REGULATORY AGENCY ACTION

allowed to continue tankering shipments area does not qualify for ecological re- liability owed to the state of California by (about one tanker trip per week) until Jan- serve status for harbor seals because they leaking storage tank owners who have de- uary 1, 1996. After that date, Chevron and are neither endangered nor threatened and clared bankruptcy. The Commission de- the other offshore oil producers near Santa do not depend upon habitat of Seal Rock nied Hill's petition, simultaneously assert- Barbara (Texaco and Exxon) will have to for their survival; and other less restrictive ing that it lacks authority to adopt the ship the oil by pipeline. From a group of alternatives are available to discourage proposed regulations because the dis- pipeline alternatives (including construc- public disturbance of seals when they charge of liquid waste that will or could tion of a new pipeline), the oil producers "haul out" onto the rock. However, based affect the quality of the surface or under- have selected the existing All American on expert testimony that the area may be ground water resources of the state is pri- Pipeline Company (AAPC); Commission a rookery and the public's presence may marily within the jurisdiction of the Water staff reported that the implementation of adversely impact seals during breeding Resources Control Board, and that the the AAPC alternative would require con- season, the permit prohibits swimming, proposed regulations would duplicate ex- necting a final segment of pipeline to the body surfing, snorkeling, scuba diving, isting Coastal Commission authority al- refineries in Los Angeles. The oil produc- tidepool viewing, and other recreational ready contained in the Coastal Act and the ers are still analyzing the construction cost activities within the reserve area during a Commission's regulations. The Commis- of this additional section of pipeline. five-year period. Permit conditions re- sion also stated that it lacks the financial At its November 16 meeting in San quire the City of San Diego to submit resources necessary to administer the pro- Diego, the Commission voted 6-0 to annual monitoring reports, including re- posed regulations. adopt revised findings and conditions in sults of studies on the behavior and breed- At its December 16 meeting, the Com- support of its April 1993 approval of a ing habits of the harbor seals and whether mission postponed a final ruling on a pro- permit for an 83-lot residential subdivi- a rookery exists within the limits of the posed project to build a state-of-the-art sion, a golf course, habitat preserves, proposed marine reserve; obtain approval seawall to protect six blufftop homes in parks, and trails in Rancho Palos Verdes. from the State Lands Commission that the Encinitas, saying it wanted more property [13:2&3 CRLR 184] The major issue fac- proposed five-year marine mammal re- owners involved and a more comprehens- ing the Commission was the project's con- serve is consistent with applicable tide- ive plan developed to protect both the formance with the provisions of the City lands grants and the public trust; and sub- upper and lower portions of the 100-foot- of Rancho Palos Verdes' LCP and the pub- mit plans indicating the proposed reserve high bluff. Although the Commission and lic access and recreation policies of the area does not include any sandy beach its planning staff acknowledged the needs Coastal Act. These issues were compli- areas and is confined solely to open of property owners to protect their homes, cated by the presence of a threatened spe- coastal waters and offshore areas. they expressed reluctance to approve dis- cies, the California gnatcatcher, and ex- At its November 19 meeting, the Com- contiguous walls with several end points, tensive testimony regarding the history of mission conditionally approved the City which can do more damage to a bluff than public use of the property. The Commis- of Dana Point's permit application to re- having no seawall at all. sion heard evidence regarding the eco- move 44,000 tons of debris resulting from nomic viability of the project, the design a February 1993 landslide that covered a * FUTURE MEETINGS constraints of a championship-level pub- 300-foot stretch of Pacific Coast High- May 10-13 in Los Angeles. lic golf course, the extent of public rights way, and build a caisson retaining wall June 7-10 in Monterey. on the property, and the value and location 300 feet long and 25 feet high to prevent July 12-15 in Huntington Beach. of the habitat on the property. In adopting additional landslide material from falling August 9-12 in Long Beach. its revised findings, the Commission also onto the highway. In addition to the high- September 13-16 in Eureka. took note of the applicants' plans to pro- way blockage in Dana Point, the landslide vide public access and amenities, to re- also damaged five homes in San Cle- store twenty acres of vegetation on the mente. Resolution of the problem thus FISH AND GAME adjoining county-owned Shoreline Park, involved two separate planning processes protect existing public access on that park, and jurisdictions. For the landslide portion COMMISSION and restore ten acres of a 95-acre publicly within the City of Dana Point, the City Executive Director: dedicated landslide area just inland of the issued a coastal development permit, Robert R. Treanor coastal zone. Environmentalists at the which was subsequently appealed to the (916) 653-9683 meeting stated that the Commission ap- Coastal Commission. For the landslide proved the permit without fully examining portion within the City of San Clemente, Tjhe Fish and Game Commission (FGC), the environmental and public access as- the City of Dana Point applied directly to created in section 20 of Article IV of pects that were part of the record. the Coastal Commission for a coastal de- the California Constitution, is the At its November 18 meeting, the Com- velopment permit because the City of San policymaking board of the Department of mission approved a controversial coastal Clemente does not have a certified LCP. Fish and Game (DFG). The five-member development permit, with special condi- Also at its November meeting, the body promulgates policies and regulations tions, to establish a temporary 1.41-acre Commission considered a petition for consistent with the powers and obligations marine mammal reserve encompassing rulemaking filed by San Diego resident conferred by state legislation in Fish and Seal Rock in La Jolla and the surrounding Charles Hill. The petition asked the Com- Game Code section 101 et seq. Each mem- open waters extending easterly to the toe mission to adopt regulations which would ber is appointed by the Governor to a of the coastal bluffs, including a small part prohibit the discharge of toxic substances six-year term. Whereas the original char- of Shell Beach. Commission staff recom- or waste from storage tanks at energy fa- ter of FGC was to "provide for reasonably mended that the Commission deny the cilities (e.g., gas stations) within the structured taking of California's fish and permit, contending that the proposed de- coastal zone, require the Commission to game," FGC is now responsible for deter- velopment interferes with the public's assess damage to the coastal zone caused mining hunting and fishing season dates right of access to the sea; the Seal Rock by leaking storage tanks, and calculate the and regulations, setting license fees for

California Regulatory Law Reporter • Vol. 14, No. I (Winter 1994) 14 REGULATORY AGENCY ACTION

fish and game taking, listing endangered December 8 formally endorsed the Wilson The federal government's adoption of and threatened species, granting permits administration's Natural Communities the rule reflects a new "partnership" be- to conduct otherwise prohibited activities Conservation Planning (NCCP) pilot proj- tween the state and federal governments (e.g., scientific taking of protected species ect, which is being implemented by DFG in on sensitive environmental issues. Babbitt for research), and acquiring and maintain- conjunction with local jurisdictions and the called the NCCP program "a precedent- ing lands needed for habitat conservation. federal government to preserve the coastal setting experiment" and stated, "The alter- FGC's regulations are codified in Division sage scrub (CSS) habitat of the California native is a train wreck that results in stale- I, Title 14 of the California Code of Reg- gnatcatcher. [13:4 CRLR 188; 13:2&3 mate and no development, and ten years ulations (CCR). CRLR 188] of litigation like we've had in the forests Created in 1951 pursuant to Fish and The NCCP program (which is codified of the Pacific Northwest." Game Code section 700 et seq., DFG man- at Fish and Game Code section 2800 et In other NCCP program news, 33 local ages California's fish and wildlife re- seq.) is designed to be a voluntary, nego- jurisdictions and 39 major private land- sources (both animal and plant) under the tiated, consensus-driven alternative to the owners have enrolled over one million direction of FGC. As part of the state sometimes harsh consequences of the list- CSS acres in the NCCP program as of Resources Agency, DFG regulates recrea- ing of a species as endangered or threat- December 15. At this writing, DFG's tional activities such as sport fishing, ened under the federal Endangered Spe- NCCP staff is monitoring the mitigation hunting, guide services, and hunting club cies Act (ESA) or the California Endan- measures being discussed by the local, operations. The Department also controls gered Species Act (CESA). The goals of state, and federal governments in response commercial fishing, fish processing, trap- the program are to encourage long-term to the wildfires which scorched southern ping, mining, and gamebird breeding. local and regional land use planning which California in late October and early No- In addition, DFG serves an informa- avoids the precipitous declines in species' vember; approximately 20,000 CSS acres tional function. The Department procures populations which result in ESA/CESA list- were burned in the fires. DFG's input is and evaluates biological data to monitor ings, establish habitat reserves which pro- essential to ensure that CSS habitat lands the health of wildlife populations and hab- mote the preservation and proliferation of are not negatively impacted by short- or itats. The Department uses this informa- entire ecosystems (instead ofjust one declin- long-term mitigation actions; activities tion to formulate proposed legislation as ing species), and permit reasonable develop- such as seeding and vegetation manage- well as the regulations which are pre- ment on non-enrolled lands by participating ment could significantly affect the devel- sented to the Fish and Game Commission. landowners. Both the state and federal gov- opment of conservation reserves under the As part of the management of wildlife ernments have expressed hope that the NCCP program. resources, DFG maintains fish hatcheries NCCP concept-which appears to be suc- OAL Rejects FGC's Delisting of Mo- for recreational fishing, sustains game and ceeding in the CSS context--can be applied have Ground Squirrel. On November 3, waterfowl populations, and protects land to other environment-vs.-economy issues, the Office of Administrative Law (OAL) and water habitats. DFG manages over including the ongoing struggles to save the rejected FGC's proposed amendment to 570,000 acres of land, 5,000 lakes and northern spotted owl in the Pacific North- section 670.5, Title 14 of the CCR, which reservoirs, 30,000 miles of streams and west (see below) and declining fish popula- would have removed the Mohave ground rivers, and 1,300 miles of coastline. Over tions in California's San Francisco Bay/Sac- squirrel from the list of threatened species 648 species and subspecies of birds and ramento-San Joaquin Delta Estuary (see under CESA. [13:4 CRLR 176] OAL dis- mammals and 175 species and subspecies agency report on WATER RESOURCES approved FGC's unprecedented decision of fish, amphibians, and reptiles are under CONTROL BOARD for related discus- to delist because its final statement of rea- DFG's protection. sion). sons failed to include a summary of and The Department's revenues come from In March 1993, the federal government response to all comments submitted to the several sources, the largest of which is the officially listed the California gnatcatcher Commission during the public comment sale of hunting and fishing licenses and as a threatened species, thus asserting fed- period. Thus, the squirrel will remain commercial fishing privilege taxes. Fed- eral jurisdiction over the bird, its habitat, listed as threatened until FGC corrects the eral taxes on fish and game equipment, and activities which would harm either, deficiencies in its rulemaking record. court fines on fish and game law violators, and technically triggering the prohibitions Although the Commission received state contributions, and public donations and protections of the ESA. During his numerous comments at public hearings provide the remaining funds. Some of the December news conference, Secretary and during the comment periods opposing state revenues come from the Environ- Babbitt announced Interior's adoption of the removal of the squirrel from the threat- mental Protection Program through the Rule 4(d), which essentially creates an ened list, the final statement of reasons sale of personalized automobile license exemption to the ESA for southern Cali- prepared by FGC lumped all comments plates. fornia landowners who have enrolled CSS opposing the proposed delisting together DFG contains an independent Wildlife lands and are participating in the NCCP and summarized them as follows: "Rec- Conservation Board which has separate program. The exemption will permit par- ommendation to retain the Mohave funding and authority. Only some of its ticipating landowners to develop certain ground squirrel as a listed species." FGC's activities relate to the Department. It is CSS lands without violating the ESA, so response to these comments was a con- primarily concerned with the creation of long as they comply with the NCCP clusory paragraph stating that the petition recreation areas in order to restore, protect program's Planning and Conservation to delist provided "sufficient information and preserve wildlife. Guidelines (which are incorporated into to indicate that the continued existence of Rule 4(d), and which currently restrict the Mohave ground squirrel is no longer U MAJOR PROJECTS development to 5% of southern California threatened, nor is it likely to become an Federal Government Endorses NCCP CSS lands) and the program continues to endangered species in the foreseeable fu- Program. In what he characterized as an meet with federal approval. Developers ture." FGC's final statement included "historic" and "extraordinary" step, U.S. who do not participate in the NCCP pro- findings explaining its action, but did not Secretary of the Interior Brce Babbitt on gram are fully subject to the ESA. address specific challenges raised in the

California Regulatory Law Reporter ° Vol. 14, No. 1 (Winter 1994) REGULATORY AGENCY ACTION

comments. Government Code section Big Creek in Monterey County; off Van- fish, ten-inch limit on rainbow trout taken II 346.7(b)(3) requires the final statement denberg Air Force Base in Santa Barbara in the Upper Kern River. of reasons to include a summary of each County; and off Big Sycamore Canyon in -Changes to section 7.50(b)(I 17)(B) will objection or recommendation made dur- Ventura County. OAL approved new sec- place a no-fish limit on rainbow trout taken ing the comment period, along with an tion 630.5 on December 3 1. from the Merced River from the Yosemite explanation of why FGC made no change In Opinion No. 92-302 (July 22, 1992), Park boundary to the Foresta Bridge. How- in response to the comment. Because FGC the Attorney General found that Proposi- ever, under new section 7.50(b)(1 17)(C), the failed to specifically respond to the com- tion 132 restricts activity in the new ma- Merced River from the Foresta Bridge ments made, OAL rejected the proposed rine reserves to scientific research, to the downstream to Lake McClure will be open regulatory change. exclusion of all other human activities. to winter angling with a two-trout limit. The reprieve for the squirrel may only [12:4 CRLR 205] FGC is authorized to Section 7.50(b)(156) will reduce the daily be temporary, as FGC has 120 days in approve grants to colleges, universities, bag limit from three fish to one and ban which to cure the deficiencies and resub- and other bonafide research organizations barbed hooks on the Sacramento River be- mit the rulemaking file to OAL. In the after January 1, 1995, to conduct research tween Keswick Dam and the Deschutes meantime, Mountain Lion Foundation, et in the reserves. Bridge. al. v California Fish and Game Commis- 1994-95 Sport Fishing Season Reg- -Amendments to section 28.80 will sion, et al., No. 953860, is still pending in ulations. At its December meeting, FGC allow the take of certain types of fish San Francisco Superior Court; the action adopted its sport fishing regulations for (herring, Pacific staghorn sculpin, shiner brought by five environmental groups the 1994-95 season. Among others, the surfperch, surfsmelt, and anchovies) with challenges FGC's authority to grant Kern changes to last year's regulations include baited hoop nets no greater than 36 inches County's petition to delist the squirrel, the following: in diameter, and add topsmelt to the list of contending that it fails to contain the in- -Section 5.00, Title 14 of the CCR, fish that may be taken by net. formation required by CESA; FGC vio- will be amended to provide that no black At this writing, FGC staff is preparing lated the procedure for delisting set forth bass may be taken on the lower Colorado the rulemaking file on the 1994-95 sport in CESA; and FGC violated the California River under 13 inches, and impose a bag fishing regulations for submission to Environmental Quality Act (CEQA) by limit of six fish. On Ruth Lake, the new OAL. failing to prepare an environmental im- bag limit is two black bass with a mini- Ban on Recreational Take of White pact report, an initial study, or a negative mum size of 15 inches. On Letts Lake, the Shark. Also at its December meeting, declaration. [13:4 CRLR 176] 12-inch minimum size limit has been re- FGC held a public hearing on its proposal Timber Firms Seek Delisting of moved, but the five-fish bag limit remains to add section 28.06 and amend sections Northern Spotted Owl. The California the same. Lower Otay Lake will now have 27.60 and 28.95, Title 14 of the CCR, to timber industry is taking notice of FGC's a 15-inch minimum on largemouth bass. prohibit the recreational take of white attempt to delist the Mohave ground squir- Fish Slough will now be open to year- shark after January 1, in compliance with rel by seeking to eliminate federal threat- round black bass fishing. Minimum size AB 522 (Hauser) (Chapter 1174, Statutes ened-species protection for the northern restrictions at the Plaskett Meadow Lakes of 1993). [13:4 CRLR 180] White sharks spotted owl. [10:4 CRLR 157-58] On Oc- will be removed. are apex predators (at the top of the food tober 6, the timber industry petitioned the -An amendment to section 5.30 will in- chain) which often feed on seals and sea U.S. Fish and Wildlife Service (USFWS) stitute a 25-fish bag limit on crappie taken in lions in areas where these marine mam- to delist the northern spotted owl from the Black Butte Lake and Lake Britton. mals concentrate. White sharks are not list of threatened species under the ESA in -Changes to section 5.75 impose a bag considered abundant in coastal waters, California, leaving it protected in Oregon limit of ten striped bass taken in Castaic, and are thought to be vulnerable to over- and Washington. USFWS, which has one Silverwood, and Pyramid lakes, in order harvest in localized areas frequented by year to make a decision, has never granted to protect native populations of black bass seals and sea lions. The proposed regula- a request to remove an animal from federal in these lakes. tions will amend FGC's sport fishing reg- protection. However, some biologists at -Amendments to sections 7.00(a)(5) ulations to specify that no white shark may the agency believe that the owls and the and 7.00(c)(4) will limit fishers to a max- be taken under authority of a sport fishing old-growth forests they inhabit are in bet- imum of two trout and/or salmon, only one license after January 1, 1994. At this writ- ter shape in northern California than in the of which may exceed 22 inches in length, ing, FGC is scheduled to hold an addi- other two states. Whether the spotted owls in rivers and streams flowing directly to tional hearing on the proposed regulatory are strong enough to survive without gov- the ocean north of San Francisco. changes on January 4. ernment protection of their habitat re- -Changes to sections 7.00(b)(4) and Commercial Sea Urchin Fishing mains to be seen. 7.50(b)(67)(B) will establish a two-trout Permits. On December 24, FGC pub- Creation of Four New Marine Eco- limit for all waters of the Fall River Valley. lished notice of its intent to amend section logical Reserves. At its November 5 This will combat the current problem of 120.7, Title 14 of the CCR, which sets meeting, FGC unanimously approved the different limits on lakes that are part of the forth the classes of various permits, permit addition of section 630.5 to Title 14 of the Valley and can be accessed by boat with- qualifications, permit renewal and issu- CCR, which establishes four new marine out leaving the water. Enforcement diffi- ance requirements and duration, and other ecological reserves under Proposition culties have been encountered as anglers matters pertaining to the revocable, non- 132, the Marine Resources Protection Act claim they caught the fish in question in a transferable permit needed to take sea ur- of 1990. 113:4 CRLR 178] Proposition lake with a higher bag limit. chin for commercial purposes under Fish 132 requires FGC to create the new re- -New section 7.50(b)(86)(C) would and Game Code section 9054. The pro- serves by January I, 1994. The four re- open a section of the Upper Kern River to posed regulatory changes will: serves are roughly two square miles in size winter angling on a catch-and-release -eliminate the sea urchin apprentice and will be located at or near King Range basis, using barbless hooks. Further, new permit and upgrade all existing sea urchin (Punta Gorda) off Humboldt County; off section 7.50(b)(86)(D) will impose a two- apprentice permit holders to diver status;

California Regulatory Law Reporter • Vol. 14, No. 1 (Winter 1994) 14 REGULATORY AGENCY ACTION

-create a new, unrestricted, low-cost be released in good condition in the area enhancement projects, sea urchin studies, sea urchin crew-member permit, which they were trapped. The proposed change abalone restoration and enhancement pro- may be used to provide proof of initial would require DFG to issue such a permit grams, gill and trammel net use, aquacul- qualifying experience for persons wishing when it determines that the activities ture diseases, aquaculture industry mat- to enter the drawing for any new sea ur- which temporarily uses the mammal will ters, and interagency matters relating to chin diving permits which annually may not pose a threat to the public welfare or aquaculture. As introduced February 25, become available; the wildlife resource and the activity will this bill would require the Director, in- -establish a goal of 300 total sea urchin be conducted in a humane manner to the stead, to appoint four advisory committees permits, and a ratio of one new permit for captured mammal. [13:4 CRLR 178] At for the purpose of reviewing and advising each ten nonrenewed permits until the this writing, the rulemaking file on this DFG regarding policy and program activ- goal is reached, when the ratio will be proposed change is still pending at OAL. ities, as specified. The members of the one-to-one; - Commercial Herring Fishery Sea- advisory committees would serve without -limit the time for appeal of denial of son. On October 28, OAL approved compensation but would be paid their rea- permit issuance to one year following the FGC's amendments to sections 163 and sonable and necessary expenses incurred close of the last permit year in which the 164, Title 14 of the CCR, which establish as a result of attending meetings of the appellant held a valid sea urchin permit; rules and quotas for the 1993-94 commer- advisory committees. The bill would also -eliminate the trigger for the red sea cial herring fishing season. [13:4 CRLR require the Marine and Anadromous Fish- urchin fishery closure during the second 177] eries Advisory Committee, established full week of each month from May . 1993-94 Migratory Waterfowl Sea- under the bill, instead of the Commercial through September; and son Regulations. On November 4, OAL Salmon Trollers Advisory Committee, to -clarify the boundaries of the Gerstle approved FGC's amendments to sections recommend programs and a budget for ex- Cove closed sea urchin fishing area in 502, 507.1, 509, and 600.4, Title 14 of the penditures from the Commercial Salmon Sonoma County. CCR; this regulatory action establishes Stamp Account; require a subcommittee of At this writing, FGC is scheduled to rules and dates for the 1993-94 migratory that Advisory Committee to serve as the hold public hearings on these proposed waterfowl season in California. [13:4 Salmon Fishing Review Board; and require regulatory changes at its February and CRLR 177] the Director to consult with industry repre- March meetings. -Additional Identification on Hunt- sentatives, academic scientists and other Commission to Require Display of ing and Fishing License Applications. At public agencies, instead of the Aquaculture Fishing Licenses. On November 12, FGC its October 8 meeting, FGC approved a Disease Committee, before recommending published notice of its intent to amend proposed amendment to section 705, Title regulations to FGC for specified disease section 700, Title 14 of the CCR, to require 14 of the CCR, to require applicants to control purposes. anglers to display their fishing licenses disclose their driver's license or identifi- Existing law prohibits financing a re- while fishing, so that the license is unob- cation card number on hunting and fishing search project from the Ocean Fishery Re- structed from view. FGC hopes this regu- license applications; this information search and Hatchery Account unless it is lation will improve compliance with the would also appear on the license itself. approved by both the Director and a ma- license requirement. According to FGC, [13:4 CRLR 177-78] At this writing, staff jority of the members of the Ocean Re- noncompliance with the state's fishing li- is completing the rulemaking file on the sources Enhancement and Hatchery Advi- cense requirement costs DFG $4.1 to proposed amendment for submission to sory Panel. This bill would terminate the $14.3 million annually; 13%-45% of Cal- OAL. existence of that Panel and prohibit the ifornia anglers fish without purchasing a - Commission to Ban Zebra Mussels financing of a research project from that license. If license compliance in Califor- in California. At its November 5 meeting, account unless funds have been appropri- nia is increased by only 6.5%, DFG will FGC adopted a proposed amendment to ated by the legislature for the project. realize approximately $2.1 million annu- section 671, Title 14 of the CCR, to add Existing law, until January 1, 1994, ally from this proposal. At this writing, zebra mussels to the existing list of species provides for the issuance of lifetime FGC is scheduled to hold a public hearing which may not be lawfully imported, pos- sportfishing and sportsperson's licenses on this proposal at its January meeting. sessed, or transported alive in California. for specified fees. This bill would con- Update on Other Regulatory Changes. This prolific mussel, which has spread tinue those existing laws beyond January The following is a status update on other rapidly throughout the Great Lakes, has 1, 1994, by deleting the repeal date. The regulatory changes proposed and/or fouled municipal electric power genera- bill would require DFG to establish the adopted by FGC in recent months: tion and industrial water intake facilities, fees for subsequent years in an amount not * Delta Smelt Listed as Threatened. disrupted food webs and ecosystems, and to exceed the adjustment based on Depart- On November 9, OAL approved FGC's interfered with sport and commercial fish- ment costs, as prescribed. amendment to section 670.5, Title 14 of ing, navigation, recreational boating, beach Existing law authorizes DFG to issue the CCR, which lists the Delta smelt as a use, and irrigation throughout the area of licenses, license stamps, punch cards, and threatened species under CESA. [13:4 infestation. [13:4 CRLR 178] At this writ- license tags through authorized license CRLR 178; 13:2&3 CRLR 177, 189] ing, staff is completing the rulemaking file agents. Existing law prohibits the license - Special Permit for Temporary Pos- on the proposed amendment for submission agent from collecting less from the license session of Mammals to Train Dogs. Last to OAL. applicant than the fee prescribed in the August, FGC adopted a proposed amend- Fish and Game Code or regulations ment to section 251.5, Title 14 of the CCR, U LEGISLATION adopted thereunder. This bill would, in- which currently authorizes DFG to issue a SB 492 (Kelley). Existing law autho- stead, prohibit the license agent from col- permit to capture and temporarily possess rizes the DFG Director to appoint commit- lecting less from the license applicant than a live nongame, furbearing mammal for tees to advise the Director on humane care 10% of the fee prescribed in the Fish and dog training and other purposes. Mam- of wild animals, cats other than house cats, Game Code or regulations adopted there- mals possessed under such a permit must specified research projects, ocean fishing under. [S. NR&W]

148 California Regulatory Law Reporter - Vol. 14, No. 1 (Winter 1994) REGULATORY AGENCY ACTION

SB 824 (Hayden). Under the Z'berg- are causing injury, damage, or destruction officers in the conduct of official business. Nejedly Forest Practice Act of 1973, a to livestock or other property or to issue a [13:4 CRLR 178; 13:2&3 CRLR 189] [S. person is prohibited from conducting tim- permit confirming the taking of a bobcat NR&W1 ber operations unless a timber harvesting under specified conditions. [S. NR&W1 AB 1222 (Cortese). The California plan prepared by a registered professional AB 1390 (Epple). Existing law autho- Wildlife Protection Act of 1990 creates the forester has been submitted to the Califor- rizes FGC to limit the number of permits Habitat Conservation Fund, which is re- nia Department of Forestry and Fire Pro- that may be issued to take sea urchins. quired to be used for, among other pur- tection (CDF) and reviewed by the CDF Existing law provides fora fee of $250 for poses, the acquisition, restoration, or en- Director to determine if the plan is in a sea urchin permit until April 1, 1993, and hancement of aquatic habitat for spawning conformance with the Act and the rules $330 thereafter. As introduced March 3, and rearing anadromous salmonids and and regulations of the state Board of For- this bill would, under specified condi- trout resources. The Act generally requires estry. Upon receipt of the plan, CDF is tions, permit the holder of a sea urchin a four-fifths vote of the legislature for required to place the plan, or a true copy, diver permit to designate an assistant with amendment, which amendment is re- in a file available for public inspection in the approval of the DFG Director. The bill quired to be consistent with and further the the county in which timber operations are would authorize the assistant to take or purposes of the Act. As amended July 15, proposed under the plan, and to transmit a assist in the taking of sea urchin when the this bill would include the purchase of copy of the plan to DFG, the appropriate assistant is in the presence of the permit- water to augment streamflows as a means California regional water quality control tee; provide for a review of the approval of acquisition, restoration, or enhance- board (RWQCB), the county planning of the assistant every three years; provide ment. agency, and, if within its jurisdiction, the for revocation, suspension, or other action Existing law requires the beneficial Tahoe Regional Planning Agency, and to related to the sea urchin permit if the as- use of water, including, under specific cir- invite, consider, and respond in writing to sistant commits specified violations; re- cumstances, the reservation of water to any comments received from those agen- quire the payment of a fee by the assistant instream uses to preserve and enhance fish cies. As amended April 12, this bill would in the same amount as for a permittee; and and wildlife resources. Existing law re- require the Board of Forestry to adopt any require the assistant to carry proof of pay- quires the DFG Director, in consultation mitigation measures that are proposed by ment whenever conducting activities pur- with specified persons, to prepare pro- DFG or a RWQCB unless CDF demon- suant to the bill. [S. NR&W] posed streamflow requirements for each strates that its own proposed mitigation AB 899 (Costa). AB 3158 (Costa) stream or watercourse for which minimum measures would result in greater protec- (Chapter 1706, Statutes of 1990) requires flow levels need to be established to pro- tion for water and wildlife resources. DFG to establish and collect filing fees to tect stream-related fish and wildlife re- Under the Act, the Board of Forestry is cover Departmental costs of reviewing en- sources. Existing law authorizes the state required to adopt forest practice rules and vironmental documents relating to pro- Water Resources Control Board (WRCB) regulations. This bill would require the jects subject to CEQA in specified to approve any change associated with a Board to review recommendations for any amounts, and requires those fees for pro- water transfer, as specified, only if WRCB rule changes that are submitted to it by jects on federal lands unless explicitly pre- finds that the change may be made without DFG and a RWQCB at least twice each empted by federal law. [11:2 CRLR 156; unreasonably affecting, among other calendar year and to act on those recom- 10:4 CRLR 155] The law permits DFG to things, fish, wildlife, or other instream mendations within 120 days. [S. NR&W] collect $850 for reviewing EIRs and func- beneficial uses. The bill would require SB 825 (Hayden), as amended April tional equivalent programs, $1,250 for WRCB to establish and maintain a Regis- 12, would require all timber harvests negative declarations, and $850 for spec- try of Instream Flow Reservations and within ancient forests to be conducted in ified water applications. Proponents of Dedications to list all instream reserva- a manner that maintains a canopy structure this bill argue that these fees are excessive. tions and dedications; require WRCB to similar to that existing prior to harvest, As amended August 18, this bill would establish a procedure to allow any inter- that maintains at least 60% of the overs- repeal those provisions on the date that ested party to challenge the Board's deter- tory canopy closure, and which provides another statute becomes operative which mination to make, or fail to make, an entry corridors and connectivity for wildlife provides revenues in an amount sufficient into the Registry; and require the DFG which meet criteria developed by DFG. to support these environmental activities, Director, in developing the requirements [S. NR& W] or January 1, 1996, whichever is earlier. for each stream or watercourse, and SB 380 (Hayden). Under existing law, The bill would additionally require DFG WRCB, in making a finding whether a all mammals occurring naturally in Cali- to prepare and submit to the legislature water transfer will unreasonably affect fornia that are not game mammals, fully and the Governor on or before October 1, fish, wildlife, or other instream beneficial protected mammals, or fur-bearing mam- 1994, a report addressing specified as- uses, to take into account the sufficiency mals, are nongame mammals, and may not pects of the environmental programs of of streamflow for each stream or water- be taken or possessed except as provided the Department. [S. NR&W] course as reflected in the Registry. [S. in the Fish and Game Code or regulations SB 67 (Petris). Under existing law, it Appr] adopted under that Code. Bobcats are non- is unlawful to use dogs to hunt, pursue, or AB 1367 (Cortese). Under existing game mammals. Under those regulations, molest bears generally, except under a law, DFG is required to issue reduced fee a license tag or trapping license is required depredation permit issued by DFG or dur- hunting licenses to disabled veterans for a to take bobcats, except that depredating ing certain open seasons. As amended fee of $2, adjusted as specified. As bobcats may be taken at any time. As February 12, this bill would additionally amended April 12, this bill would change introduced February 23, this bill would prohibit the use of dogs to hunt, pursue, or that fee to $3, adjusted as specified. designate bobcats as a specially protected take black bears, except black bears taken Existing law defines upland game bird mammal and prohibit their taking, injury, pursuant to a depredation permit, pursuant species for purposes of the Fish and Game possession, or sale. The bill would allow to a depredation management plan Code. This bill would delete desert quail, DFG to issue a permit to take bobcats that adopted by FGC, or by federal or state sage hens, varieties of California and

California Regulatory Law Reporter * Vol. 14, No. I (Winter 1994) 14 REGULATORY AGENCY ACTION

mountain quail, and varieties of partridges five-year-old action brought by NRDC FGC took no action in response to this from that definition and would include and other environmental organizations, testimony, but promised to study the pa- blue grouse in that definition. clearing the way for further proceedings pers presented by those in opposition to Existing law requires a person who in the matter. The suit seeks to compel the the current eradication policy. takes a deer to punch out the date of the federal government, as owner of the Cen- kill on the license tag, attach part of the tag tral Valley Project and the Friant Dam on * FUTURE MEETINGS to the deer, keep it attached until fifteen the San Joaquin River, to comply with April 28 in Sacramento. days after the open season, and send the provisions of the California Fish and May 9-10 in Yreka. other part of the tag immediately to DFG Game Code requiring dam owners to June 16-17 in Bridgeport. after it has been countersigned. This bill maintain fish populations below a dam "in August 4-5 in San Luis Obispo. would instead require the person to clearly good condition." When the Friant Dam August 25-26 in South Lake Tahoe. indicate the date of the kill in the manner was completed in 1942, nearly all of the October 6-7 in Palm Springs. specified by DFG, attach one part to the San Joaquin River's flow was diverted November 3-4 in Monterey. deer, countersigned as specified, keep it down two canals for agricultural use, dec- December 1-2 in Eureka. attached until fifteen days after the open imating the River's population of spring- season, and immediately send the other run chinook salmon. NRDC brought the part of the tag to DFG. [A. W&M] lawsuit when the government attempted to SB 658 (Deddeh). Existing law re- renew the long-term water diversion con- BOARD OF FORESTRY quires that, after a petition is accepted by tracts in the late 1980s. In its motion to Executive Officer: FGC for consideration of a species for dismiss the matter, the government argued Dean Cromwell listing as a threatened species or as an that the issues raised in the lawsuit were (916) 653-8007 endangered species, the status of the can- rendered moot and preempted by Congress' didate species on the petition be reviewed passage of the Central Valley Project Im- T he Board of Forestry is a nine-member by DFG. Existing law requires DFG to provement Act in 1992. [13:1 CRLR 108- Board appointed to administer the provide a written report to FGC, and the 09] Judge Karlton disagreed, holding that Z'berg-Nejedly Forest Practice Act (FPA) Commission is required to schedule the the relevant state and federal laws are of 1973, Public Resources Code (PRC) petition for final consideration. As amended compatible: "The goals of both statutes section 4511 et seq. The Board, estab- May 19, this bill would, until January 1, are similar... [E]ach seek to protect, re- lished in PRC section 730 et seq., serves 1998, require FGC to direct DFG to con- store and enhance fish, wildlife and asso- to protect California's timber resources duct a collaborative phase during a species ciated habitats in the Central Valley." and to promote responsible timber har- candidacy period upon request of a di- NRDC now intends to ask Judge Karlton vesting. The Board adopts the Forest Prac- rectly affected party, as described. That to order the Bureau to release aqueduct tice Rules (FPR), codified in Division 1.5, phase would require a working group, as water into the San Joaquin River for fish Title 14 of the California Code of Regula- described, to review specified items relat- and wildlife. tions (CCR), and provides the California ing to the candidate species. The bill Department of Forestry and Fire Protec- would, until January 1, 1998, require DFG U RECENT MEETINGS tion (CDF) with policymaking guidance. to commence the preparation of, and make At its December meeting, FGC again Additionally, the Board oversees the ad- progress toward completion of, a recovery received testimony on DFG's controver- ministration of California's forest system plan of specified content for the species sial May 1993 decision to eradicate over and wildland fire protection system, sets proposed for listing during the period of 300 feral ducks found in Venice canals, as minimum statewide fire safe standards, candidacy and before final action by FGC. well as 200 more ducks in Chula Vista and and reviews safety elements of county [S. Appr] at the Franklin Reservoir in the Santa general plans. The Board's current mem- AB 778 (Harvey). Existing law re- Monica Mountains. The ducks were killed bers are: quires that every person over the age of 16 in an effort to halt the spread of viral Public: Franklin L. "Woody" Barnes, years obtain a fishing license in order to enteritis, a disease commonly fatal to James W. Culver, Robert C. Heald, Bonnie take fish in this state for any purpose other ducks; DFG hoped to stop the spread of Neely, and Richard Rogers. than profit. For certain fish, a license this disease to migratory waterfowl that Forest Products Industry: Thomas C. stamp is also required. As introduced Feb- use the Pacific flyway. The Pacific flyway Nelson, Tharon O'Dell, and Joseph Russ ruary 24, this bill would limit that require- is used by more than three million migra- IV. ment to persons over the age of 16 and tory waterfowl, and is the source of the Range Livestock Industry: Robert J. under the age of 70. The bill would also migratory waterfowl that are hunted in Kerstiens (Chair). exempt persons 70 years of age or more California. The FPA requires careful planning of from any license tag or stamp otherwise Dr. Gary Pearson, formerly a veterinar- every timber harvesting operation by a required to take fish, reptiles, or amphibia. ian with the U.S. Fish and Wildlife Service registered professional forester (RPF). The bill would require a person who is 70 and now in private practice in North Da- Before logging operations begin, each years of age or more to show proof of age kota, told the Commission that killing ex- logging company must retain an RPF to to a peace officer on demand when taking posed resident ducks is not the way to prepare a timber harvesting plan (THP). fish, reptiles, or amphibia. [A. W&M] protect migratory ducks. Dr. Pearson Each THP must describe the land upon stated that migratory waterfowl have al- which work is proposed, silvicultural U LITIGATION most certainly been exposed to the disease methods to be applied, erosion controls to On October 13 in Natural Resources and have likely built up an immunity to it. be used, and other environmental protec- Defense Council v. Patterson, No. 88- According to Dr. Pearson, killing exposed tions required by the Forest Practice 1658LKK (E.D. Cal.), U.S. District Court ducks simply replaces birds which may Rules. All THPs must be inspected by a Judge Lawrence Karlton denied the Bu- have developed an immunity to the dis- forester on the staff of the Department of reau of Reclamation's motion to dismiss a ease with vulnerable newcomers. Forestry and, where deemed necessary, by

150 California Regulatory Law Reporter ° Vol. 14, No. 1 (Winter 1994)