RE: IOU and Industry Coalition Comments on Draft Regulations for Fish and Game Code Sections 3503/3503.5, Nesting Birds

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1 March 19, 2014 Kevin Hunting California Department of Fish and Wildlife th Street Sacramento, CA RE: IOU and Industry Coalition Comments on Draft Regulations for Fish and Game Code Sections 3503/3503.5, Nesting Birds Dear Mr. Hunting, Introduction and Background The Investor Owned Utilities(Southern California Edison, San Diego Gas and Electric, Pacific Gas and Electric Company, and Southern California Gas Company)and the Coalition (California Farm Bureau Federation, California Forestry Association, and California Building Industry Association),together referenced as Industry Representatives, appreciate the opportunity to provide our joint comments in response to the California Department of Fish and Wildlife s request for input on the draft Regulations for Fish and Game Code Sections 3503/3503.5, October 25, 2013 Draft for Discussion. During a joint meeting on October 31, 2013 with all of the parties to this letter,the Industry Representatives agreed to work together to develop consensus on the proposed regulations, including a proposal to achieve our mutual objectives without the need for a permitting process. Since this meeting, both the Investor Owned Utilities and the Coalition have collaborated to reach a common understanding of the interests of our industries and how those interests relate to the proposed regulations. We are pleased to submit these joint comments and the attached draft of the proposed regulations to clarify Fish and Game Code 3503/ Both the Investor Owned Utilities and Coalition have the mutual goals of developing regulations that provide a streamlined approach to the management of nesting birds while continuing the operation of our facilities, conducting our activities, and remaining competitive within our respective industries. The Industry Representatives believe CDFW s draft regulations seek to provide needed clarity to the code. The Industry Representatives goal by providing these comments is to ensure that the regulations provide a sound avenue for compliance and reasonable implementation of Fish and

2 Game Code Sections 3503/ The Industry Representatives encourage CDFW to continue our joint efforts to assist the Investor Owned Utilities in providing safe, reliable, and cost effective electricity and gas to California residents and the Coalition encourages CDFW to utilize existing environmental impact review mechanisms so they can continue to provide affordable food, timber, and housing for Californians. Through our collaboration we have found common ground in the following components of the proposed regulation: Revision of Definition of (a) Active Nest and (b) Inactive definition to be combined under (a) Active Nest written as the following: Active Nest. An active nest is a structure or site which contains eggs or nestlings. Active nests do not include structures or sites which previously were, but are currently not active, nests. Perching sites and screening vegetation are not part of the nest. The Industry Representatives suggest combining the definition of Active and Inactive nests into one definition of Active Nest given that the term Inactive Nest is not used within the draft regulations. In addition, our suggested definition of Active Nest would be simplified to be consistent with the United States Fish and Wildlife Service definition of regulated nests under the Migratory Bird Treaty Act. Revision to Definition of (b) Take to facilitate the implementation and regulation of nests to be written as the following: Take. For purposes of these regulations, take of an active nest means to unnecessarily destroy any active nest or to unnecessarily cause mortality of eggs or nestlings by direct means. Take of raptors is as defined in Fish and Game Code 86. The Industry Representatives request the Definition of (b) Take be modified to remove the term damage and the reference to nest failure due to abandonment. Activities undertaken by the various industries may result in damage to a nest, but those activities would not necessarily result in a failure to complete a successful nesting season. The Industry Representatives suggest focusing regulatory efforts on managing the destructionof active nests or egg and nestling mortality, which is the Code s primary intent. For example, Industry Representatives may be required to trim nests, as opposed to remove nests, that may affect public health and safety, such as through the potential of causing a fire or power outage on an electrical distribution pole. In some situations, the trimming of the nest would be considered damage, but typically such action does not result in the take of a nest. Page 2 of 6

3 The Industry Representatives request the Definition of (b) Take be modified to add the term unnecessarily to address activities that may result in take, but are nonetheless critical to the providing of safe, reliable, and cost effective electricity and gas and to provide affordable food, timber, and housing for Californians. This term would make the definition consistent with the Code section, which restricts only needless destruction. We propose removing the abandonment component because abandonment of a nest is a difficult concept to identify and regulate. Birds abandon nests for many reasons, including natural predation of either or both of the parents. The Industry Representatives suggest limiting the definition of take to activities that can be tied to an act that clearly results in the take of an active nest. Revision to Definitions of (c) Possession to facilitate active management of nests to reduce nest failures to be written as the following: Possession. For purposes of these regulations, possession of nests, eggs or nestlings means to remove and hold in custody a nest or remove eggs or nestlings from a nest with the exception of situations that warrant the removal or relocation of a nest. Possession does not apply to relocation efforts made solely for rehabilitation purposes. Temporary possession is permitted of a nest, eggs, or nestlings for the purpose of relocation or transport to a permitted wildlife rescue under the direction of a Qualified Biologist (681.2 (f)). The Industry Representatives request the Definition of (c) Possession be modified to allow for the management of problem nests during and outside of the nesting season and transport birds that have been injured during the operation of our Industry s activities. Revision to Definitions to remove the definitions of site, abandoned, permit, and feasible The Industry Representatives request that other definitions be removed. A more concise definition of Active Nest, along with the removal of language pertaining to regulating abandoned nests, would eliminate the need for some of these definitions. The definitions proposed for removal are shown on the attached redlined version of the draft regulations. Revision to Definition of (g)(2) to facilitate effective management of species requiring protection and allowing for take of common and abundant species: Page 3 of 6

4 (1) The take or possession of any active nest, or eggs of the following categories of species, at any time. (2) The unnecessary take or possession of any active nest, oreggs, or nestlings of native bird species not included in 14 CCR 681.2(g)(1), except for the following (e.g., a list of common and abundant species with no population decline concerns): The Industry Representatives understand the need for the Definition of (g)(2)to allow for the effective management of species requiring additional protection, but we recommend that it also allow for the take common and abundant species identified in a list to be created by CDFW. The Industry Representatives understand additional protection is required of species that have potential management concerns and support the concept in the regulation s development. However, several common and abundant species create significant challenges for the Industry Representatives to continue with necessary activities. Allowing the take of these specific common and abundant species would allow CDFW to focus on the management of species with population concerns. Revision to Full Exemptions to Prohibitions to add Subsection (e) for projects that avoid and minimize impacts through a CEQA process using the thresholds of significance: (e) Where projects may have significant environmental impacts under the CEQA thresholds in 14 CCR 681.5, but have incorporated feasible mitigations to avoid or minimize impacts pursuant to CEQA, or The Industry Representatives request the Full Exemptions to Prohibitions add in a provision that recognizes the use of existing environmental review mechanisms that address impacts to active nests and eggs. This will avoid wasteful and duplicative regulation and analysis with the inclusion of (e). For example, the building industry has for years worked with local government lead agencies in developing mitigations for projects; these mechanisms are well-established and time-tested. The express requirement of proposed section 681.3(e) that impacts to active nests and their eggs be evaluated pursuant to CEQA relative to these regulation s thresholds of significance levels ensures consistency with the regulations and their purposes. Revision to 681.3(f) to add bird species not protected under the Federal Migratory Bird Treaty Act to be written as the following: Page 4 of 6

5 (8) Other non-native bird species not protected by the MBTA The Industry Representatives request the species protected under the 3503 be consistent with the Federal Migratory Bird Treaty Act. Both federal and state regulations should aim at protecting native species and not introduced non-native species. Revision to 681.4(f) to ensure that agricultural activities are allowed under the proposed regulations: (f) Take is incidental to routine and ongoing agricultural activities. The Industry Representatives request the inclusion of this provision to allow incidental take for agricultural activities as defined in Section 681.2(e). California s farms and ranches manage their operations under many challenges, both natural and manmade, and need to have the flexibility to manage and harvest their crops as dictated by the weather and labor availability. The inclusion of this provision ensures that all necessary activities undertaken by the farm or ranch are able to proceed in a timely fashion. Revision to remove section Permits The Industry Representatives request the permitting requirement be removed from the Regulation. With the requested edits to the regulation, a permit component is not necessary to meet the goal of providing protection to populations of nesting birds, while allowing the Industry Representatives to proceed with the operation of our respective Industries.A few sections have been modified to reflect that the regulations will no longer have a permitting requirement. Revision to California Environmental Quality Act Thresholds of Significance. To reinforce thresholds of native nesting bird populations to be written as the following: (a) (b) (c) The project has a substantially adverse effect, either directly or through habitat modifications, on the population of a bird species identified as a candidate, threatened, endangered or species of special concern by the Department of Fish and Wildlife or Fish and Game Commission. The project has the potential to substantially reduce the habitat, restrict the range or cause the population of a native bird species to drop below self-sustaining levels. The project is likely to have long-term adverse consequences for the populations of one or more native bird species, or Page 5 of 6

6 The Industry Representatives request that Section California Environmental Quality Act (a), (b), and (c) be modified to reinforce the thresholds that apply to the populations of native birds. Conclusion The Industry Representatives -- Southern California Edison, San Diego Gas and Electric, Pacific Gas and Electric Company, Southern California Gas Company, California Farm Bureau Federation, California Forestry Association, and California Building Industry Association -- respectfully request that CDFW consider adopting the above-suggested changes to the draft regulatory language. Sincerely, Signatories ccs PG&E SCE SDG&E SoCalGas Page 6 of 6