Reasons for Exemption
On June 15, 2023, the California Fish and Game Commission (Commission) took final action under the California Fish and Game Code and the Administrative Procedure Act with respect to the proposed project. The Commission for the second time readopted an emergency amendment of subsection 29.80(b), Title 14, California Code of Regulations (CCR) to amend the requirements for the use of hoop nets for the recreational take of crustaceans.
Statutory Exemption for Specific Actions Necessary to Prevent or Mitigate an Emergency
In compliance with the California Environmental Quality Act (CEQA; Public Resources Code Section 21000 et seq.), the Commission readopted the regulation relying on a statutory exemption contained in Public Resources Code Section 21080 (Actions Necessary to Prevent or Mitigate an Emergency). The exemption applies to agency actions to prevent or mitigate an emergency.
Animals listed under the federal Endangered Species Act have been observed entangled in fishing gear in increasing numbers since 2014. The animals in question are primarily humpback whale, blue whale, and Pacific leatherback sea turtle. The number of observed entanglements have since fallen from the height experienced during 2014 through 2017; however, marine life entanglement remains a persistent issue each year.
A dramatic increase in hoop net fishing effort in the Dungeness crab (Metacarcinus magister) recreational fishery during times of elevated marine life entanglement risk created the need for an emergency rulemaking to amend hoop net regulations before the start of the 2022-2023 Dungeness crab season. The Commission’s emergency rulemaking went into effect on October 31, 2022 and was readopted by the Commission at its February 9, 2023 meeting. The emergency will expire August 1, 2023 unless extended.
The increase in hoop net fishing effort was a result of crab trap prohibitions declared pursuant to changes to subsection 29.80(c), Title 14, CCR, that became effective November 1, 2021. This emergency rulemaking extends the October 2022 emergency rulemaking to amend and clarify hoop net regulations to minimize entanglement risk of federally protected humpback whales, blue whales and Pacific leatherback sea turtles.
Emergency regulations will maintain the low entanglement risk of hoop nets by ensuring the devices will be serviced every two hours and that design specifications will prevent the device from functioning as a crab trap that would otherwise incentivize longer soak periods. Other design specifications reduce the weight of the hoop net, thereby posing less harm to an entangled whale or sea turtle, should this occur. In addition, gear marking of hoop nets used north of Point Arguello, Santa Barbara County, will aid in identifying this gear type to enforce these requirements and identify hoop nets involved in entanglements. The proposed actions will help reduce entanglement risk of protected marine life throughout the recreational Dungeness crab and rock crab seasons. As such, the proposal is an activity that is the proper subject of CEQA’s exemption for actions necessary to prevent or mitigate an emergency. While the emergency rule has been in effect, the Commission adopted a regular rulemaking that includes these hoop net regulations at its April 2023 meeting and these regulations will take effect September 1, 2023.
Categorical Exemptions to Protect Natural Resources
In compliance with CEQA, the Commission adopted the regulation by also relying on the categorical exemption contained in the CEQA guidelines in Title 14 Section 15307 (Actions by Regulatory Agencies for Protection of Natural Resources); the exemption applies to agency actions to protect natural resources.
The adopted regulation is expected to help reduce entanglement risk for endangered whale and turtle species. As such, the proposal is an activity that is the proper subject of CEQA’s Class 7 categorical exemption.