California Aquaculture Association

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STATE OF CALIFORNIA
FISH AND GAME COMMISSION
INITIAL STATEMENT OF REASONS FOR REGULATORY ACTION
(Pre-publication of Notice Statement)
Amend Section 238.5
Title 14, California Code of Regulations
Re: Stocking of Aquaculture Products
I. Date of Initial Statement of Reasons: May 10, 2010
II. Dates and Locations of Scheduled Hearings:
(a) Notice Hearing: Date: June 24, 2010
Location: Folsom, CA
(b) Discussion Hearing: Date: August 5, 2010
Location: Santa Barbara, CA
(c) Adoption Hearing: Date: September 16, 2010
Location: McClellan, CA
III. Description of Regulatory Action:
(a) Statement of Specific Purpose of Regulation Change and Factual Basis
for Determining that Regulation Change is Reasonably Necessary:
On January 11, 2010, the Department of Fish and Game (Department)
certified the Final Hatchery and Stocking Program Environmental Impact
Report/Environmental Impact Statement (Final EIR/EIS) on its fish
hatchery operations and fish stocking programs. The mitigation measures
in the Final EIR/EIS recommend certain changes to the Private Stocking
Permit in Section 238.5, Title 14, California Code of Regulations (CCR):
1) Ensure adequate Department review, assessment and monitoring
of all private fish stocking in California’s inland waters.
2) Address mitigation for potential biological impacts due to the
issuance of private stocking permits.
3) Address concerns about the potential biological impacts of private
stocking on regional fish and amphibian health issues, range
expansions of invasive species and threats to native species.
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The Department proposal is to modify Section 238.5 to enact some of the
Final EIR/EIS recommendations.
Present Regulations
Current regulations specify that no person shall stock aquaculture
products except under a Private Stocking Permit issued pursuant to
Section 238.5, Title 14, CCR. This Section lists the general conditions,
provisions, and exceptions for legally reared or possessed aquaculture
product to be stocked into the waters of the state.
Proposed Regulations
The Department is proposing the following changes to Section 238.5:
1. Remove subsection 238.5(c) exception for a registered aquaculturist to
stock aquaculture products in publicly owned lakes covered by a
Department cooperative agreement and privately owned reservoirs,
lakes and ponds without a stocking permit.
a. This exception leads to stockings that have no Departmental
review, assessment or monitoring to ensure compliance with
Commission, State, and Federal stocking policies and fishery
management measures and the mitigation measures in the
Final EIR/EIS.
2. Add a new subsection 238.5(c) that all private stockings are evaluated
pursuant to the Pre-Stocking Evaluation Protocol in Appendix K of
Final EIR/EIS.
a. This addition ensures fish stockings that have adequate
Department review and assessment of impacts to native
species.
3. Modify subsection 238.5(d) for clarity as follows:
a. Remove the link to the old subsection 238.5(c).
b. Update subsection 238.5(d)(1) with the correct form revision
date for the Private Stocking Permit, FG 749.
c. Modify subsection 238.5(d)(1) language to require an annual
expiration date unless otherwise specified on the permit and
ensure all existing special permit notifications, requirements and
conditions are listed on the permit or attached pages.
d. Revise subsection 238.5(d)(5) and add (d)(6) and (7) to
standardize denial, revocation and appeal procedures for
permits.
e. Renumber subsection 238.5(d)(6) to (d)(8) and revise to ensure
a stocking permit is signed by a Department representative.
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4. Remove the subsection 238.5(f) exception for planting mosquitofish for
purposes of mosquito control without obtaining a permit, except in
Inyo, Mono, San Bernardino, Riverside and Imperial counties, where
the written concurrence of the DFG is required.
a. Elimination of this section could require a private stocking permit
to plant mosquitofish, throughout the state.
b. Mosquito Control Districts typically have their own independent
authority, based on public health and safety, to plant
mosquitofish in waters within their jurisdiction. Thus the need
for the existing exception in subsection 238.5(f) is unclear.
c. This exception leads to fish stockings that have no Department
review or assessment to ensure compliance with Commission,
State and federal stocking policies and fishery management
programs.
d. Eliminating this exception would be in alignment with the Pre-
Stocking Evaluation Protocol in Appendix K of the Final
EIR/EIS.
Additional minor changes are proposed to clarify the regulations and
reduce public confusion.
(b) Authority and Reference Sections from Fish and Game Code for
Regulation:
Authority: Sections 1050, 2363, 6401, 7701, 7708, 15005, 15200, 15202,
15501 and 15504, Fish and Game Code.
Reference: Sections 17, 45, 1050, 6400, 6400.5, 6401, 7701, 7702, 7703,
7706, 7707, 7708, 8371, 8435, 8436, 15005, 15200, 15202 and 15504,
Fish and Game Code.
(c) Specific Technology or Equipment Required by Regulatory Change:
None.
(d) Identification of Reports or Documents Supporting Regulation Change:
Department of Fish and Game. DFG Hatchery Operations, Final DFG
Environmental Impact Report/Environmental Impact Statement, January
11, 2010.

http://www.dfg.ca.gov/news/pubnotice/hatchery/

(e) Public Discussions of Proposed Regulations Prior to Notice Publication:
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A series of seven public scoping meetings from Southern California to
Northern California were held prior to the notice publication. In addition,
the 45-day comment period provides adequate time for review of the
proposed amendments.
IV. Description of Reasonable Alternatives to Regulatory Action:
(a) Alternatives to Regulation Change:
No alternatives were identified.
(b) No Change Alternative:
The no-change alternative would continue the present threat to California
native aquatic species from stocking of aquaculture products without
adequate Department review as required by the mitigation measures in
the Final EIR/EIS.
(c) Consideration of Alternatives:
In view of the information currently possessed, no reasonable alternative
considered would be more effective in carrying out the purposes for which
the regulation is proposed, or would be as effective and less burdensome
to affected private persons than the proposed regulation.
V. Mitigation Measures Required by Regulatory Action:
The proposed regulatory action will have no negative impact on the environment.
Therefore, no mitigation is necessary.
VI. Impact of Regulatory Action:
The potential for significant statewide adverse economic impacts that might result
from the proposed regulatory action has been assessed, and the following initial
determinations relative to the required statutory categories have been made:
(a) Significant Statewide Adverse Economic Impact Directly Affecting
Businesses, Including the Ability of California Businesses to Compete with
Businesses in Other States:
The proposed action will not have a significant statewide adverse
economic impact directly affecting business, including the ability of
California businesses to compete with businesses in other states. The
proposed changes are necessary for the continued preservation of the
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resource and therefore the prevention of adverse economic impacts.
(b) Impact on the Creation or Elimination of Jobs Within the State, the
Creation of New Businesses or the Elimination of Existing Businesses, or
the Expansion of Businesses in California:
None.
(c) Cost Impacts on a Representative Private Person or Business:
The agency is not aware of any cost impacts that a representative private
person or business would necessarily incur in reasonable compliance with
the proposed action.
(d) Costs or Savings to State Agencies or Costs/Savings in Federal Funding
to the State:
None.
(e) Nondiscretionary Costs/Savings to Local Agencies:
None.
(f) Programs Mandated on Local Agencies or School Districts:
None.
(g) Costs Imposed on Any Local Agency or School District that is Required
to be Reimbursed Under Part 7 (commencing with Section 17500) of
Division 4, Government Code:
None.
(h) Effect on Housing Costs:
None.
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Informative Digest (Policy Statement Overview)
On January 11, 2010, the Department of Fish and Game (Department) certified the
Final Hatchery and Stocking Program Environmental Impact Report/Environmental
Impact Statement (Final EIR/EIS) for its fish hatchery operations and fish stocking
programs. The mitigation measures in the Final EIR/EIS recommend the following
changes to the Private Stocking Permit in Section 238.5, Title 14, California Code of
Regulations (CCR):
1) Ensure adequate Department review, assessment and monitoring of all private
fish stocking in California’s inland waters.
2) Address mitigation for potential biological impacts due to the issuance of private
stocking permits.
3) Address concerns about the potential biological impacts of private stocking on
regional fish and amphibian health issues, range expansions of invasive species
and threats to native species.
The Department proposal is to modify Section 238.5 to enact some of the Final EIR/EIS
recommendations.
Present Regulations
Current regulations specify that no person shall stock aquaculture products except
under a Private Stocking Permit issued pursuant to Section 238.5, Title 14, CCR. This
Section listed the general conditions, provisions, and exceptions for legally reared or
possessed aquaculture product to be stocked into the waters of the state. Section
238.5 (c) specifically exempts 37 counties from the need to obtain a Private Stocking
Permit.
Proposed Regulations
The Department is proposing the following changes to Section 238.5:
1. Remove subsection 238.5(c) exception for a registered aquaculturist to stock
aquaculture products in publicly owned lakes covered by a Department cooperative
agreement and privately owned reservoirs, lakes and ponds without a stocking
permit.
a. This exception leads to stockings that have no Departmental review,
assessment or monitoring to ensure compliance with Commission, State, and
Federal stocking policies and fishery management measures and the
mitigation measures in the Final EIR/EIS.
2. Add a new subsection 238.5(c) that all private stockings are evaluated pursuant to
the Pre-Stocking Evaluation Protocol in Appendix K of Final EIR/EIS.
a. This addition ensures fish stockings that have adequate Department review
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and assessment of impacts to native species.
3. Modify subsection 238.5(d) for clarity as follows:
a. Remove the link to the old subsection 238.5(c).
b. Update subsection 238.5(d)(1) with the correct form revision date for the
Private Stocking Permit, FG 749.
c. Modify subsection 238.5(d)(1) language to require an annual expiration date
unless otherwise specified on the permit and ensure all existing special permit
notifications, requirements and conditions are listed on the permit or attached
pages.
d. Revise subsection 238.5(d)(5) and add (d)(6) and (7) to standardize denial,
revocation and appeal procedures for permits.
e. Renumber subsection 238.5(d)(6) to (d)(8) and revised to ensure a stocking
permit is signed by a Department representative.
4. Remove the subsection 238.5(f) exception for planting mosquitofish for purposes of
mosquito control without obtaining a permit, except in Inyo, Mono, San Bernardino,
Riverside and Imperial counties, where the written concurrence of the DFG is
required.
a. Elimination of this section could require a private stocking permit to plant
mosquitofish, throughout the state.
b. Mosquito Control Districts typically have their own independent authority,
based on public health and safety, to plant mosquitofish in waters within their
jurisdiction. Thus the need for the existing exception in subsection 238.5(f) is
unclear.
c. This exception leads to fish stockings that have no Department review or
assessment to ensure compliance with Commission, State and federal
stocking policies and fishery management programs.
d. Eliminating this exception would be in alignment with the Pre-Stocking
Evaluation Protocol in Appendix K of the Final EIR/EIS.
Additional minor changes are proposed to clarify the regulations and reduce public
confusion.
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Regulatory Language
Section 238.5, Title 14, CCR, is amended to read:
§238.5. Stocking of Aquaculture Products.
Upon stocking, aquaculture products are wild and therefore “fish” as defined by Section
45 of the Fish and Game Code, except when stocked into a registered aquaculture
facility. No person shall stock aquaculture products in this state except in accordance
with the following general terms and conditions:
(a) All aquaculture products stocked under these provisions must be legally reared or
possessed by an aquaculturist registered in this state. No person shall stock
aquaculture products which are parasitized, diseased or of an unauthorized species.
(b) Live aquaculture products shipped to Inyo or Mono counties must be certified by the
department as disease and parasite-free before being stocked in waters in those
counties.
(c) A registered aquaculturist producing or possessing rainbow trout (Oncorhynchus
mykiss), largemouth bass (Micropterus salmoides), bluegill (Lepomis macrochirus),
redear sunfish (Lepomis microlophus), Sacramento perch (Archoplites interruptus),
channel catfish (Ictalurus punctatus), blue catfish (Ictalurus furcatus) and white catfish
(Ictalurus catus), may stock these species under the following terms and conditions.
Only publicly owned lakes covered by a cooperative agreement between the
department and the lake operator and privately owned reservoirs, lakes and ponds in
the following counties or portions thereof may be stocked without a stocking permit:
Alameda, Butte, Colusa, Contra Costa, Glenn, Imperial, Kern, except in the Kern River
drainage above Democrat Dam; Kings, Lake except in the Eel River drainage; Los
Angeles, Merced, Napa, Orange, Riverside, Sacramento, San Benito, San Bernardino,
San Diego, San Joaquin, Santa Barbara, Solano, Stanislaus, Sutter, Tehama, Ventura,
Yolo, Yuba; those portions of Amador, Calaveras, El Dorado, Mariposa, Nevada, Placer
and Tuolumne west of Highway 49; Fresno west of the Sierra and Sequoia National
Forest boundaries; Madera west of the Sierra National Forest boundary; and Tulare
west of the Sequoia National Forest and Sequoia National Park boundaries.
(c) All private stockings of fish must be evaluated pursuant to the private stocking permit
evaluation protocol in Appendix K of the DFG Hatchery Operations, Final DFG
Environmental Impact Report/Environmental Impact Statement (January 11, 2010)
(incorporated by reference herein).
(d) Except for those species listed in Section 238.5(c) when planted into those specific
areas and waters covered in Section 238.5(c), nNo person shall stock aquatic plants
and animals except as follows:
(1) Each stocking of fish shall require a separate Private Stocking Permit (FG 749 (Rev.
5/931/09), which is incorporated by reference herein) issued by the department. A copy
of this permit shall accompany all shipments. However, a copy of the same permit (FG
749 (Rev. 5/931/09)) may be used for additional consignments of the same species
when stocked in the same water or waters, until cancelled by the department. Permits
issued under the provisions of this Section shall be valid for a term of one year from the
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date of issue unless otherwise specified on the permit. Any special notifications,
requirements and conditions shall be attached to the permit on a separate page. See
subsection 699(b) of these regulations for the fee for this permit.
(2) Application for the private stocking permit shall be made to the regional manager of
the Fish and Game region in which the fish are to be stocked. An application will be
supplied to each applicant upon request.
(3) No person shall stock any species of fish in any water in which the stocking of such
fish is contrary to the fisheries management programs of the department for that water
or drainage, or in any water from which such fish might escape to other waters where
such fish are not already present. All applicants will be advised upon request of the said
departmental fisheries management programs.
(4) Permittee shall notify the regional office of the department not less than 10 days in
advance of stocking in order to make arrangements for inspection. Such inspection may
be waived at the discretion of the department. If, upon inspection, diseased or
parasitized fish or fish of unauthorized species are found by the department to be
present, they shall be disposed of by the permittee as directed by the department. The
department may require that the expense of any inspection made necessary by the
provisions of these regulations be borne by the permittee.
(5) A stocking permit may be cancelled or suspended by the department upon
conviction of a violation of these regulations by a court of competent jurisdiction.
Cancellation or suspension may be appealed to the commission.
(5) Denial.
(A) The department may deny the issuance of a permit or amendment of an existing
permit if:
(i) the applicant or permittee has failed to comply with terms and conditions of a permit
or any provision of the Fish and Game Code or regulations adopted pursuant thereto;
(ii) the applicant or permittee has failed to comply with any provision of any statute,
regulation, rule or ordinance existing in any other state or in any city, county, or other
local governing entity in any other state that is related to aquaculture activities described
in subparagraph (a), so long as the failure to comply would constitute a violation of the
Fish and Game Code or regulations adopted pursuant thereto if it had occurred in this
state or
(iii) the applicant or permittee has failed to comply with any provision of any federal
statute, regulation, or rule that is related to aquaculture activities described in
subparagraph (a), so long as the failure to comply would constitute a violation of the
Fish and Game Code or regulations adopted pursuant thereto if it had occurred in this
state.
(B) The department shall deny the issuance of a permit or amendment of an existing
permit if the applicant or permittee fails to demonstrate compliance with the conditions
of this section. Before denying an application for this reason, however, the department
shall notify the applicant that it has not received sufficient materials or information
pursuant to this section. The applicant may amend or supplement an application with
additional information or materials, but these supplemental materials shall be
postmarked no later than 30 days after the date of the proof of service accompanying
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receipt (postmark) of the department’s notification. New applications may be submitted
at any time.
(C) All notifications, denials, or other correspondence sent from the department to an
applicant or permittee shall include a proof of service that consists of a declaration of
mailing, under penalty of perjury, indicating the date of mailing the department’s
notification, denial, or other correspondence.
(6) Revocation. Any permit issued pursuant to these regulations may be suspended or
revoked at any time by the department for failure to comply with the terms and
conditions of the permit or for failure to comply with any provision of the Fish and Game
Code or regulations adopted pursuant thereto. Unless the permittee has been convicted
in a court of competent jurisdiction of violating one of these provisions, the suspension
or revocation shall not take effect until the time to request an appeal pursuant to
subparagraph (5) has expired. A timely request for an appeal will stay the department’s
suspension or revocation if the permittee was not convicted of violating the Fish and
Game Code or regulations adopted pursuant thereto.
(7) Appeal. Any applicant or permittee who is denied a permit, an amendment to an
existing permit or has a permit suspended or revoked by the department pursuant to
these regulations may appeal that denial, suspension, or revocation by filing a request
for an appeal with the commission that is postmarked no later than 30 days after the
date of the proof of service accompanying the department’s notice of denial,
suspension, or revocation. The commission shall not consider a request for an appeal
with a postmark later than 30 days after the date of the proof of service accompanying
the notice of denial, suspension, or revocation.
(A) No later than 30 days after filing an appeal (as indicated by the postmark on the
request for an appeal), a person requesting an appeal (appellant) shall submit a written
statement to the commission that specifically identifies the legal and factual grounds for
challenging the department’s action. Upon a showing of good cause, the commission
may grant an appellant’s request for an additional 30 days to submit appellant’s written
statement provided the appellant’s request for additional time is received by the
commission no later than 30 days after the postmarked date of the request for appeal.
The appellant’s written statement shall be signed by the appellant under penalty of
perjury. Upon receipt, the commission shall forward to the department a copy of all
appeal-related materials it receives from the appellant, including, a copy of the request
for an appeal, any requests for additional time, and the appellant’s written statement.
(B) No later than 30 days after receipt of the appellant’s written statement, the
department shall submit a response to the commission, with a copy sent to the
appellant, along with any supporting documentary evidence and/or declarations under
penalty of perjury.
(C) No later than 15 days after receipt of the department’s response, the appellant may
submit a reply to the commission signed by the appellant under penalty of perjury, with
a copy sent to the department.
(D) The commission’s president may appoint a commissioner, a former executive
director of the commission, or a member of the state bar of California with at least 10
years experience in the active practice of law and determined qualified by the president,
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to serve as a hearing officer. Following the appellant’s and the department’s submittals
on the appeal, the hearing officer may request additional information, including
testimony under oath, from either party, and may permit either party to present
additional information or rebuttal if the hearing officer determines such to be helpful in
reaching a correct decision.
(E) In any appeal of the department’s denial of an application for a permit or to amend
an existing permit, if the hearing officer determines the appeal is based upon new
evidence or factual information that was not included in the application or otherwise
submitted to the department prior to the department’s denial, the hearing officer shall
direct the applicant or permittee to file a new application or seek reconsideration by the
department, and the request for appeal shall be closed.
(F) No later than 60 days after receipt of all submittals and any additional information or
rebuttal permitted by the hearing officer under Subparagraph (6)(D), the hearing officer
shall prepare and submit a proposed decision to the executive director of the
commission. The decision shall contain proposed findings and reasons for the
commission’s action. Upon receipt, the executive director of the commission shall
provide both parties a copy of the hearing officer’s proposed decision.
A cover letter accompanying the proposed decision shall indicate the date when the
commission will consider the proposed decision and a deadline for the parties to
comment on the proposed decision. Copies of the proposed decision shall include a
proof of service indicating the date the proposed decision is mailed to the parties.
Each party may submit written comments on the proposed decision to the commission,
however, these comments shall not exceed two pages, and they shall not refer to or
introduce any new factual information or evidence that was not previously submitted to
the commission.
(G) At a meeting of the commission no later than 60 days after the hearing officer’s
proposed decision is mailed to the parties, the commission shall consider adoption of
the proposed decision, unless good cause exists to delay consideration of the proposed
decision. The commission may by order adopt, revise or reject the proposed decision.
The commission shall serve both parties a copy of the commission’s order and decision.
The order is final.
(H) A party may request judicial review by filing a petition for writ of mandate in
accordance with Section 1094.5 of the Code of Civil Procedure within 30 days from the
date of service (postmark) of the order. The record of the proceedings as designated by
the petitioner shall be prepared by the commission and delivered to petitioner’s counsel
or, if appearing pro se, the petitioner within 30 days after petitioner’s request and upon
payment of the fee specified in Section 69950 of the Government Code.
(68) A stocking permit is valid only when signed by the applicant and the appropriate
Regional Manager or his/her designee.
(e) A registered aquaculturist selling and transporting aquatic plants and animals for the
purpose of stocking in this state shall retain copies of documents required by Section
15005(b) of the Fish and Game Code for a period of three years following stocking of
the fish. The documents shall be shown upon written demand by the director of the
department. The information contained in the documents is confidential except that such
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information may be disclosed in accordance with a proper judicial order in cases or
actions instituted for enforcement of this section or for prosecution of violations of this
section.
(f) Except for Inyo, Mono, San Bernardino, Riverside and Imperial counties,
mosquitofish (Gambusia affinis) may be planted for purposes of mosquito control
without obtaining a permit otherwise required by these regulations. In Inyo and Mono
counties and in public waters of San Bernardino, Riverside and Imperial counties,
mosquitofish may not be planted without the written concurrence of the department.
NOTE:
Authority cited: Sections 1050, 2363, 6401, 7701, 7708, 15005, 15200, 15202, 15501
and 15504, Fish and Game Code. Reference: Sections 17, 45, 1050, 6400-6401, 7701-
7708, 6400, 6400.5, 6401, 7701, 7702, 7703, 7706, 7707, 7708, 8371, 8435, 8436,
15005, 15200, 15202 and 15504, Fish and Game Code.