HomeMy WebLinkAboutfish game2COMMISSIONERS
3irr- Kellogg, President EDMUND C. BROWN, JR 141G Ninth Street
Discovery bay Box 944149
Richard Rogers, Vice President Sacramento, CA 94244-2090
Moutecito ?fia:=
(91 G} 653-4899
Michael Sutton, Member - (91G} 653-5440 Far
Monterey
Daniel W. Richards, MerrEher fge@fgc.ca.gov
[}pland
Jack Baylis, Member
Governor
Las Angeles
STATE OF CALIFORNIA
Fish and Game Commission
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March 15, 2011 CROVf
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TO ALL AFFECTED AND INTERESTED PARTIES:
This is to provide you with a copy of the notice of proposed emergency regulatory
action relating to incidental take of Mountain yellow-legged frog.
Sincerely,
heri Tiemann
Staff Services Analyst
Attachments
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TITLE '14. Fish and Game Commission
Notice of Proposed Emergency Changes in Regulations
NOTICE IS HEREBY GIVEN that the Fish and Game Commission (Commission}, pursuant to
the authority vested by sections 200, 202, 205, 240, and 2084, of the Fish and Game Code
{FGC) and to implement, interpret or make specific sections 200, 202, 205, 240, 2080, 2084,
and 2055 of said Code, readapted Section 749.6, Title 14, California Code of Regulations
(CCR}, rela#ing to incidental take of mountain yellow-legged frog (Rana muscosa and Rana
sierrae) ("MYLF"} during candidacy period.
Informative DigestlPoiicy Statement Overview
The sections below describe laws relating to listing species under CESA, the effect of this
emergency regulation, a description of related federal law, and a policy statement overview.
A. Laws Related to the Emer enc Re ulation - Listin under CESA
Petition and Acceptance
Fish and Game Code section 2070 requires the Commission to establish a list of endangered
species and a list of threatened species. Any interested person may petition the Commission to
add a species to the endangered or #hreatened list by following the requirements in Fish and
Game Code sections 2072 and 2072.3. If a petition is not factually incomplete and is on the
appropriate form, it is forwarded to the Department of Fish and Game {Department) for
evaluation.
Fish and Game Code section 2073.5 sets out the process for accepting for further consideration
or rejecting a petition to list a species and, if the petition is accepted, a process for actually
determining whether listing of the species as threatened or endangered is ultimately warranted.
The first step toward petition acceptance involves a 90-day review of the petition by the
Department to determine whether the petition contains sufficient information to indicate that the
petitioned action may be warranted.- The Department prepares a report to the Commission that
recommends rejection or acceptance of the petition based on its evaluation.
Fish and Game Code section 2074.2 provides that, if the Commission finds that the petition
provides suffrcient information to indicate that the petitioned action may be warranted, the
petition is accepted for consideration and the species that is the subject of the petition becomes
a "candidate species" under CESA. CESA prohibits unauthorized take of a candidate species.
Fish and Game Cade section 86 states "take" means to hunt, pursue, catch, capture, or kill, or
attempt to hunt, pursue, catch, capture, or kill. Killing of a candidate, threatened, or endangered
species under CESA that is incidental to an otherwise lawful activity and not the primary purpose
of the activity constitutes take under sta#e law. {Department of Fish and Game v. Andersan-
Cottonwaod Irrigation District (1992} 8 Cal.App.4th 1554; see also Enviranmenta! Protection and
Information Center v. California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 507
(in the context of an !TP issued by the Department under CESA the California Supreme Court
stated, "'take' in this context means to catch, capture or kill").)
CESA's take prohibition applies to candidate species pursuant to Fish and Game Code section
2085 upon public notice by the Commission of its finding that sufficient information exists to
indicate the petitioned action may be warranted. Upon publication of such notice in the
California Regulatory Notice Register, take ofi candidate species is prohibited absent
authorization as provided in the Fish and Game Code. Fallowing such notice, all activities,
whether new ar ongoing, that cause incidental take of the candidate species are in violation of
CESA unless the take is authorized in regulations adopted by the Commission pursuant to Fish
and Game Code section 2084 or the Department authorizes the take through the issuance of an
ITP or other means available pursuant to the Fish and Game Code.
2. Status Review and Final Action an the Petition
The Commission's acceptance of a petition initiates a 12-month review of the species' status by
the Department, pursuant to Fish and Game Code section 2074.6. This status review helps to
determine whether the species should be listed as threatened or endangered. Unlike the
Department's initial evaluation, which focuses largely on the sufficiency of information submitted
in the petition, the 12-month status review involves a broader inquiry into and evaluation of
available information from other sources. The Commission is required to solicit data and
comments on the proposed listing soon after the petition is accepted, and the Department's
written status report must be based upon the best scientific information available.
Within 12 months of the petition's acceptance, the Department must provide the Commission a
written report that indicates whether the petitioned action is warranted. {Fish & G. Code, ~
2074.} The Commission must schedule the petition for final consideration at its next available
meeting after receiving the Department's report. (ld., § 2075.) ]n its final ac#ion on the petition,
the Commission is required to decide whether listing the species as threatened or endangered
"is warranted" or "is not warranted." (Id., § 2075.5.) If listing is not warranted in the
Commission's judgment, controlling authority directs the Commission to enter that finding in the
public record and the subject species is removed from the lis# of candidate species. (ld.,
§ 2075.5{1); Cal. Code Regs., tit. 14, §670.1, subd. (i}{2}.)
B. Effect of the Emergency Action
Section 749.6 of Title 14 of the California Code of Regulations would authorize and provide for
take of MYLF during its candidacy subject to the following terms and conditions:
{a} Take Authorization
The Commission authorizes the take of Mountain yellow-legged frog during the candidacy
period subject to the terms and conditions herein.
(1) Scientific, Education or Management Activities.
Take of Mountain yellow-legged frog incidental to scientific, education or management
activities is authorized.
(2) Scientific Collecting Activities.
Take of Mountain yellow-legged frog authorized by a scientific collecting permit issued by
the Department pursuant to California Code of Regulations, Title 14, section S50 or a
recovery permit issued by a federal wildlife agency pursuant to United States Code,
Title 16, section 1539(a}{1}(A) is authorized.
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(3} Actions to Protect, Restore, Conserve or Enhance.
Take of Mountain yellow-legged frog incidental to otherwise lawful activities initiated #o
protect, restore, conserve or enhance a'state or federally threatened or endangered
species and its habitat is authorized.
(4) Fish Hatchery and Stocking Activities.
Take of Mountain yellow-legged frog incidental to fish hatchery and related stacking
activities consistent with the project description and related mitigation measures
identified in the Department of Fish and Game (Department) and U.S. Fish & Wildlife
Service Hatchery and Stocking Program Joint Environmental Impact
ReportlEnvironmental Impact Statement {SCH. No. 2008082025), as certified by the
Department on January 11, 2010, is authorized.
(5) Wlldland Fire Response and Related Vegetation Management.
Take of Mountain yellow-legged frog incidental to otherwise lawful wildland fire
prevention, response and suppression activities, including related vegetation
management, is authorized.
(6) Water Storage and Conveyance Activities
Take of Mountain yellow-legged frog incidental to otherwise lawful water storage and
conveyance activities is authorized.
(7) Forest Practices and Timber Harvest.
Incidental take of Mountain yellow-legged frog is authorized for otherwise lawful timber
operations. For purposes of this authorization, an otherwise lawful timber operation shall
mean a timber operation authorized or otherwise permitted by the Z'Berg Nejedfy Forest
Practice Act (Pub. Resources Code, Section 4511 et seq.), the Forest Practice rules of
the Board of Forestry, which are found in Chapters 4, 4.5 and 10 of Title 14 of the
California Code of Regulations or other applicable taw. The Z'Berg Nejedfy Forest
Practice Act and Fores# Practice Rules can be found at the following website:
http:llwww.fire.ca.govlresource_mgtlresource_mgt forestpractice.php.
(b) Reporting.
Any person, individual, organization, or public agency for which incidental take of Mountain
yellow-legged frog is authorized pursuant to subdivision (a), shall report observations and
detections of Mountain yellow-legged frog, including take, to the Department of Fish and
Game on asemi-annual basis during the candidacy period. Observations, detections, and
take shall be reported pursuant to this subdivision to the Department of Fish and Game,
Fisheries Branch, Attn: Mountain yellow-legged frog observations, 830 S S#., Sacramento,
CA 95811, or by email submission to mylfdata@dfg.ca.gov. Information reported to the
Department pursuant to this subdivision shall include as available: a contact name; the date
and location (GPS coordinate preferred) of the observation; detection, or take; and details
regarding the animals} observed.
(c) Additions, Modifications or Revocation.
(1) Incidental take of Mountain yellow-legged frog from activities not addressed in this
section may be authorized during the candidacy period by the Commission pursuant to
3
Fish and Game Cade section 20$4, or by the Department on a case-by-case basis
pursuant to Fish and Game Code section 208.1, ar other authority provided by law.
{2} The Commission may modify or repeal this regula#ion in whole or in part, pursuant to law,
if it determines that any activity or project may cause jeopardy to the continued existence
of Mountain yellow-legged frog.
C. Existing, Comparable Federal Rectulations or Statutes
The Federal Endangered Species Act ("FESA"} (16 U.S.C. § 1531 .et seq.) includes a listing
process that is similar to the listing process under CESA, except that take of a candidate species
is not prohibited under FESA. The U.S. Fish & Wildlife Service ("Service") designated the
southern California population of MYLF (Rana muscasa) as a distinct population segment and
listed it as an endangered species under FESA on July 2, 2002. (67 Fed.Reg. 4.4382.) In
January 2003, the Service determined that listing the Sierra Nevada populations of MYLF {Rana
sierrae} as endangered was warranted, but precluded by other higher priority listing actions. {68
Fed.Reg. 2283.) MYLF (Rana sierrae) remains a candidate under FESA based on the
Sen-ice's "warranted but precluded" finding and take of the species under FESA is not currently
prohibited.
FESA Section 4{d) (16 U.S.C. § 1533, subd. (d}) is similar in some respects to Fish and Game.
Code section 2084. Section 4(d) authorizes the Service or the National Marine Fisheries
Service {NMFS) to issue protective regulations prohibiting the take of species listed as
threatened. These regulations, also called "4(d} rules," may include any or all of the prohibitions
that apply to protect endangered species and may include exceptions to those prohibitions. The
4(d} rules give the Service and NMFS the ability to craft comprehensive regulations to apply to
particular activities that may result in take of a threatened species in a manner similar to the
Commission's authority to prescribe terms and conditions pursuant to FGC section 2084 during
the species' candidacy period. Here, no 4(d) rules have been promulgated for MYLF (Rana
sierrae) because the "warranted but precluded" finding by the Service did not yet effectuate the
designation of MYLF (Rana sierrae) as a federally listed threatened or endangered species.
This emergency regulation does not provide FESA authorization'for take of MYLF (Rana
muscosa and Rana sierrae). To the extent a project will result in take of MYLF as defined by the
FESA, the project proponent is responsible for consulting with the Service to obtain the
appropriate take authorization.
D. Palicv Statement Overview
The objective of this emergency regulation is to allow specified activities to continue on an
interim basis, subject to the measures in the regulation designed to protect MYLF, pending final
action by the Commission under CESA related to the proposed listing. The Department's
evaluation of the species during the candidacy period wiU result in the status report described in
Section A.2 above. The status report provides the basis for the Department`s recommendation
to the Commission before the Commission takes final action on the petition and decides whether
the petitioned action is ar is not warranted.
The regulations as proposed are attached to this notice. Notice of the proposed action shall. be
posted on the Fish and Game Commission website at http:llwww.fgc.ca.gov.
Section 240 Findin
Pursuant to the authority vested in it by FGC Section 240 and for the reasons set Earth in the
attached "Statement of Emergency Action," the Commission expressly Ends that the adoption of
this regulation is necessary for the immediate conservation, preservation, or protection offish
and wildlife resources, and for the immediate preservation of the general welfare. The
Commission specifically finds that the adop#ion of #his regulation will allow activities that may
affect MYLF to continue during the candidacy period as Fong as those activities are conducted in
a manner consistent with the protections specified in this regulation.
Puhlic Comments on Pro ased Emer enc Re ulations
The Commission readopted this emergency regulation at its March 14, 2011 teleconference
meeting. It is anticipated that the emergency regulation will be filed with the Office of
Administrative Law (OAL} on or about March 28, 2011
Government Code section 91346.1 (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 ofi 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 on 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 flax to (916} 653-5040 or via a-mail to fc~cCa7fQC.ca.gov.
Comments must identify the emergency topic and may address the Ending of emergency, the
standards set forth in sections 11346.1 and 11349.1 ofi the Government Code and Section 240
ofi 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 ReAUlatorv 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/savings in Federal Funding to the State:
The Commission has determined that the adoption of Section 749.6 of Title 14 of the California
Code of Regulations as an emergency regulation pursuant to FGC section 2084 will not result in
costs or savings in federal funding to the State.
{b) Nondiscretionary Casts/Savings to Local Agencies:
The Commission has determined that adoption of Section 749:6 of Title 14 of the California
Code of Regulations as an emergency regulation pursuant to Fish and Game Code section 2084
5
will likely provide cost savings to local agencies in an undetermined amount. In the absence of
the emergency regulation, the Department would have to authorize take of MYLF on a project-
by-project basis, which is both time-consuming and costly to local agencies seeking take
authorization. Without this emergency regulation, many routine and ongoing otherwise lawful
wildfire suppression and response activities; water management and conveyance activities;
restoration, conservation and enhancement actions; scientific research, monitoring and
management activities; and forest practices and timber harvest activities would be delayed, or
cancelled entirely while awaiting the necessary CESA authorization or ultimate listing
determination by the Commission. These delays and cancellations would cause great economic
harm to persons already lawfully engaged in such activities, their employees, their loco!
communities, and the State of California, especially during the current economic crisis.
(c) Programs Mandated on Local Agencies or School Districts:
The Commission has determined that the adoption of Section 749.6 of Title 14 of the California
Code of Regulations as an emergency regulation does not impose a mandate on local agencies
or school districts.
(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; and
(e) Effect on Housing Casts:
The Commission has determined that the adoption of Section 749.6 of Title 14 of the California .
Code of Regulations as an emergency regulation will not result in any cost to any local agency or
school district for which Government Code sections 17500 through 17630 require
reimbursement and will not affect housing costs.
(f} Costs or Savings to State Agencies
The Commission has determined that adoption of Section 749.6 of Title 14 of the California
Code of Regulations as an emergency regulation pursuant to Fish and Game Code section 2084
will likely provide cost savings to state agencies in an undetermined amount. In the absence of
the emergency regulation, the Department would have to authorize take of MYLF on a project-
by-project basis, which is both time-consuming and costly for both the Department in processing
and authorizing such take, as well as to state agencies seeking take authorization. Without this
emergency regulation, many routine and Ongoing otherwise lawful. wildfire suppression and
response activities; water management and conveyance. activities; restoration, conseniation and
enhancement actions; scientific research, monitoring and management activities; and forest
practices and timber harvest activities would be delayed, or cancelled entirely while awaiting the
necessary CESA authorization or the ultimate listing decision by the Commission. These delays
and cancellations would cause great economic harm to persons already lawfully engaged in
such activities, their employees, #heir local communities, and the State of California, especially in
light of the current economic crisis.
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
~ 1342.580 and 11346.2(a}(1}.
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Consideration of Alternatives
In view of information currently possessed, no reasonable alternative considered would be more
effective in carrying out the purposes 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
Jon K. Fischer
Dated: March 15, 2011 Ac#ing Executive Director
7
FISH AND GAME COMMISSION
STATEMENT OF EMERGENCY ACTION
FOR RE-ADOPTION OF EMERGENCY REGULATIONS
Emergency Action to Re-adopt Section 749.6, Title 14, CCR,
Re: Special Order Relating to Incidental Take of Mountain-Yellow Legged Frog
{Rana muscosa and Rana sierrae) During Candidacy Period
I. Request for Approval of Re-adoption of Emergency Regulation
The Fish and Game Commission (Commission) requests to re-adopt Section
749.6, Title 14, California Code of Regulations (CCR) jOffice of Administrative
Law (OAL) file number 2010-0930-03 E] without modification. The Findings of
Emergency for this file (Attachment A}, which contain the following information:
StatementlFinding of Emergency; Authority and Reference Citations; Informative
Digest; Fiscal Impact Statement; and Standard Form 399 are incorporated by
reference. The objective of this regulation is to allow specified activities to ~~
continue on an interim basis, subject to the measures in the regulation designed
to protect Mountain yellow-legged frog {MYLF), while the Department of Fish and
Game (Department) focuses its efforts on further evaluating the status of MYLF.
II. Emergency Regulation in Effect to Date
On September 15, 2010, the Commission determined that the listing of MYLF
may be warranted. {Cal. Reg. Notice Register 2010, No. 40-Z, p. 1601 (October
1, 2010).) The Commission's determination designates MYLF as a candidate
species under the California Endangered Species Act (CESA}. On September
15, 2010, the Commission adapted an emergency regulation pursuant to Fish
and Game Code (FGC) section 2084 to allow incidental take of MYLF during its
candidacy period subject to specified conditions. (Cal. Reg. Notice Register
2010, No. 43-Z, p. 1782 (October 22, 2010).) The emergency regulation was
approved by OAL and became effective on October 11, 2010. Pursuant to
Government Code (GC} sections 11346.1 (e) and (h), emergency regulations are
effective for 180 days. OAL may approve two re-adoptions, each for a period not
to exceed ninety days. In the absence of re-adoption, the current 2084
regulation will expire on April 12, 2011.
lil. Statement of Emergency
The Commission has prepared this Emergency Action Statement under the
Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.) in connection
with its request to OAL to approve the re-adoption of section 749.6 of Title 14' of
the California Code of Regulations (CCR}. The Commission's adoption, and
requested re-adoption, of section 749.6 as an emergency action under the APA
is based, in part, on authority provided by FGC sections 240 and 2084. Pursuant
to the latter section, the emergency regulation adopted by the Commission,
Page 1 of 4
section 749.6, authorizes inciden#al "take" of MYLF during candidacy, subject to
certain terms and conditions prescribed by the Commission. (See generally Fish
& G. Code, ~§ 86, 2080, 2084, 2085.)
As set forth above, the Commission designated MYLF as a candidate species
under CESA and found that adoption of section 749.6 pursuant to FGC sections
240 and 2084 constituted a necessary emergency action by the Commission
under the APA. If the emergency regulation is not re-adopted, individuals
engaging in activities authorized pursuant to section 749.6 would need to obtain
an incidental take permit (ITP) or other authorization from the Department on a
project-by-project basis to avoid poten#ial criminal liability for violating CESA
should take occur. The issuance of individual ITPs authorizing incidental take is
a complicated and lengthy process, and the Commission finds specifically that it
is not feasible for the regulated community to obtain, and the Department #o
issue, ITPs or other authorizations on aproject-by-project basis for the numerous
activities that would otherwise be prohibited during the candidacy period for
MYLF. Without re-adoption of the emergency regulation, prospective permittees,
by any reasonable measure, would be subject to CESA's take prohibition without
an ability to obtain the necessary state authorization during the candidacy period.
As a practical matter, activities that result in the take of MYLF would be
prohibited and could not be implemented pending final action by the Commission
on the listing petition, an action whereby MYLF may or may not be listed as
endangered or threatened under CESA. As a result, many projec#s that are
planned or underway that may provide economic, scientific, conservation, andlor
other benefits to the State of California, its residents and their communities, and
the State's natural resources wouid be postponed during the candidacy period or
canceled entirely. The Commission finds this threatened result constitutes an
emergency under Fish and Game Code section 240 and the APA requiring
immediate action, especially against the backdrop of the economic crisis
currently faced by the State of California.
Given that the emergency circumstances that necessitated the original 2084
regulation are continuing and unchanged, the Commission requests that the
previous Finding of Emergency (Attachment A) previously incorporated by
reference into this document be used to supplement this justification.
lV. Re-adoption Criteria
1) Same or Substantially Equivalent
Pursuant to GC section 'I 1346.'1 (h}, the text of a re-adopted regulation must be
the "same or substantially equivalent" to the text of the original emergency
regulation. The proposed language for the re-adopted 2084 emergency
regulation is the same as the language of the original 20$4 emergency
regulation. As no changes have been made to the text of Section 749.6, Title 14,
CCR, this requirement leas been met.
Page 2 of 4
{2) Substantial Progress
GC section 11346.1 (h) specifies that the emergency rulemaking agency must
demonstrate that it is making "substantial progress and has proceeded with due
diligence" to comply with the standard rulemaking provisions. The Commission
has not technically complied with this requirement because a standard
rulemaking is not necessary in this particular circumstance and this 2084
regulation is not the appropriate mechanism to authorize take of a threatened or
endangered species absent statutory authority. .
A 2084 regulation is an appropriate mechanism to authorize take for "candidate"
species. Pursuant to FGC sections 2080 and 2085, take of a candidate species
is prohibited, unless: (1) the take is authorized in a regulation adopted by the
Commission pursuant to FGC section 2084 or (2) the Department authorizes the
take through incidental take. permits issued on aproject-by-project basis pursuant
to FGC section 2081. Therefore a 2084 regulation is an appropriate mechanism
to authorize take of a candidate species. However, a species is only a
"candidate" until the Commission decides whether listing the species as
threatened or endangered "is warranted" or "is not warranted." (Fish & G. Code §
2075.5.} This determination immediately follows the conclusion of the 12-month
review of the species' status by the Department. (Id. § 2074.6.) After the
Commission makes the determination that listing the species is or is not
warranted, a 2084 regulation is no longer appropriate because the species is no
longer a candidate for listing. At that point, the species is either protected under
CESA as a listed species or is no longer protected under CESA because it is not
listed and is no longer a candidate for listing.
If the Commission determines that listing the MYLF "is warranted," the former
candidate species will become a listed species and the persons conducting
activities currently covered by the 2084 regulation that take MYLF will be
required to obtain an Incidental Take Permit (ITP) pursuant to FGC section
2081(b). ITP's are authorized for certain activities only if specified criteria are
met including minimization and full mitigation of the impacts of the take. ITP's
are issued on aproject-by-project basis to ensure the mitigation and minimization
measures are narrowly tailored to the individual project and completely protective
of the species. Given that persons conducting activities that will take MYLF will
be required to obtain an ITP, which will contain tailored measures to mitigate the
impacts of the take, adoption of this 2084 regulation as permanent is not
necessary because the MYLF will be protected under CESA and its provisions as
a listed species.
If the Commission decides that listing the MYLF "is not warranted," take of the
former candidate species will no longer be prohibited under CESA. Absent
protected status, no mechanism would be needed to authorize take of MYLF. In
that circumstance, adoption of this 2084 regulation as permanent is unnecessary.
Page 3 of 4
A standard ruiemaking is not necessary to authorize take of MYLF regardless.
As discussed above, if the MYLF is listed it will be protected under CESA as a
listed species independent of this 20$4 regulation. If the MYLF is not listed, no
authorization will be needed for a take. The Commission is currently proceeding
with due diligence in accordance with its statutory duties to determine whether or
not the listing of MYLF is warranted and the inherent temporary nature of a 2084
regulation makes pursuing its permanent status unnecessary.
Page 4 of 4
FISH AND GAME COMMISSION
STATEMENT OF EMERGENCY ACTION
Emergency Action to Add Section 749.6, Title 14, CCR,
Re: Special Order Relating to Incidental Take of Mountain-Yellow Legged Frog
(Rana muscosa and Rana sierrae~ During Candidacy Period
I. INTRODUCTION
The Fish.and Game Commission ("Commission") as established by the
Constitution of the State of California has exclusive statutory authority to
designate species protected by the California Endangered Species Act ("CESA"}
(Fish & G. Code, § 2050 et seq.). (Cal. Const., art. IV, § 20, subd. (b); Fish & G.
Code, § 2070.) As described in greater detail below, CESA authorizes the
Commission to establish lists of threatened and endangered species, and to add
or remove species from those lists if it finds, upon receipt of sufficient scientific
information, that the action is warranted. Pursuant to section 20$4 of the Fish
and Game Code, the Commission may authorize, subject to the terms and
conditions it prescribes, the taking of any species designated as a candidate for
listing under CESA. Pursuant to controlling statutory authority, the candidacy
period under CESA generally runs fora 12-month period. (See generally Id., §§
2074.6, 2080, 2085.} The Commission has relied on the authority in section
2084 to permit take of candidate species on eight previous occasions: in 1994 far
the southern torrent salamander; in 1994 for the coho salmon south of San
Francisco; in 1997 and 1998 for the spring-run Chinook salmon; in 2000 far coho
salmon throughout its range in California; in 2002 for the Xantus's murrelet; in
2008 for the longfin smelt; in 2009 for the California tiger salamander; and in
2009 for the Pacific fisher.
On September 15, 2010, the Commission determined that the listing of Mountain
yellow-legged frog (MYLF) may be warranted. The Commission's determination
designates MYLF as a candidate species under CESA and notice of the
Commission's finding will be published in the California Regulatory Notice
Register. The Commission has prepared this Emergency Action Statement
under the Administrative Procedure Act (APA) (Gov. Code, § 11340 et seq.) in
connection with its subsequent adoption of section 749.6 of Title 14 of the
California Code of Regulations. The Commission's adoption of section 749.6 as
an emergency action under the APA is based, in part, on authority provided by
Fish and Game Code sections 240 and 2084. Pursuant to the latter section, the
emergency regulation adopted by the Commission, section 749.6, authorizes
incidental "take" of MYLF during candidacy, subject to certain terms and
conditions prescribed by the Commission. (See generally Fish & G. Code, §§ 86,
20$0, 2084, 2085.)
As set forth below, the Commission designated MYLF as a candidate species
under CESA and -found that adoption of section 749.6 pursuant to Fish and
Page 1 of 17
Game Code sections 240 and 2084 constitutes a necessary emergency action by
the Commission under the APA. In the absence of this emergency regulation,
individuals engaging in activities authorized pursuant to section 749.6 would
need to obtain an incidental take permit ("ITP") or o#her authorization from the
Department of Fish and Game ("Department") on aproject-by-project basis to
avoid potential criminal liability for violating CESA should take occur. The
issuance of individual ITPs authorizing incidental take is a complicated and
lengthy process, and the Commission finds specifically that it is not feasible far
the regulated community to obtain, and the Department to issue, ITPs or other
authorizations on aproject-by-project basis for the numerous activities that would
otherwise be prohibited during the candidacy period for MYLF. Without this
emergency regulation, prospective permittees, by any reasonable measure,
would be subject to CESA's take prohibition without an ability to obtain the
necessary state authorization during the candidacy period. As a practical matter,
activities that result in the take of MYLF would be prohibited and could not be
implemented pending final action by the Commission on the listing petition, an
action whereby MYLF may or may not be listed as endangered or threatened
under CESA. As a result, many projects #hat are planned or underway that may
provide economic, scientific, conservation, and/or other benefits to the State of
California, its residents and their communities, and the State's natural resources
would be postponed during the candidacy period or canceled entirely. The
Commission finds this threatened result constitutes an emergency under Fish
and Game Code section 240 and the APA requiring immediate action, especially
against the backdrop of the economic crisis currently faced by the State of
California.
II. BACKGROUND
On January 27, 2010, the Commission received a petition from the Center for
Biological Diversity {"Center") to list MYLF as an endangered species under
CESA. (Cal. Reg. Notice Register 2010, No. 9-Z, p. 333 (February 26, 2010}.)
In June 20'10, the Department provided the Commission with a written evaluation
of the petition pursuant to FGC section 2073.5, indicating the Department
believed that the petition provided sufficient information to indicate the petitioned
action may be warranted. On September 15, 2010, at a public meeting in
McClellan, California, the Commission considered the petition, the Department's
evaluation report and recommendation, and other informs#ion presented to the
Commission and determined sufficient information exists to indicate the
petitioned action may be warranted. In so doing, the Commission accepted the
Center's petition for furfher review and designated MYLF as a candidate species
under CESA. The Commission expects to publish notice of its finding as
required by law on or about October 1, 2010, at which time "take" of MYLF as
defined by the Fish and Game Code will be prohibited, except as authorized by
law. (See Fish & G. Code, §§ 86, 2074.2, subds. {a)(2), (b), 2080, 2085.)
Page 2 of 17
On September 15, 2010, the Commission also adopted section 749.6 as an
emergency action under the APA (Gov. Code, § 11340 e# seq.}, as well Fish and
Game Code section 240. In the absence of the take authorization provided by
section 749.6, or as otherwise provided under existing law, take of MYLF will be
prohibited by CESA and unauthorized take will be subject to criminal liability and
potential prosecution under state law. Under the APA, upon approval by the
Office of Administrative Law, section 749.6 will remain in effect initially for six
months beginning on or about October 1, 2010.
III, FACTS CONSTITUTING THE NEED FOR EMERGENCY ACTION
The APA defines an "emergency" to mean "a situation that calls for immediate
action to avoid serious harm to the public peace, health, safety, or general
welfare." (!d. § 11342.545.) To make a finding of emergency, the agency must
describe the specific facts supported by substantial evidence that demonstrate
the existence of an emergency and the need for immediate adoption of the
proposed regulation. {Id., § 11346.1, subd. {b)(2):) Some of the factors an
agency may consider in determining whether an emergency exists include: {1)
the magnitude of the 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 firmer than simple speculation. The Commission
has considered ail of these factors and the definition of an emergency provided in
the APA, as weal as pertinent authority in Fish and Game Code section 240.
Under this latter authority, notwithstanding any other provision of the Fish and
Game Code, the Commission may adopt an emergency regulation where doing
so is necessary for the immediate conservation, preservation, or protection of fish
and wildlife resources, or for the immediate preservation of the general welfare.
The Commission finds that such necessity exists in the present case.
Section 749.6 authorizes incidental take of MYLF during candidacy for seven
categories of activities:
• In connection with scientific, education or management activities.
• In connection with activities authorized pursuant to a scientific collecting
permit issued by the Department or a recovery permit issued by a federal
.wildlife agency pursuant to United States Code, T#le 16, section 1539,
subdivision (a)(1){A}.
• In connection with otherwise lawful activities initiated to protect, restore,
conserve or enhance any state or federally threatened or endangered
species and its habitat.
• In connection with fish hatchery and stocking operations consistent with
the project description and related mitigation measures identified in the
Page 3 of 17
Department and U.S. Fish & Wildlife Service ("Service") Hatchery and
Stacking Program Joint Environmental lmpact ReportlEnvironmental
Impact Statement (SCH No. 2008082025)("EIRIEIS"), as certified by the
Department on January. 11, 2010.
In connection with activities necessary to prevent, respond or suppress
wildland fire; and
• In connection with water storage and conveyance activities.
• In connection with otherwise lawful timber operations.
The Commission finds as set forth below that an emergency exists with respect
to each of these covered activities.
A. Scientific, Education or Management Activities
Section 749.6, subdivision (a){1) and (2}, authorizes incidental take of MYLF for
scientific, education or management activities, including activities authorized
through a scien#ific collecting permit issued by the Department or through a
recovery permit issued by a federal wildlife agency. As explained below, the
Commission finds that the designation of MYLF as a candidate species under
CESA, and the related take prohibition, constitutes an emergency under the APA
with respect to otherwise lawful scientific, education or management activities..
The Commission also finds that immediate emergency action to adopt Section
749.6, subdivision (a)(1}and (2}, is necessary to conserve, preserve, or protect
offish and wildlife resources, and to preserve the general welfare.
In the absence of the emergency regulation, #ake of MYLF for scientific,
education anc# management purposes would require authorization by the
Department through an individual ITP which is a lengthy, complicated process.
{See previous discussion on CESA's other forms of take authorization and why
they are not likely to authorize these activities to continue during the candidacy
period.) Far some of the activi#ies authorized by this subdivision, there is one
other unique form of take authorization availab#e, Fish and Game Code section
2081, subdivision (a). Because this form of take authorization still requires
"permits or memorandums of understanding {to) authorize individuals...and
scientific or educational institutions" to~take, it is unlikely that permits under this
section could be issued much more quickly than the standard 1TP issued by the
Department under section 2081, subdivision (b}.
Management, education and scientific activities (including research and
monitoring) are critical during this candidacy period. During this period, the
Department is expected to prepare a status review for MYLF so the Commission
can de#ermine if the species should in fact be listed. During this candidacy
period, the Department needs all of the scientific information that is available to
Page 4 of 17
make the most scientifically sound recommendation to the Commission and the
Commission to make the most scientifically sound final listing decision. There
are currently many ongoing MYLF studies proceeding pursuant to Department-
issued scientific collecting permits, which are occurring throughout the species'
range, and must be allowed to continue to ensure a complete data sefi. Many
studies operate on a continuous basis and rely on that predictability in coming to
scientific conclusions about the data they acquire. In addition, new studies
during this period that might be proposed should also be facilitated without delay
to fill in any data gaps relevant to the possible listing of MYLF. If these activities
are not allowed to continue, adequate evaluation and protection of MYLF could
be severely impaired and the public will be disserved by decisions being made
without the best available science.
Adoption of this emergency regulation would minimize the hardships that would
be caused by delays in ongoing or new management, education and scientific
activities while providing safeguards to protect the MYLF, including continued
regulatory oversight by the Department pursuant to its authority to condition
scientific collecting permits. (See Cal. Code Regs, tit. 14, § 650.) Therefore, the
Commission finds that impacts to management, education and scientific activities
caused by designating the MYLF as a candidate species, constitute an
emergency under the APA requiring immediate action.
B. Actions to Protect, Restore, Conserve or Enhance
Section 749.6, subdivision (a}(3), authorizes take of MYLF incidental to otherwise
lawful activities where the purpose of the underlying activity is to protect, restore,
conserve or enhance a state or federally threatened or endangered species and
its habitat. As explained below, the Commission finds that the designation of
MYLF as a candidate species under CESA, and the related take prohibition,
constitutes an emergency under the APA with respect to otherwise lawful
activities to protect, restore, conserve or enhance state or federally threatened or
endangered species and their habitat. The Commission also finds that
immediate emergency action to adop# Section 749.6, subdivision (a)(3}, is
necessary to conserve, preserve, or protect of fESh and wildlife resources, and tv
preserve~the general welfare.
In the absence of the emergency regulation, take of MYLF incidental to otherwise
lawful activities to protect, restore, conserve or enhance state or federally
threatened or endangered species and their habitat would require authorization
by the Department through an individual ITP which is a lengthy, complicated
process. (See previous discussion on CESA's other forms of take authorization
and why they are not likely to authorize these activities to continue during the
candidacy period.} Ongoing and planned activities to protect, restore, conserve
yr enhance state or federally threatened or endangered species are critical
during this candidacy period. The status of many listed species is precarious,
and even the slightest delay~in initiated or continued implementation of any
Page 5 of 17
related conservation actions could adversely affect or otherwise cause further
.decline of these species. In addition, any further decline in the status of listed
species will lead fo increased costs to the Department because more resources
will be.required #o get the species to the point where protective measures are no
longer necessary. Increased cost will also be shouldered by prospective
permittees, who will be charged with funding the mitigation and related
monitoring required for the impacts of their project on the species.
Adoption of this emergency regulation would minimize the hardships that would
be caused by delays in ongoing or new lawful activities to protect, restore,
conserve and enhance state or federally threatened or endangered species and
#heir habitat. The Commission finds that impacts #o activities to protect, restore,
conserve, or enhance state or federally, threatened or endangered species and
their habitat caused by designa#ing the MYLF as a candidate species, constitute
an emergency under the APA requiring immediate action.
C. Fish Ha#chery and Stocking Operations
Section 749.6, subdivision (a)(4), authorizes take of MYLF incidental to fish
hatchery and related stocking activities consistent with the project description
and related mitigation measures identified in the Department and Service
Hatchery and Stocking. Program Joint EIRIEIS as certified by the Department on
January 11, 2010. As explained below, the Commission finds that the
designation of MYLF as a candidate species under CESA, and the related take
prohibition, constitutes an emergency under the APA with respect to hatchery
and stocking program activities. The Commission also finds that immediate
emergency action to adopt Section 749.6, subdivision (a)(4}, is necessary for the
conservation, preservation, or protection of fish and wildlife, and to preserve the
general welfare.
In the absence of Section 749.6, subdivision (a)(4}, take of MYLF incidental to
otherwise lawful fish hatchery and related stocking activities would require
authorization by the Department through an individual 1TP and, as previously
stated, doing so is a lengthy and complicated process. (There are other means
by which take can. be authorized under CESA, however they either take longer
than individual ITPs or are not likely to be available for use for fish ha#chery and
related stocking activities.) Fish hatchery and related stocking activities
consistent with the project description and related mitigation measures identified
in the recent Department and Service Joint EIRIEIS play a critical role in efforts
to conserve and manage California's fishery both from a conservation and
management, and recreational standpoint. In addition, the project description
and mitigation measures identified in the Joint EIRIEIS were carefully crafted by
the Department and Service with extensive public review and related scientific
input,~ali with the goal of conserving and managing California's fisheries in a way
that protects and ensures that any indirect impacts are avoided or substantially
reduced to the extent feasible. Absent the take authorization provided by Section
Page 6 of 17
749.6, subdivision {a){4}; during the 12-month candidacy period fish hatchery and
related stocking activities would cease or be substantially curtailed to the
detriment of the People of California and related natural resources.
Adoption of this. emergency regulation would minimize the hardships #o hatchery
and stocking activities as a result of MYLF being designated as a candidate
species under CESA. The Commission finds, as a result, that impacts to
hatchery and stocking activities constitute an emergency under the APA requiring
irrtmediate action.
D. Wiidland Fire Preven#ion, Suppression and Response
Section 749.6, subdivision {a)(5}, authorizes take of MYLF incidental to otherwise
lawful wildland fire prevention, response and suppression activities. As
explained below, the Commission finds that the designation of MYLF as a
candidate species under CESA, and the related take prohibition, constitutes an
emergency under the APA with respect to fire prevention, response and
suppression activities. The Commission also finds that immediate emergency
action to adopt Section 749.6, subdivision (a}{5), is necessary to preserve the
general welfare.
In the absence of Section 749.6, subdivision (a)(5), take of MYLF incidental to
otherwise lawful fire prevention, response, and suppression activities, would
require authorization by the Department through an individual ITP and, as
previously stated, doing so is a lengthy and complicated process. (There are
other means by which take can be authorized under CESA, however they either
take longer than individual ITPs or are not likely to be available for use for
wildland fire prevention, suppression and response activities.) It is important to
note that unlike many other regulatory statutes, CESA does not contain any
exemption from the permitting requirements or the take prohibition for emergency
situations like fuel (vegetation) control, wildfire suppression and response.
California's fire seasons have recently involved far-ranging catastrophic wildland
fires. The rate of the emergency regulation in allowing activities related to fire-
related vegetation management and prevention, fire suppression and response
to continue falls squarely within virtually any statutory definition of "emergency,"
including one of the most narrow--CEQA's definition of an emergency that states
it is an activity "involving a clear and imminent danger, demanding immediate
action to prevent or mitigate loss of, or damage to, life, health, property, or
essential public services." (Pub. Resources Code, § 21084; see also CEQA
Guidelines, § 15359.)
According to CalFire's website, creating a "defensible space" by controlling
vegetation within 100 feet of dwellings and other buildings "dramatically
increases the chance of your house surviving a-wildfire" and "provides for
firefighter safety" when fighting a fre. It is precisely these vegetation control
Page 7 of 17
activities that are authorized under the emergency regulation without the need for
additional take authorization. The emergency regulation also removes
impediments to critical wildland fire suppression and response. Delays due to
permitting would cause risks to public safety, should fire suppression activities be
delayed or cancelled entirely. In addition, there would be grave social and
economic harm to the employees and agencies tasked wi#h carrying out the fire
suppression activities and the local communities where those activities. might be
critically needed.
Adoption of this emergency regulation would minimize these hardships.
Therefore, the Commission finds that impacts to wildland fire prevention,
response and suppression activities, caused by designating the MYLF as a
candidate species, constitute an emergency under the APA requiring immediate
action.
D. Watershed Storage and Conveyance Activities
Section 749.6, subdivision {a){6), authorizes take of MYLF incidental to otherwise
lawful water storage and conveyance activities. ;4s explained below, the
Commission finds that the designation of MYLF as a candidate species under
CESA, and the related take prohibition, constitutes an emergency under the APA
with respect to otherwise lawful water storage and conveyance activities. The
Commission also finds that immediate emergency action to adopt Section 749.6,
subdivision {a}{6), is necessary to preserve the general welfare.
In the absence of the emergency regulation, take of MYLF incidental to otherwise
lawful water storage and conveyance activities would require authorization by the
Department through an individual ITP which is a leng#hy, complicated process.
{See previous discussion on CESA's other forms of take authorization and why
they are not likely to authorize these activities to continue during the candidacy
period.) Activities to maintain, manage or operate watershed storage and
conveyance facilities must be allowed to continue during this candidacy period.
Many dams are located in the range of MYLF, and are utilized for power
generation, water storage, and recreation. The conveyance facilities operate to
transport the water from storage facilities to customers, including members of the
public. Withou# take protection, it is possible that water deliveries, power
generation or recreational opportunities would be interrupted. The ability to
deliver water and manage stored water without impediment is necessary to avoid
serious harm to public health due to Zack of water for drinking, sanitation and food
production.
Adoption of this emergency regulation would minimize the hardships that would
be caused by delays in lawful water storage and conveyance activities. The
Commission finds that impacts to lawful water storage and conveyance activities
constitute an emergency under the APA requiring immediate action.
Page 8 of '17
E. Fores# Practices and Timber Harvest Activities
Section 749.6, subdivision (a}{7}, authorizes incidental take of MYLF incidental to
otherwise lawful timber harvest activities. As explained below, the Commission
finds that the designation of MYLF as a candidate species under CESA, and the
related take prohibition, constitutes an emergency under the APA with respect to
otherwise lawful timber harvest activities and operations. The Commission also
fads that immediate emergency action to adopt Section 749.6, subdivision {a)(7),
is necessary to preserve the general welfare.
In general, timber harvest review in California is administered by the California
Department of Forestry and Fire Protection ("CalFire") pursuant to the Z'Berg
Nejedly Forest Practice Act {Pub. Resources Code, § 4511 et seq.), the Forest
Practice Rules {Cal. Code Regs., tit. 14, § 895 et seq.), and other applicable law,
including the California Environmental Quality Act {"CEQA") {Pub. Resources
Code, § 21Q00 et seq.). !n the absence of Section 749.6, subdivision (a)(7),
many existing, already-approved, otherwise lawful timber harvest operations in
MYLF range could not move forward absenfi additional review and re-approval.
Likewise, without Section 749.6, many already-approved, otherwise lawful timber
harvest operations and activities would require aproject-specific authorization
under CESA from the Department. Yet, the regulatory oversight of timber
operations by various public agencies under State law generally requires
consideration and protection of various environmental resources and in many
instances government approval of individual timber harvest activities requires
compliance with CEQA and mitigation of significant environmental impacts to the
extent feasible. Therefore, many timber projects that are about to commence or
are already underway currently include measures that will reduce the prospect of
adverse impacts to, and minimize and mitigate take of MYLF. Re-opening and
re-negotiating agreements for timber activities to address the MYLF's legal status
as a candidate species and, where necessary, to obtain an iTP or other take
authorization under CESA (e.g., FGC section 2835) would unnecessarily delay
these already-approved and otherwise lawful timber operations, resulting in
undue burden on the Timber Harvest Plan (THP) holder.
Without this emergency regulation, many routine and ongoing otherwise lawful
timber operations on land already managed for timber harvest would be delayed
while awaiting the necessary State CESA authorization or cancelled entirely. in
many cases, the delays would cause THP holders to substantially delay or
cancel their projects entirely, resulting in great social and economic harm to the
THP holders, their employees, registered professional foresters, the local
communities that rely on timber harvest activities, and the State of California.
CalFire review of existing otherwise lawful timber operations, along with project-
specific CESA permitting by the Department, would also pose a significant
burden to these state agencies. Both CalFire and the Department would likely
face a sudden and potentially large increase in requests for timber harvest review
and related take authorizations under CESA. Neither agency is equipped with
Page 9 of 17
appropriate resources to handle and address the likely workload associated with
this scenario, creating a significant permitting backlog.
F. Reporting
Subdivision (b) of the emergency regulation is different from the previous
sections described herein. It is not an additional activity for which take is
authorized. under the regulation. Instead, subdivision (b) of the emergency
regulation concerns reporting detections and observations of MYLF in connection
with and by persons involved or otherwise engaged in the activities far which
take is authorized pursuant to subdivision (a). It is vi#al that during this candidacy
period detections and observations of MYLF be reported to the Department so it
can have the mast complete information possible as it prepares its scientific
status review of the species and develops related recommendation to the
Commission regarding whether listing MYLF under CESA is warranted.
For these reasons, the immediate adoption of this emergency regulation is
necessary to allow numerous projects and activities to continue during the
candidacy review period for MYLF under CESA. The Commission believes the
activities permitted under this regulation will result in very limited take and will not
jeopardize the continued existence ofi the species. The Commission finds, in this
respect, that the regulation subject to this determination-will ensure appropriate
interim protections for MYLF while the Department conducts a 12-month review
of the status of the candidate. species and the Commission makes its final
determination regarding listing under CESA.
iV. 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 regulation is necessary for the immediate conservation,
preservation, or protection offish and wildlife resources, and for the immediate
preservation of the general welfare. The Commission specifically finds that the
adoption of this regulation will allow activities that may affect MYLF to continue
during the candidacy period as long, as those activities are~conducted in a
manner consistent with the protections specified in this regulation.
V. Authority and Reference Citations
Authority: FGC sections 200, 202, 205, 240, and 2084.
Reference: FGC sections 200, 202, 205, 240, 2080, 2084, and 2085.
Page 10 of 17
VI. informative Digest
The sections below describe laws relating to listing species under CESA, the
effect of this emergency regulation, a description of related federal law, and a
policy statement overview.
A. Laws Related to the Emergency Regulation -Listing under CESA
1. Petition and Acceptance
Fish and Game Code section 2070 requires the Commission to establish a list of
endangered species and a list of threatened species. Any interested person may
petition the Commission to add a species to the endangered or threatened list by
following the requirements in Fish and Game Code sections 2072 and 2072.3. If
a petition is not factually incomplete and is on the appropriate form, it is
forwarded to the Department for evaluation.
Fish and Game Cade section 2073.5 sets out the process for accepting for
further consideration or rejec#ing a petition to list a species and, if the petition is
accepted, a process for actually determining whether listing of the species as
threatened or endangered is ultimately warranted. The first step toward petition
acceptance in~ol~es a 90-day review of the petition by the Department to
determine whether the petition contains sufficient information to indicate that the
petitioned action may be warranted. The Department prepares a report to the
Commission that recommends rejection or acceptance of the petition based on
its evaluation.
Fish and Game Code section 2074.2 provides that, if the Commission finds that
the petition provides sufficient information to indicate that the petitioned action
maybe warranted, the petition is accepted for consideration and the species that
is the subject of the petition becomes a "candidate species" under CESA. CESA
prohibits unauthorized take of a candidate species. Fish and Game Code
section 86 states "take" means to hunt, pursue, catch, capture, or kill, or attempt
to hunt, pursue, catch, capture, or kill. Killing of a candidate, threatened, or
endangered species under CESA that is incidental to an otherwise lawful activity
and not the primary purpose of the activity constitutes take under state law.
{Department of Fish and Game v.. Anderson~Cotfonwood Irrigation District (1992)
8 Cal.App.4th '1554; see also Environmental Protection and Information Center v.
California Dept. of Forestry and Fire Protection (2008) 44 Cal.4th 459, 507 (in the
contex# of an ITP issued by the Department under CESA the California Supreme
Court stated, `°take' in this context means to catch, capture or kill").)
CESA's take prohibition applies to candidate species pursuant to Fish and Game
Code section 2085 upon public notice by the Commission of its finding that
sufficient information exists to indicate the petitioned action may be warranted.
Upon publication of such notice in the California Regulatory Notice Register, take
Page 11 of 17
of candidate species is prohibited absent authorization as provided in the Fish
and Game Code. Following such notice, all activities, whether new or ongoing,
that cause incidental take of the candidate species are in violation of CESA
unless the take is authorized in regulations adopted by the Commission pursuant
to Fish and Game Cade section 2084 or the Department authorizes the take
through the issuance of an ITP or other means available pursuant to the Fish and
Game Code.
2. Status Review and Final Action on the Petition
The Commission's acceptance of a petition initiates a 12-month review of the
species' status by the Department, pursuant to Fish and Game Code section
2074.6. This status review helps to determine whether the species should be
listed as threatened or endangered. Unlike the Department's ini#ial evaluation,
which focuses largely on the sufficiency of information submitted in the petition,
the 12-month status review involves a broader inquiry into and evaluation of
available information from other sources. The Commission is required to solicit
data and comments on the proposed listing soon after the petition is accepted,
and the Department's written status report must be based upon the best scientific
information available.
Within 12 months of the petition's acceptance, the Department must provide the
Commission a written report that indicates whether the petitioned action is
warranted. (Fish & G. Cade, § 2074.) The Commission must schedule the
petition for final consideration at its next available meeting after receiving the
Department's report. (ld., § 2075.) In its final action on the petition, the
Commission is required #o decide whether listing the species as threatened or
endangered "is warranted" or "is not warranted." (ld., § 2075.5.) If listing is not
warranted in the Commission's judgment, controlling- authority directs the
Commission to enter that finding in the public record and the subject species is
removed from the list of candidate species.. (ld., § 2075.5(1); Cal. Code Regs.,
tit. 14, § 670.1, subd. (i)(2}.)
B. Effect of the Emergency Action
Section 749.6 of Title 14 of the California Code of Regulations would authorize
and provide for take of MYLF during its candidacy subject to the following terms
and conditions:
a) Take Authorize#ion.
The Commission authorizes the take of Mountain yellow-legged frog during the
candidacy period subject to the terms and conditions herein.
Page 12 of 17
(1) Scientific, Education. or Management Activities.
Take of Mountain yellow-legged frog incidental to scientific, education or
management activities is authorized.
{2} Scientific Collecting Activities.
Take of Mountain yellow-legged frog authorized by a scientific collecting
permit issued by the Department pursuant #o California Code of
Regulations, Title 14, section 650 or a recovery permit issued by a federal
wildlife agency pursuant to United States Code, Title 16, section
1539(a)(1)(A} is authorized.
(3} Actions to Protect, Restore, Conserve or Enhance.
Take of Mountain yellow-legged frog inciden#al to otherwise lawful activities
initiated to protect, restore, conserve or enhance a state or federally
threatened or endangered species and its habitat is authorized.
(4) Fish Hatchery and Stocking Activities.
Take of Mountain yellow-legged frog incidenta! to fish hatchery and related
stocking activities consistent with the project description and rela#ed
mitigation measures identified in the Department of Fish and Game
(Department) and U.S. Fish & Wildlife Service Hatchery and Stocking
Program Joint Environmental Impact ReportlEnvironmental impact
Statement (SCH. No. 2008082025), as certified by the Department on
January 11, 2010, is authorized.
(5) Wildland Fire Response and Related Vegetation Management.
Take of Mountain yellow-legged frog incidental to otherwise lawful wildland
fire prevention, response and suppression activities, including related
vegetation management, is authorized.
{6) Water Storage and Conveyance Activities
Take of Mountain yellow-legged frog incidental to otherwise lawful water
storage and conveyance activities is au#horized.
{7) Forest Practices and Timber Harvest.
Incidental take of Mountain yellow-legged frog is authorized for otherwise
lawful timber operations. For purposes of this authorization, an otherwise
lawful timber operation shall mean a timber operation authorized or otherwise
permitted by the Z'Berg Nejedly Forest Practice Act {Public Resources Code,
Section 4511 et seq.), the Forest Practice Rules of the Board of Forestry, which
are found in Chapters 4, 4.5, and 10, of Title 14 of the California Code of
Regulations, or other applicable law. The Z'Berg Nejedly Forest Practice Act
and Forest Practice Rules can be found at the following website:
httpa/www.fire.ca.govlresource_mgtlresource_mgt_forestpractice.php.
Page 13 of 17
(b} Reporting.
Any person, individual, organization, or public agency for which incidental take of
Mountain yellow-legged frog is authorized pursuant to subdivision. (a), shalt report
observations and detections of Mountain yellow-legged frog, including take, to
the Department of Fish and Game on asemi-annual basis during the candidacy
period. Observations, detections, and take shall be reported pursuant to this
subdivision to the Department of Fish and Game, Fisheries Branch, Attn:
Mountain yellow-legged frog observatians, 830 S St., Sacramento, CA 95811, or
by email submission to mylfdata@dfg.ca.gav. Information reported to the
Department pursuant to this subdivision shall include as available: a contact
name; the date and location (GPS coordinate preferred) of the observation,.
detection; or take; and details regarding the animal(s) observed.
(c} Additions, Modifications or Revocation.
{1) Incidental take of Mountain yellow-legged frog from activities not addressed
in this section may be authorized during the candidacy periad by the
Commission pursuant to Fish and Game Code section 2084, or by the
Department on a case-by-case basis pursuant to Fish and Game Code
section 2081, or other authority provided by law.
(2) The Commission may modify or repeal this regulation in whole or in part,
pursuant to law, if it determines that any activity or project may cause
jeopardy to the continued existence of Mountain yellow-(egged frog.
C. Existin Com arable Federal Re ulations or Statutes
The Federal Endangered Species Act ("FESA") (16 U.S.C. § 1531 et seq.)
includes a listing process that is similar to the listing process under CESA, except
that take of a candidate species is not prohibited under FESA. The U.S. Fish &
Wildlife Service {"Service") designated the southern California population of
MYLF (Rana muscosa) as a distinct population segment and listed it as an
endangered species under FESA on July 2, 2002. (67 Fed.Reg. 44382.) In
January 2003, the Service determined that listing-the Sierra Nevada populations
of MYLF {Rana sierrae) as endangered was warranted, but precluded by, other
higher priority listing actions. (68 Fed.Reg. 2283.) MYLF {Rana sierrae )
remains a candidate under FESA based on the Service's "warranted but
precluded" fnding and take of the species under FESA is not currently prohibited.
FESA Section 4(d} {16 U.S.C. § 1533, subd. (d)) is similar in some respects to
Fish and Game Code section 2084. Section 4(d) authorizes the Service or the
National Marine Fisheries Service (NMFS} to issue protective regulations
prohibi#ing the take of species listed as threatened. These regulations, also
called "4(d) rules," may include any or all of the prohibitions that apply to protect
endangered species and may include exceptions to those prohibitions. The 4(d)
Page 14 of 17
rules give the Service and NMFS the ability to craft comprehensive regulations to
apply to particular activities that may result in take of a threatened species in a
manner similar to the Commission's authority to prescribe terms and conditions
pursuant to FGC section 2084 during the species' candidacy period. Here, no
4(d) rules have been promulgated for MYLF {Rana sierrae) because the
"warranted but precluded" finding by the Service did not yet effectuate the
designation of-MYLF (Rana srerrae) as a federally listed threatened or
endangered species.
This emergency regulation does not provide FESA authorization for take of
MYLF (Rana muscosa and Rana sierrae). To the extent a project will result in
take of MYLF as defined by the FESA, the project proponent is responsible for
consulting with the Service to obtain the appropriate take authorization.
D. Policy Statement Overview
The objective of this emergency regulation is to al#ow specified activities to
continue on an interim basis, subject to the measures in the regulation designed
to protect MYLF, pending final action by the Commission under CESA related to
the proposed listing. The Department's evaluation of the species during the
candidacy period will result in the status report described in Section VLA.2
above. The status report provides the basis for the Department`s
recommendation to the Commission before the Commission takes final action on
the petition and decides whether the petitioned action is or is not warranted.
VII. Specific Agency Statutory Requirements
The Commission has complied with the special statutory requirements governing
the adoption of emergency regulations pursuant to Fish and Game Cade section
240. The Commission held a public hearing on this regulation on September 15,
2010, and the above finding that this regulation is necessary for the immediate
conservation, preservation, or protection of fish and wildlife resources, and for
the immedia#e preservation of the general welfare meets the requirements of
section 240.
VIII. [mpact 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) CostslSavings in Federal Funding to the State:
The Commission has determined that the adoption of Section 749.6 of Title 14 of
the California Code of Regulations as an emergency regulation pursuant to FGC
section 2084 will not result in costs or savings in federal funding to the State.
Page 15 of 17
(b) Nondiscretionary CostslSavings to Local Agencies:
The Commission has determined that adoption of Section 749.6 of Title 14 of the
California Code of Regulations as an emergency regulation pursuant to Fish and
Game Code section 2084 will likely provide cost savings to focal agencies in an
undetermined amount. In the absence of the emergency regulation, the
Department would have to authorize take of MYLF on aproject-by-project basis,
which is both time-consuming and costly to focal agencies seeking take
authorization. Without this emergency regulation, many routine and ongoing
otherwise lawful wildfire suppression and response activities; water management
and conveyance activities; restoration, conservation and enhancemen# actions;
scientific research, monitoring and management activities; and forest practices
and timber harvest activities would be delayed, or cancelled entirely while
awaiting the necessary CESA authorization or ultimate listing determination by
the Commission. These delays and cancellations would cause great economic
harm to persons already lawfully engaged in such .activities, their employees,
their local communities, and the State of California, especially during the current
economic crisis.
(c) Programs Mandated on Local Agencies or School Districts:
The Commission has determined that the adoption of Section 749.6 of Title 14 of
the California Code of Regulations as an emergency regulation does not impose
a mandate on local agencies or school districts.
(d} 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; and
(e) Effect on Housing Costs:
The Commission has determined that the adoption of Section 749.6 of Title 14 of
the California Code of Regulations as an emergency regulation will not result in
any cost to any local agency or school district for which Government Code
sections 17500 through '17630 require reimbursement and will not affec# housing
costs.
(f) Costs or Savings to State Agencies
The Commission has determined that adoption of Section 749.6 of Title 14 of the
California Code of Regulations as an emergency regulation pursuant to Fish and
Game Code section 2084 will .likely provide cost savings to state agencies in an
undetermined amount. In the absence of the emergency regulation, the
Department would have to authorize take of MYLF on aproject-by-project basis,
which is both time-consuming and costly for bath the Department in processing
Page 16 ofi '# 7
and authorizing such take, as well as to state agencies seeking take
authorization. Without this emergency regulation, many routine and ongoing
otherwise lawful wildfire suppression and response activities; water management
and conveyance activities; restoration, conservation and enhancement actions;
scientific research, monitoring and management activities; and forest practices
and timber harvest activities would be delayed, or cancelled entirely while
awaiting the necessary CESA authorization or the ultimate listing decision by the
Commission. These delays and cancellations would cause great economic harm
to persons already lawfully engaged in such activities, their employees, their local
communities, and the State of California, especially in light of the current
economic crisis.
Page 17 of 17
Regulatory Language
Section 749.6, Title 14, CCR, is added #o read:
749.6 Incidental Take of Mountain Yellow-Legged Frog (Rana muscosa and Rana sierrae)
--~
During Candidacy Period
This regulation authorizes take as defined by Fish and Game Code section 86, of Mountain
ellow-le ed fro Rana muscosa and Rana sierrae sub~ect to certain terms and conditions
during the species' candidacy under the California Endangered Species Act (Fish and Game
Code, section 2050 et seq.}.
{a) Take Authorization.
The Commission authorizes the take of Mountain yellow-leaded frog durinq.the candidacy_
period subject to the terms and conditions herein.
{1 ~ Scientific, Education or Management Activities,
Take of Mountain yellow-leg eg d fro"a incidental to scientific, education or management
activities is authorized.
(2} Scientific Collecting Activities.
Take of Mountain yellow-]egged frog authorized by a scientific collecting permit issued by
the Department of Fish and Game pursuant to California Code of Regulations, Title 14,
section 650, or a recovery permit issued by a #ederal wildlife agency pursuant to United
States Code, Title 1S, section 1539, subdivision {a){1}(A}, is authorized.
{3) Activities to Protect, Restore, Conserve or Enhance.
Take of Mountain yellow-legged frog incidental to otherwise lawful activities where the
purpose of the activity is to protect, restore, conserve or enhance a species designated as
an endangered, threatened, or candidate species under state or federal law, or such
species' habitat is authorized.
{4) Fish Hatchery. and Stocking Activities.
Take of Mountain yellow-legged frog incidental to fish hatchery and related stocking
activities consistent with the project description and, related mitigation measures identified
in the Department of Fish and Game (Department) and U.S. Fish & Wildlife. Service
Hatcher and Stocking Program Joint Environmental Impact ReportlEnvironmental Impact
Statement SCH. No. 2008082025 as certified b the De artment on Janua 11 2010
is authorized.
{5) Wildland Fire Response and Related Vegetation Management.
- Take of Mountain vellaw-legged frog incidental to otherwise lawful wildland fire prevention,
response and suppression activities, including related vecietation management, is
authorized.
{6) Water Storage and Conveyance Activities
Take of Mountain yellow-legged_frog_inc_i_dental to o#herwise lawful water storage and
conveyance activities is authorized.
(7) Forest Prac#ices and Timber Harvest.
incidental take of Mountain ellow-le ed fro is authorized for otherwise lawful timber
operations. For purposes of this authorization, an otherwise lawful timber operation
shall mean a timber op__eratian authorized or ath~rwise permitted by the Z'Berq Nejedly
Forest Practice Act Public Resources Code Section 4511 et se the Forest Practice
Rules of the Board of Forest which are found in Cha ters 4 4.5 and 10 of Title 14 of
the California Code of Regulations, or other,applicable law. The Z'Berg Ne~edly Forest,
Prac#ice Act and Forest_Practice Rules can be,found at the following website:
htt :1/www.fire.ca. ovlresource m tlresource m t forest ractice. h .
(b) Reporting,
An ersan individual or anization or ublic a enc for which incidental take of Mountain
ellow-le ed fro is authorized ursuant to subdivision a shall re art observations and
detections of Mountain allow-le ed fro includin take to the De artment of Fish and Game
on asemi-annual basis durin the candidac eriod. Observations detections and take shall
be re orted ursuant to this subdivision to the De artment of Fish and Game Fisheries Branch
Attn: Mountain yellow-legged frog observations, 830 S St., Sacramento, CA 95811, or by email,
submission tom Ifdata df .ca. ov. Information re orted to the De artment ursuant to this
subdivision shall include as available: a contact name• the date and location GPS coordinate
preferred} of the observation, detection, or take;,,and details regarding the animals) abserved~
~c}_Additions, Modifications or Revocation.
1 Incidental take of Mountain allow-le ed fro from activities not addressed in this section
ma be authorized durin the candidac eriod b the Commission ursuant to Fish and
Game Code section 2084 orb the De artment on a case-b -case basis ursuant to Fish
and Game Code section 2081, or other authority provided by law.
2 The Commission ma modif or re eal-this re ulation in whole or in art ursuant to law
if it determines that an activit or ro'ect ma cause 'eo and to the continued existence
of Mountain yellow-legged, frog.
Note: Authorit cited: Sectiaris 200 202 205 240 and 2084 Fish and Game Code. Reference:
Sections 200 202 205 240 2080 2084 and 2085 Fish and Game Code.