortfalls in the driest year in recorded
state history. The Department of Fish and Wildlife (Department) was ordered to
evaluate and manage the changing impacts of drought on threatened and endangered
species and species of special concern, and develop contingency plans for state
Wildlife Areas and Ecological Reserves to manage reduced water resources in the
public interest. The Department was also ordered to work with the Fish and Game
Commission, using the best available science, to determine whether restricting fishing in
certain areas will become necessary and prudent as drought conditions persist.
In response to the above federal and state actions, the Department has determined that
the historically low stream flows will prevent the movement of migrating anadromous
fish, primarily wild steelhead trout. Stream flows in many systems are inadequate to
allow passage of spawning adults, increasing their vulnerability to mortality from
predation, physiological stress, and fishing. Furthermore, survival of eggs and juvenile
fish in these systems over the coming months is likely to be extremely low as the
current drought conditions continue. The Department believes that, under these
extreme conditions, it is prudent to temporarily close these streams in order to eliminate
angling as an additional stressor on steelhead populations. Stream closures will also
serve to deter poaching and snagging activity since all angling will be prohibited. These
actions are necessary to conserve wild steelhead populations by protecting as many
adult fish as possible.
Subsection 7.00(e) provides the seasons, size, and bag and possession limits for trout
and salmon for waters in the South Central District which are not otherwise specified in
Section 7.50. Subsections 7.50(b)(5) and (b)(155) provide the season, size, bag and
possession limits for trout and salmon in the American River and Russian River,
respectively. Section 8.00 provides fishing restrictions (closures) for specified rivers
and streams during low flow conditions.
The following proposed regulatory changes would implement the emergency closure
until April 30, 2014 of selected streams to increase survival of adult wild steelhead by
reducing hooking-related mortality.
Amend American River, subsections (b)(5)(A)-(C) of Section 7.50. Title 14,
CCR. Closure of the American River from Nimbus Dam to the SMUD power
line crossing at the southwest boundary of Ancil Hoffman Park until April 30.
5
Amend Russian River, (b)(155)(A) of Section 7.50, Title 14, CCR. Closure of
the Russian River main stem below the confluence of the East Branch of the
Russian River, until April 30.
Amend Low Flow Restrictions, subsections (a) and (b) of Section 8.00,
Title 14, CCR. Extension of the low flow restrictions ending date for the North
Coast and Central Coast areas (above San Francisco Bay) until April 30.
Amend South Central District Regulations, subsection (e)(2) of Section 7.00,
Title 14, CCR. Close all portions of any coastal stream in Monterey, San
Francisco, San Luis Obispo, San Mateo, Santa Clara and Santa Cruz
counties, west of any Highway 1 bridge until April 30.
Additional streams closures are currently being evaluated by the Department for future
actions as needed.
Benefits: The proposed regulation will provide benefits to the environment in the
conservation and preservation of wild steelhead populations.
The proposed regulations are neither inconsistent nor incompatible with existing State
regulations. The Legislature has delegated authority to the Commission to promulgate
sport fishing regulations (sections 200, 202, 205, 315, and 316.5, Fish and Game
Code).
6
Regulatory Language
Subsection (e)(2) of Section 7.00, Title 14, CCR is amended to read:
§7.00. District General Regulations.
Unless otherwise provided, waters shown as open to trout and salmon fishing in
subsections (a) through (g) below, are open to fishing for other species. Gear
restrictions listed in this section apply to the take of all species of fish unless otherwise
noted. Every body of water listed in subsections (a) through (g) of Section 7.00 (below)
is closed to all fishing, except during the open season as shown. Unless otherwise
provided, waters closed to trout and salmon fishing are closed to fishing for all other
species, except that these closures do not apply to fishing for amphibians (see Section
5.05), freshwater clams(see Section 5.20), crayfish (see Section 5.35), and lamprey
(see Section 5.40), using legal fishing methods other than hook-and-line fishing, and
saltwater clams, crabs, ghost shrimp, and blue mud shrimp (see Ocean Regulations
Booklet Sections 29.20 to 29.87). Crabs may only be taken using hoop nets or by hand,
and Dungeness crab may only be taken within the North Coast District and Sonoma and
Mendocino counties.
Daily bag and possession limits, unless otherwise provided, mean the total number of
trout and salmon in combination. Unless otherwise provided, no more than one daily
bag limit may be possessed. Coho (silver) salmon may not be taken in any of the waters
of the State, except in Lake Oroville and Oroville-Thermalito Complex (Diversion Pool,
Forebay, and Afterbay) and the Feather River from the Diversion Pool Dam to the Fish
Barrier Dam. Incidentally hooked Coho (silver) salmon, except those in Lake Oroville
and Oroville-Thermalito Complex (Diversion Pool, Forebay, and Afterbay) and the
Feather River from the Diversion Pool Dam to the Fish Barrier Dam, must be
immediately released unharmed to the waters where they are hooked. In waters where
the bag limit for trout or salmon is zero, fish for which the bag limit is zero must be
released unharmed, and should not be removed from the water.
These waters may also be subject to restrictions on fishing methods and gear (sections
2.00 through 2.45), fishing hours (section 3.00), and the use of bait (sections 4.00
through 4.30).
Daily Bag
and
Possession
District/Water Open Season Limit
[text for subsections (a) through (d) unchanged]
(e) South Central District
(1) All lakes and reservoirs except those listed by All year 5
name in the Special Regulations.
(2) That portion of any stream west of any Highway Dec. 1 through Mar, 2 hatchery trout
1 bridge except those listed by name in the special 7jOAL to insert the or hatchery
regulations. day before the steelhead*
effective date', but 4 hatchery trout
only on Sat., Sun., or hatchery
1
Daily Bag
and
Possession
District/Water Open Season Limit
Wed., legal holidays steelhead*
and opening and in possession.
closing days. Only Closed to the
barbless hooks may take of salmon.
be used.
Closed to all fishing
from COAL to insert
effective date'
through Apr. 30.
(3) All streams in Alameda, Contra Costa, and Last Saturday in Apr.
Santa Clara Counties except those listed by name through Nov. 15
in the Special Regulations.
(4) All other streams and portions of streams Closed to all fishing
except those listed in subsection (e)(2) above or by all year
name in the Special Regulations.
[text for subsections (t) through (g) unchanged]
Note: Authority cited: Sections 200, 202, 205, 220 and 240, Fish and Game Code.
Reference: Sections 200, 205 and 206, Fish and Game Code.
2
Subsections (b)(5) and (b)(155) of Section 7.50, Title 14, CCR are amended to read:
§7.50. Alphabetical List of Waters with Special Fishing Regulations.
[Subsection (a) unchanged]
(b) Daily Bag
and
Possession
Body of Water Open Season and Special Regulations Limit
[subsections (b)(1) through (4) unchanged]
(5)American River(Sacramento Co.)
(A) From Nimbus Dam to the Hazel Closed to all fishing from fOAL to insert effective
Avenue bridge piers. datel through April 30.
Jan. 1 to FOAL to insert the day before the 2 hatchery
effective date] and May 1 through July 15. trout or
hatchery
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
July 16 through Dec. 31. 2 hatchery
trout or
hatchery
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
2 Chinook
salmon
(B) From Hazel Avenue bridge piers Closed to all fishing from FOAL to insert effective
to the U.S. Geological Survey gauging date] through April 30.
station cable crossing about 300
yards downstream from the Nimbus
Hatchery fish rack site.
Jan. 1 to FOAL to insert the day before the 2 hatchery
effective date] and May 1 through July 15. Only trout or
barbless hooks may be used. hatchery
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
July 16 through Aug. 15. Only barbless hooks 2 hatchery
may be used. trout or
hatchery
3
Daily Bag
and
Possession
Body of Water Open Season and Special Regulations Limit
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession.
2 Chinook
salmon
(C) From the U.S. Geological Survey Closed to all fishing from FOAL to insert effective
gauging station cable crossing about datel through April 30.
300 yards down-
stream from the Nimbus Hatchery fish
rack site to the SMUD power line
crossing at the southwest boundary of
Ancil Hoffman Park.
Jan. 1 to FOAL to insert the day before the 2 hatchery
effective datel and May 1 through July 15. Only trout or
barbless hooks may be used. hatchery
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
July 16 through Oct. 31. Only barbless hooks 2 hatchery
may be used. trout or
hatchery
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
2 Chinook
salmon
(D) From the SMUD power line Jan. 1 through July 15. 2 hatchery
crossing at the southwest boundary of trout or
Ancil Hoffman Park downstream to hatchery
the Jibboom Street bridge. steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
July 16 through Dec. 31. 2 hatchery
trout or
hatchery
steelhead**
4 hatchery
trout or
4
Daily Bag
and
Possession
Body of Water Open Season and Special Regulations Limit
hatchery
steelhead**
in possession
2 Chinook
salmon
(E) From the Jibboom Street bridge to Jan. 1 through July 15. 2 hatchery
the mouth. trout or
hatchery
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
July 16 through Dec. 16. 2 hatchery
trout or
hatchery
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
2 Chinook
salmon
Dec. 17 through Dec. 31. 2 hatchery
trout or
hatchery
steelhead**
4 hatchery
trout or
hatchery
steelhead**
in possession
[subsections (b)(6) through (154) unchanged]
(155) Russian River and tributaries
(Sonoma and Mendocino Cos.). Also
see Section 8.00(b).
(A) Russian River main stem below All year. Only artificial lures with barbless hooks 2 hatchery
the confluence of the East Branch may be used from Apr. 1Mav 1 through Oct. 31. trout or
Russian River. (See also Mendocino Only barbless hooks may be used from Nov. 1 hatchery
Lake tributaries (7.50(b)(116)). through Mar. 31JOAL to insert the day before the steelhead**4
effective datel. hatchery trout
or hatchery
steelhead** in
possession
Closed to all fishing from FOAL to insert effective
datel through Apr. 30.
5
Daily Bag
and
Possession
Body of Water Open Season and Special Regulations Limit
(B) Russian River main stem above Closed to all fishing all year.
the confluence of the East Branch and
all River tributaries. (See Laguna de
Santa Rosa 7.50(b)(93) and Santa
Rosa Creek (7.50(b)(172)for non-
salmonids only.)
(C) Russian River within 250 feet of Closed to all fishing all year.
the Healdsburg Memorial Dam.
[subsections (b)(156) through (212) unchanged]
* Wild Chinook salmon are those not showing a healed adipose fin clip and not showing
a healed left ventral fin clip.
**Hatchery trout or steelhead in anadromous waters are those showing a healed
adipose fin clip (adipose fin is absent). Unless otherwise provided, all other trout and
steelhead must be immediately released. Wild trout or steelhead are those not showing
a healed adipose fin clip (adipose fin is present).
Note: Authority cited: Sections 200, 202, 205, 215, 220, 240, 315 and 316.5, Fish and
Game Code. Reference: Sections 200, 202, 205, 206, 215 and 316.5, Fish and Game
Code.
6