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HomeMy WebLinkAboutFish-Game 2CO,'41~I15SIONERS Jim Kellogg, President Discovery Bay Richard Rogers, Vice President Santa Barbara Michael Sultan, Member Monterey Daniel W. Richards, Member Upland Jack Baylis, Member Los Angeles EDMUND G. BRO\YN, JR +~` . .,~x.. ~ y' Governor STATE OF CALIFORNIA Fish and Game Commission December 21, 2011 TO ALL AFFECTED AND INTERESTED PARTIES: Sonke ~7astrup I~l16 ~Vrnfl~ Sfreef Box 9ad,Z09 Sacramenfa, CA 9-11~1,~-2090 (916J 653--1899 (916) 653-500 Fax fgc(~fgc.ca.gov 80ARp OF5t1PERV1S4RS o~ov~~, cqul=oRr-r~a This is to provide you with a copy ofi the notice of proposed emergency regulatory action relating to incidental take of Black-backed Woodpecker. The Commission adopted this emergency regulation at its December 15, 201'! meeting. It is anticipated that the emergency regulation will be filed with the Office of Administrative Law (OAL) on or about December 28, 2011. Sincerely, ti heri Tiemann Staff Services Analyst Attachments Following 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 FGC section 2084 or the Department authorizes the take through the issuance of an ITP or other means available under CESA. 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 FGC Section 2074.6. This s#atus review helps to determine whether the species should be fisted as threatened or endangered. Unlike the Department's initial evaluation, which focuseslargely 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, § 2074.6.) 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 action on the petition, the Commission is required to decide whether listing the species as threatened or endangered "is warranted" ar "is not warranted." If listing is not warranted in the Commission`s judgment, take of the former candidate species is no longer prohibited under CESA. (Id., § 2075.5.) B. Effect of the Emergency Action Section 749.7 of Title 14 of the California Cade of Regulations would authorize take, as defined by Fish and Game Code section-86, of the Black-backed Woodpecker during its candidacy subject to the following terms and conditions: (a) Take Authorization. Based upon the above finding, the Commission authorizes the take of the Black-backed Woodpecker during the candidacy period subject to the terms and conditions herein. {1) Scientific, Education or Management Activities. Take of the Black-backed Woodpecker incidental to scientific, education, or management activities is authorized. {2) Actions to Protect; Restore, Conserve or Enhance. Take of the Black-backed Woodpecker incidental to otherwise lawful activities initiated to protect, restore, conserve or enhance a state or federally threatened or endangered species and its habitat is authorized. (3) Wildland Fire Response and Related Vegetation Management. Take of the Black-backed Woodpecker incidental to otherwise lawful wildland fire prevention, response, and suppression activities, including related vegetation management, is authorized. For purposes of this authorization, vegetation or fuels management activity shall mean an activity to reduce hazardous fuels and prevent or reduce the risk of 2 (d} Additions, Modifications, or Revocation. (1) Incidental take of the Black-backed Woodpecker from activities not addressed in this section may be authorized during the candidacy period by the Commission pursuant to Fish and Game Code Section 2084, ar by the Department an 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 whale or in part, pursuant to law, if it determines that any activity or project may cause jeopardy to the continued existence of the Black-backed Woodpecker. C. Existing, Comparable Federal Regulations or Statutes The Federal Endangered Species Act {FESA) (16 U.S.C. § 1531 et seq.} includes a listing process that is comparable to the listing process under CESA, except that take of a candidate species is not prohibited under FESA. The Black-backed Woodpecker is not listed as an endangered or threatened species under FESA. FESA Section 4(d} (16 U.S.C. § 1533 {d)) is similar in some respects to FGC 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#erms and conditions pursuant to FGC Section 2084 during the species' candidacy period. Here, no 4(d) rules have been promulgated, because the "warranted but precluded" finding by the Service did not yet effectuate the designation of the Black-backed Woodpecker as a federally listed threatened or endangered species. D. Policy 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 the Black-backed Woodpecker, 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 A.2 above. The status report provides the basis for the Department's recommendation to the Commission before the Commission takes final action an the petition and decides whether the petitioned action is or is not warranted. Specific Agency Statutory Requirements The Commission has complied with the special statutory requirements governing the adoption of emergency regulations pursuant to FGC section 240. The Commission held a public hearing on this regulation on December 15, 2011, and the above finding that this regulation is necessary for the immediate conservation, preservation, or protection of fish and wildlife resources, and for the immediate preservation of the general welfare meets the requirements of section 240. 4 ongoing otherwise lawful timber operations on land already managed fior timber harvest would be delayed or cancelled entirely, as would vegetation management, wildfire suppression and response and research and monitoring while awaiting the necessary CESA authorization. These delays and cancellations would cause great economic harm #o persons already lawfully engaged in such activities, their employees, their local communities, and the State of California. (c) Programs Mandated on Local Agencies or School Districts: The Commission has determined that the adoption of Section 749.7 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 #o 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 749.7 of Title 14 of the California Code of Regulations as an emergency regulation wil! not result in any cost to any local agency or school district for which Government Cade 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 749.7 of Title 14 of the California Code of Regulations as an emergency regulation pursuant to FGC 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 the Black-backed Woodpecker on aproject-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. Absent adoption of the emergency regulation, state and local agencies, and the regulated community will bear the timing and process costs associated with project-by-project permitting by the Department. Regulations implementing CESA contemplate a roughly six month review by the Department for proposed ITPs. Appropriate CEQA review for individual ITPs also affects the timing of permits issued by the Department. {Cal. Code Regs., tit. 14, §§ 783.3, 783.5.) The number and timing of permits issued by the Department is also a product of economic conditions, the State of California's ongoing fscal crises, and the resources actually available to the Department to administer the permitting program. CalFire, far example, with its mandate to prevent, respond, and suppress wildland fires would avoid timing and processing costs for individual ITPs with the adoption of Section 749.7. In some instances, the need for and the timing and process costs associated with individual ITPs could delay important prevention and suppression activities. That could lead, in turn, to a greater number and intensity of wildland fres, and greater overall cost for prevention, response, and suppression activities by CalFire. Additionally, reopening existing ITPs, in addition to participating in review and issuance of new 6 violating CESA. 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 regula#ed 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 the Black-backed Woodpecker. Without this emergency regulation, prospective permittees, many of whom already have the necessary entitlements to proceed with their approved projects, would be subject to CESA's take prohibition without, by any reasonable measure, an ability to obtain the necessary state authorization during the candidacy period. As a practical matter, activities that result in the take of the Black-backed Woodpecker would be prohibited and could not be implemented pending final action by the Commission on the listing petition, an action whereby the Black-backed Woodpecker may or may not be listed as endangered or threatened under CESA. As a result, many projects that are planned or underway that provide great economic and other benefits to the permittees, their employees, their local communities, and the State of California would be postponed during the candidacy period or canceled entirely. The Commission finds this threatened result constitutes an emergency under the APA requiring immediate action, especially against the backdrop of the economic crisis currently faced by the State of California. II. Background On October'[, 2010, the Commission received a petition fram the John Muir Project of Earth Island Institute and the Center for Biological Diversity to list the Black-backed Woodpecker as an endangered or threatened species under CESA. {Cal. Reg. Notice Register 2010, No. 44-Z, p. 1851.) III. Facts Constituting the Need for Emergency Action The APA dunes an "emergency" to mean "a situation that calls far immediate ac#ion to avoid serious harm to the public peace, health, safety, or general welfare." {Gov. Code § 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. (Gov. Code § 11346.1(b}{2).). Some 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 all of these factors and the definition of an emergency provided in the APA, as well as pertinent authority in FGC 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, Page 2 of 15 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 the Black-backed Woodpecker so the Commission can determine if the species should in fact be listed. During this candidacy period the Department needs all of the scientific information that is available to make the most scientifically sound recommendation to the Commission and the Commission to make the most scientifically sound final listing decision. Black-backed Woodpecker studies conducted pursuant to Department issued scientific collecting permits, which could occur throughout the species' range, must be allowed to commence or continue to ensure a complete data set. 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 the Black-backed Woodpecker. If these activities are not allowed to continue, adequate evaluation and protection of the Black-backed Woodpecker 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 scientifc activities while providing safeguards to protect the Black-backed Woodpecker, including continued regulatory oversight by the Department pursuant to its authority to condition scientifc collecting permits. (See Cal. Cade Regs, tit. 14, § C50.) Therefore, the Commission finds that impacts to management, education, and scientific activities caused by designating the Black-backed Woodpecker as a candidate species, constitute an emergency under the APA requiring immediate action. B. Actions to Protect, Restore, Conserve, or Enhance Section 749.7, subdivision {a)(2), authorizes take of the Black-backed Woodpecker 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 the Black-backed Woodpecker 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 adopt Section 749.7, subdivision (a)(2}, is necessary to conserve, preserve, or protect of fish and wildlife resources, and to presen-e the general welfare. Without Section 749.7, subdivision (a)(2), take of the Black-backed Woodpecker incidental to otherwise lawful activities to protect, restore, conserve, or enhance Page 4 of 15 catastrophic wildland fires. The role of the emergency regulation in allowing activities related to fuel (vegetation} control; and fire suppression and response continues to fall 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, § 21080; see also CEQA Guidelines, § 15359.} The emergency regulation 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 with 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 activi#ies, caused by designating the Black-backed Woodpecker as a candidate species, constitute an emergency under the APA requiring immediate action. D. Forest Practices and Timber Harvest Activities Section 749.7, subdivision {a)(4}, authorizes incidental take of the Black-backed Woodpecker incidental to otherwise lawful timber harvest activities. As explained below, the Commission finds that the designation of the Black-backed Woodpecker 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 finds that immediate emergency action to adopt Section 749.7, subdivision (a)(4), 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 Ne~edly 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, § 21000 et seq.). Without Section 749.7, subdivision {a)(4), many existing, already approved, otherwise lawful timber harvest operations in the Black-backed Woodpecker range could not move forward absent additional review and re-approval. Likewise, without Section 749.7, many already-approved, otherwise lawful timber harvest operations and activities would require aproject-specific authorization Page 6 of 15 V. Reporting As discussed in III above, it is vital that during this candidacy period detections and observations of the Black-backed Woodpecker be reported to the Department so it can have the most complete information possible as it prepares its recommendation to the Commission on whether to recommend listing the species, and for the Commission that must make the ul#imate decision to list or not. 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 the Black-backed Woodpecker under CESA. This regulation includes conditions designed to protect the species for all of the activities covered. The Commission believes the activities permitted under this regulation will result in very limited take and will not likely jeopardize the continued existence of the species. The Commission finds, in this respect, that the regulation subject to this determination will ensure appropriate interim protections for the Black backed Woodpecker 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. VI. Express Finding of Emergency Pursuant to the authority vested in the Commission by FGC 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 of fsh and wildlife resources, or for the immediate preservation of the general welfare The Commission specifically finds that the adoption of this regulation will allow activities that may affect the Black-backed Woodpecker to continue during the candidacy period as long as those activities are conducted in a manner consistent with the protections specified in this regulation. VII. Authority and Reference Citations Authority: FGC Sections 200, 202, 240, and 2084. Reference: FGC Sections 200, 202, 240, 2080, 2084, and 2085. VIII. Informative Digest The sections below describe laws relating to fisting 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 Page 8 of 15 The Commission's acceptance of a petition initiates a 12-month review of the species' status by the Department, pursuant to FGC 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, § 2074.6.} The Commission must schedule the petition for final consideration at its next available meeting after receiving the Department's report. (ld., § 2076.) In its final action on the petition, the Commission is required to decide whether listing the species.as threatened or endangered "is warranted" or "is not warranted." If listing is not warranted in the Commission's judgment, take of the former candidate species is no longer prohibited under CESA. {Id., § 2075.5.) B. Effect of the Emergency Action Section 749.7 of Title 14 of the California Code of Regulations would authorize take, as defined by Fish and Game Cade section 86, of the Black-backed Woodpecker during its candidacy subject to the following terms and conditions: (a) Take Authorization. Based upon the above finding, the Commission authorizes the take of the Black-backed Woodpecker during the candidacy period subject to the terms and conditions herein. {1) Scientific, Education or Management Activities. Take of the Black-backed Woodpecker incidental to scientific, education, or management activities is authorized. (2) Actions to Protect, Restore, Conserve or Enhance. Take of the Black-backed Woodpecker incidental to otherwise lawful activities initiated to protect, restore, conserve or enhance a state or federally threatened or endangered species and its habitat is authorized. {3) Wildland Fire Response and Related Vegetation Management. Take of the Black-backed Woodpecker incidental to otherwise (awful wildland fire prevention, response, and suppression activities, including related vegetation Page 10 of 16 Any person, individual, organization, or public agency for which incidental take of the Black-backed Woodpecker is authorized pursuant to subdivision (a) shall report observations and detections of the Black- backed Woodpecker, including take, to the Department of Fish and Game an asemi-annual basis during the candidacy period. Observations, detections, and take of the Black-backed Woodpecker pursuant to this subdivision for the previous six months shall be reported by the first day of March and the first day of September, respectively, during the candidacy period for the Black-backed Woodpecker. Observations, detections, and take shall be reported pursuant to this subdivision to the Department of Fish and Game, Wildlife Branch, Attn: Black-backed Woodpecker Observations, 1812 Ninth St., Sacramento, CA 95811, or by email submission to wildlifestrategy@dfg.ca.gov. Information reported to the Department pursuant to this subdivision shall include as available: a contact name; the date and location (GPS coordinates preferred) of the observation, detection, or take; and details regarding the animal(s) observed. (d} Additions, Modifications, or Revocation. (1) Incidental take of the Black-backed Woodpecker from activities not addressed in this section may be authorized during the candidacy period 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 ar project may cause jeopardy to the continued existence of the Black-backed Woodpecker. C. Existing, Comparable Federal Regulations or Statutes The Federal Endangered Species Act (FESA} (16 U.S.C. § 1531 et seq.) includes a listing process that is comparable to the listing process under CESA, except that take of a candidate species is not prohibited under FESA. The Black- backed Woodpecker is not listed as an endangered or threatened species under FESA. FESA Section 4(d) (16 U.S.C. § 1533 (d}) is similar in some respects to FGC 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 Page 12 of 15 amount. In the absence of the emergency regulation, the Department would have to authorize take of the Black-backed Woodpecker on aproject-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 timber operations on land already managed for timber harvest would be delayed or cancelled entirely, as would vegetation management, wildfire suppression and response and research and monitoring while awaiting the necessary CESA authorization. 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. (c) Programs Mandated on Local Agencies or School Districts: The Commission has determined that the adoption of Section 749.7 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 Code; and (e} Effect on Housing Costs: The Commission has determined that the adoption of Section 749.7 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 nat affect housing costs. (f) Costs or Savings to State Agencies The Commission has determined that adoption of Section 749.7 of Title 14 of the California Code of Regulations as an emergency regulation pursuant to FGC 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 the Black-backed Woodpecker on aproject-by-project basis, which is both time-consuming and costly for both the Department in processing and authorizing such take, as wel! as to state agencies seeking take authorization. Absent adoption of the emergency regulation, state and local agencies, and the regulated community will bear the timing and process costs associated with project-by-project permitting by the Department. Regulations implementing CESA contemplate a roughly six month review by the Department for proposed ITPs. Appropriate CEQA review for individual ITPs also affects the timing of permits issued by the Department. (Cal. Code Regs., tit. 14, §§ 783.3, 753.5.) Page 14 of 15 {4) Forest Practices and Timber Harvest. Take of the Black-backed wood ecker incidental to otherwise lawful timber operations is authorized. For purposes of this- authorization, an otherwise lawful timber o eration shall mean a timber o eration au#horized or otherwise ermitted b the Z'Ber Ne~edl 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. {b) Application of the California Environmental_Quality Act. Consistent with the California Environmental Quality Act (Division 13 {comm_encing with Section 21000 of the Public Resources Code if a state ar local a enc determines that an activi identified in subdivision a will result in a si nificant im act on the Black- backed woad ecker the a enc should not a rove the activit as ro osed if there are feasible alternatives or feasible miti ation measures available which would substantiall lessen the si nificant im act on the Black-backed wood ecker. See Pub. Resources Code 21002. Measures or ro'ect than es re aired as art of a state or local a enc authorization to address si nificant im acts on the Black-backed wood ecker ma include measures to conserve the s ecies includin avoidance or reservation of habitat attributes relied on b the s ecies. Volunta measures to aid in the conservation of the Black-backed woodpecker shall also be encouraged. ~c) Repartin_g~ Anv person. individual. oraanization. or r7ublic aaencv for which incidental take of the Black-backed wood ecker is authorized ursuant to subdivision a shall re art observations and detections of the Black-backed wood ecker includin take to the De artment of Fish and Game on asemi-annual basis durin the candidac eriod. Observations detections and take of the Black-backed wood ecker ursuant to this subdivision shall be reported on asemi-annual basis during- the candidacy_periad for the Black-backed wood ecker. Observations detections and take shall be re orted ursuant to this subdivision to the De artment of Fish and Game Wildlife Branch Attn: Black-backed Wood ecker Observations 1812 Ninth St. Sacramento CA 95814 or b date and location GPS coordinates referred of the observation detection or take• and details .regarding the animal(~_observed. ~d) Additions, Modifications, or Revocation. ~1) Incidental take of the Black-backed woodpecker 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-