California Regulatory Notice Register — Register 2019, No. 4-Z (January 25, 2019)

Cal. Reg. Notice Reg. 2019, No. 4

California Z Register

REGISTER (Continued on next page) Time- Dated Material GAVIN NEWSOM, GOVERNOR OFFICE OF ADMINISTRATIVE LAW 2019, NO. 4−Z PUBLISHED WEEKLY BY THE OFFICE OF ADMINISTRATIVE LAW JANUARY 25, 2019 PROPOSED ACTION ON REGULATIONS TITLE 2. FAIR POLITICAL PRACTICES COMMISSION Conflict−of−Interest Code — Notice File No. Z2019−0115−02 ........................................... 135 Amendment Multi−County: Partnership Health Plan of California San Bernardino Community College District TITLE 5. BOARD OF EDUCATION California Assessment of Student Performance and Progress (CAASPP) — Notice File No.

Z2019−0115−04 .................................................................. 136 TITLE 5. BOARD OF EDUCATION Vision Testing — Notice File No. Z2019−0115−03 .................................................... 138 TITLE 16. MEDICAL BOARD OF CALIFORNIA Approved Postgraduate Training — Notice File No. Z2019−0115−01 ..................................... 141 GENERAL PUBLIC INTEREST DEPARTMENT OF FISH AND WILDLIFE Fish and Game Code

Section 1653 Consistency Determination Request for Little Lost Man Creek Fish Passage Project (Tracking Number: 1653−2019−031−001−R1), Humboldt County ........................................ 144 DEPARTMENT OF FISH AND WILDLIFE Habitat Restoration and Enhancement Act Consistency Determination no. 1653−2018−030−001−R4, Los Padres Dam Gravel Augmentation Project, Monterey County ................................................. 144 DEPARTMENT OF FISH AND WILDLIFE Monitoring Golden Eagle and Bald Eagle Nest Sites .................................................. 146

DEPARTMENT OF FISH AND WILDLIFE Research on Peregrine Falcons ................................................................... 147 FISH AND GAME COMMISSION Humboldt Marten Petition Final Findings .......................................................... 147 DECISION NOT TO PROCEED COMMISSION ON PEACE OFFICER STANDARDS AND TRAINING Decision Not to Proceed Concerning Law Enforcement Code of Ethics (Previously Published in Notice Register 2018, No. 46−Z) .............................................. 170 RULEMAKING PETITION DECISION BOARD OF FORESTRY AND FIRE PROTECTION Notice of Decision on Petition from Rancho Guejito Concerning Initiation of Formal Rulemaking and Promulgation of Regulations Related to Certified Rangeland Managers .......................................................... 170

SUMMARY OF REGULATORY ACTIONS Regulations filed with the Secretary of State ......................................................... 175 Sections Filed, August 15, 2018 to January 16, 2019 .................................................. 179 The California Regulatory Notice Register is an official state publication of the Office of Administrative Law containing notices of proposed regulatory actions by state regulatory agencies to adopt, amend or repeal regulations contained in the California Code of Regulations.

The effective period of a notice of proposed regulatory action by a state agency in the California Regulatory Notice Register shall not exceed one year [Government Code § 11346.4(b)]. It is suggested, therefore, that issues of the California Regulatory Notice Register be retained for a minimum of 18 months. CALIFORNIA REGULA TORY NOTICE REGISTER is published weekly by the Office of Administrative Law, 300 Capitol Mall, Suite 1250, Sacramento, CA 95814-4339. The Register is printed by Barclays, a subsidiary of West, a Thomson Reuters Business, and is offered by subscription for $205.00 (annual price).

To order or make changes to current subscriptions, please call (800) 328−4880. The Register can also be accessed at http://www.oal.ca.gov .

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 135 PROPOSED ACTION ON REGULATIONS Information contained in this document is published as received from agencies and is not edited by Thomson Reuters. TITLE 2.

FAIR POLITICAL PRACTICES COMMISSION NOTICE IS HEREBY GIVEN that the Fair Political Practices Commission, pursuant to the authority vested in it by Sections 82011, 87303, and 87304 of the Gov- ernment Code to review proposed conflict−of−interest codes, will review the proposed/amended conflict−of− interest codes of the following: CONFLICT−OF−INTEREST CODES AMENDMENT MULTI−COUNTY: Partnership Health Plan of California San Bernardino Community College District A written comment period has been established com- mencing on January 25, 2019, and closing on March 11, 2019.

Written comments should be directed to the Fair Political Practices Commission, Attention Brianne Kil- bane, 1102 Q Street, Suite 3000, Sacramento, Califor- nia 95811. At the end of the 45−day comment period, the pro- posed conflict−of−interest code(

s) will be submitted to the Commission’s Executive Director for her review, unless any interested person or his or her duly autho- rized representative requests, no later than 15 days prior to the close of the written comment period, a public hearing before the full Commission. If a public hearing is requested, the proposed code(

s) will be submitted to the Commission for review. The Executive Director of the Commission will re- view the above−referenced conflict−of−interest code(s), proposed pursuant to Government Code Sec- tion 87300, which designate, pursuant to Government Code

Section 87302, employees who must disclose cer- tain investments, interests in real property and income. The Executive Director of the Commission, upon her or its own motion or at the request of any interested per- son, will approve, or revise and approve, or return the proposed code(

s) to the agency for revision and re− submission within 60 days without further notice. Any interested person may present statements, argu- ments or comments, in writing to the Executive Direc- tor of the Commission, relative to review of the pro- posed conflict−of−interest code(s). Any written com- ments must be received no later than March 11, 2019. If a public hearing is to be held, oral comments may be presented to the Commission at the hearing.

COST TO LOCAL AGENCIES There shall be no reimbursement for any new or in- creased costs to local government which may result from compliance with these codes because these are not new programs mandated on local agencies by the codes since the requirements described herein were mandated by the Political Reform Act of 1974. Therefore, they are not “costs mandated by the state” as defined in Govern- ment Code

Section 17514. EFFECT ON HOUSING COSTS AND BUSINESSES Compliance with the codes has no potential effect on housing costs or on private persons, businesses or small businesses. AUTHORITY Government Code Sections 82011, 87303 and 87304 provide that the Fair Political Practices Commission as the code−reviewing body for the above conflict−of− interest codes shall approve codes as submitted, revise the proposed code and approve it as revised, or return the proposed code for revision and re−submission.

REFERENCE Government Code Sections 87300 and 87306 pro- vide that agencies shall adopt and promulgate conflict− of−interest codes pursuant to the Political Reform Act and amend their codes when change is necessitated by changed circumstances. CONTACT Any inquiries concerning the proposed conflict−of− interest code(

s) should be made to Brianne Kilbane, Fair Political Practices Commission, 1102 Q Street, Suite 3000, Sacramento, California 95811, telephone (916) 322−5660.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 136 A V AILABILITY OF PROPOSED CONFLICT−OF−INTEREST CODES Copies of the proposed conflict−of−interest codes may be obtained from the Commission offices or the re- spective agency. Requests for copies from the Commis- sion should be made to Brianne Kilbane, Fair Political Practices Commission, 1102 Q Street, Suite 3000, Sacramento, California 95811, telephone (916) 322−5660. TITLE 5.

BOARD OF EDUCATION AMENDMENTS TO CALIFORNIA CODE OF REGULATIONS, TITLE 5, REGARDING CALIFORNIA ASSESSMENT OF STUDENT PERFORMANCE AND PROGRESS (CAASPP) NOTICE IS HEREBY GIVEN that the State Board of Education (SBE) proposes to adopt the regulations described below after considering all comments, objec- tions, or recommendations regarding the proposed action. PUBLIC HEARING California Department of Education (CDE) staff, on behalf of the SBE, will hold a public hearing at 8:30 a.m. on March 11, 2019, at 1430 N Street, Room 1801, Sacramento, California. The room is wheelchair acces- sible.

At the hearing, any person may present state- ments or arguments, orally or in writing, relevant to the proposed action described in the Informative Digest. The SBE requests, but does not require, that persons who make oral comments at the public hearing also sub- mit a written

summary of their statements. No oral statements will be accepted subsequent to this public hearing. WRITTEN COMMENT PERIOD Any interested person, or his or her authorized repre- sentative, may submit written comments relevant to the proposed regulatory action to: Patricia Alverson, Regulations Coordinator Administrative Support and Regulations Adoption Unit California Department of Education 1430 N Street, Room 5319 Sacramento, CA 95814 Comments may also be submitted by facsimile (FAX) at 916−319−0155 or by e−mail to regcomments@cde.ca.gov.

Comments must be received by the Regulations Co- ordinator prior to 5:00 p.m. on March 11, 2019. All written comments received by CDE staff during the public comment period are subject to disclosure under the Public Records Act. A V AILABILITY OF CHANGED OR MODIFIED TEXT Following the public hearing and considering all timely and relevant comments received, the SBE may adopt the proposed regulations substantially as de- scribed in this Notice or may modify the proposed regu- lations if the modifications are sufficiently related to the original text.

With the exception of technical or gram- matical changes, the full text of any modified regulation will be available for 15 days prior to its adoption from the Regulations Coordinator and will be mailed to those persons who submit written comments related to this regulation, or who provide oral testimony at the public hearing, or who have requested notification of any changes to the proposed regulations. AUTHORITY AND REFERENCE Authority: Sections 33031, 60605 and 60640, Educa- tion Code.

References: Sections 306, 37670, 47605, 47605.8, 47651, 49062, 49068, 56034, 60602.5, 60603, 60604, 60605, 60607, 60610, 60615, 60640, 60641, 60642.5 and 60642.6, Education Code; 20 U.S.C. Sections 1401(3), 1412(a)(16), and 6311(b)(1)(E); and 34 C.F.R. Sections 200.1 and 300.160. INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW Assembly Bill 484 (Chapter 489, Statutes of 2013; hereafter “AB 484”) authorized a new statewide testing program, the California Assessment of Student Perfor- mance and Progress (CAASPP) System. Provisions of AB 484 took effect in January 2014. Pursuant to Cali- fornia Education Code (EC)

Section 60640, the CDE has updated the CAASPP System to include three new assessments: the new California Science Test (CAST), aligned with the California Next Generation Science Standards (CA NGSS); the new California Alternate Assessment for Science (CAA for Science); and the California Spanish Assessment (CSA), aligned with the Common Core State Standards in Español. CAASPP test results are used to improve teaching and learning by schools and districts in California. The CAASPP tests

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 137 are also developed, administered, and reported in accor- dance with federal requirements. With the development of these computer−based assessments, the CDE contin- ues to move manuals and reports from paper products to electronic delivery of products. Work to build out web− based processes for local educational agency (LEA) training, designation of authorized staff, instructional manuals, and reporting continues to change the way the CDE communicates with assessment coordinators, test site administrators, teachers and parents.

This developmental work requires the addition of testing procedures and policies consistent with the as- sessments and the added resources. Additionally, the assessment consortium of which California is a mem- ber, Smarter Balanced Assessment Consortium (Con- sortium), recently made changes in some of its policies; changes with which the CAASPP regulations must con- form by state law in order to ensure that test results are valid and reliable.

In addition, the CDE’s testing con- tractor issued recommendations regarding testing re- sources that must be included in order for the CAST and CSA to be valid and reliable as required by EC

Section 60602.5. As required by EC

Section 60640(q), Title 5 of the California Code of Regulations (5 CCR) sections 850, 854.1, 854.2, 854.3, 854.4, 859, 862, and 863 are being amended to conform the State’s testing regula- tions to the CAASPP System.

The proposed amendments are designed to assure that the tests within the CAASPP are administered fair- ly and consistently throughout the State so that all stu- dents may access the tests and so that valid and reliable results are available for accountability determinations and to provide schools and educators with accurate in- formation to improve student learning, and in so doing, prevent harm to the public peace, health, safety, and general welfare and progress of California pupils.

Anticipated Benefits of the Proposed Regulation The benefit of enacting the proposed amendments are the promotion of an optimal, efficient and fair test ad- ministration for eligible students. The clarification of terminology and resources introduced by the transition to electronic processes will aid LEAs and educators in selecting and activating accessibility resources to stu- dents who can benefit from them, including supports for English learners (ELs).

Additionally, the proposed amendments support increased local control, and strengthen validity, reliability and accuracy of statewide achievement scores used for the purposes of guiding instruction, gauging students’ readiness for ca- reer and college, and for meeting state and federal ac- countability requirements. Determination of Inconsistency/Incompatibility with Existing State Regulations The CDE reviewed all state regulations relating to the CAASPP System and found that none exist that are in- consistent or incompatible with these proposed regulations.

DISCLOSURES REGARDING THE PROPOSED ACTION/FISCAL IMPACT The SBE has made the following initial determinations: There are no other matters as are prescribed by statute applicable to the specific state agency or to any specific regulations or class of regulations. The proposed regulations do not require a report to be made. Mandate on local agencies and school districts: None. Cost or savings to any state agency: None. Costs to any local agencies or school districts for which reimbursement would be required pursuant to

Part 7 (commencing with

section 17500) of division 4 of the Government Code: None. Other non−discretionary costs or savings imposed on local agencies, including local educational agencies: None. Costs or savings in federal funding to the State: None. Significant, statewide adverse economic impact di- rectly affecting business including the ability of Cali- fornia businesses to compete with businesses in other states: None.

Cost impacts on a representative private person or businesses: The SBE is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action. Effect on housing costs: None. Effect on small businesses: The proposed regulations would not have an effect on any small business because the proposed amendments only affect LEAs and would have no impact on the private sector.

RESULTS OF THE ECONOMIC IMPACT ANALYSIS The SBE concludes that it is unlikely that these pro- posed regulations will: 1) create or eliminate jobs with- in California; 2) create new businesses or eliminate ex- isting businesses within California; or 3) affect the ex- pansion of businesses currently doing business within California. Benefits of the Proposed Action: The proposed regu- lations ensure the standard, efficient and effective im-

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 138 plementation of a successful statewide assessment for California’s public school children. Administering as- sessments that align with Consortium and contractor policies for accessibility are critical to ensuring valid and reliable test measures against which to gauge stu- dent progress. Clear and consistent procedures are also critical to ensuring that the statewide assessments are administered using standardized procedures that also support accurate, fair, valid, and reliable measures and the efficient reporting of those measures.

The proposed changes will help to provide better information about student performance to teachers, parents, and adminis- trators, to ultimately improve teaching and student learning, thus enhancing the general welfare, promot- ing fairness and social equity and increasing openness and transparency in government.

CONSIDERATION OF ALTERNATIVES The SBE must determine that no reasonable alterna- tive it considered or that has otherwise been identified and brought to the attention of the SBE, would be more effective in carrying out the purpose for which the ac- tion is proposed, would be as effective and less burden- some to affected private persons than the proposed ac- tion, or would be more cost−effective to affected private persons and equally effective in implementing the statutory policy or other provision of law.

The SBE invites interested persons to present state- ments or arguments with respect to alternatives to the proposed regulations at the scheduled hearing or during the written comment period.

CONTACT PERSONS Inquiries concerning the content of this regulation should be directed to: Mike Torres, Consultant Assessment Development and Administration Division California Department of Education 1430 N Street, 4401 Sacramento, CA 95814 Telephone: 916−319−0349 Inquiries concerning the regulatory process may be directed to the Regulations Coordinator or the backup contact person, Hillary Wirick, Regulations Analyst, at 916−319−0860.

INITIAL STATEMENT OF REASONS AND INFORMATION The SBE has prepared an Initial Statement of Rea- sons for the proposed regulations and has available all the information upon which the proposal is based. TEXT OF PROPOSED REGULATION AND CORRESPONDING DOCUMENTS Copies of the exact language of the proposed regula- tions, the Initial Statement of Reasons, and all of the in- formation upon which the proposal is based, may be ob- tained upon request from the Regulations Coordinator. These documents may also be viewed and downloaded from the CDE’s Web site at http://www.cde.ca.gov/re/ lr/rr/.

A V AILABILITY AND LOCATION OF THE FINAL STATEMENT OF REASONS AND RULEMAKING FILE All the information upon which the proposed regula- tions are based is contained in the rulemaking file which is available for public inspection by contacting the Reg- ulations Coordinator. You may obtain a copy of the Final Statement of Rea- sons, once it has been finalized, by making a written re- quest to the Regulations Coordinator.

REASONABLE ACCOMMODATION FOR ANY INDIVIDUAL WITH A DISABILITY Pursuant to the Rehabilitation Act of 1973, the Ameri- cans with Disabilities Act of 1990, and the Unruh Civil Rights Act, any individual with a disability who requires reasonable accommodation to attend or participate in a public hearing on proposed regulations, may request as- sistance by contacting Mike Torres, Assessment Devel- opment and Administration Division, 1430 N Street, 4401, Sacramento, CA, 95814; telephone, 916−319−0349. It is recommended that assistance be requested at least two weeks prior to the hearing. TITLE 5.

BOARD OF EDUCATION AMENDMENT TO CALIFORNIA CODE OF REGULATIONS, TITLE 5, REGARDING VISION TESTING NOTICE IS HEREBY GIVEN that the State Board of Education (SBE) proposes to adopt the regulations described below after considering all comments, objec- tions, or recommendations regarding the proposed action.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 139 The SBE invites interested persons to present state- ments or arguments with respect to alternatives to the proposed regulations at the scheduled hearing or during the written comment period. PUBLIC HEARING California Department of Education (CDE) staff, on behalf of the SBE, will hold a public hearing at 1:30 p.m. on March 11, 2019, at 1430 N Street, Room 1103, Sacramento, California. The room is wheelchair acces- sible.

summary of their statements. No oral statements will be accepted subsequent to this public hearing. REASONABLE ACCOMMODATION FOR ANY INDIVIDUAL WITH A DISABILITY Pursuant to the Rehabilitation Act of 1973, the Ameri- cans with Disabilities Act of 1990, and the Unruh Civil Rights Act, any individual with a disability who requires reasonable accommodation to attend or participate in a public hearing on proposed regulations, may request as- sistance by contacting Daniela Torres, Coordinated School Health & Safety, 1430 N Street, Room 6408, Sacramento, CA, 95814; telephone, 916−319−0284.

It is recommended that assistance be requested at least two weeks prior to the hearing. WRITTEN COMMENT PERIOD Any interested person, or his or her authorized repre- sentative, may submit written comments relevant to the proposed regulatory action to: Patricia Alverson, Regulations Coordinator Administrative Support and Regulations Adoption Unit California Department of Education 1430 N Street, Room 5319 Sacramento, CA 95814 Comments may also be submitted by facsimile (FAX) at 916−319−0155 or by email to regcomments@cde.ca.gov.

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW Previous law required, upon first enrollment in a Cal- ifornia school district of a child at a California elemen- tary school, and at least every third year thereafter until the child has completed the 8th grade, the child’s vision to be appraised by the school nurse or other authorized person, as specified. The chaptering of Assembly Bill 1840 (Chapter 803, Statutes of 2014) and Senate Bill 1172 (Chapter 925, Statutes of 2014) resulted in changes to EC

Section 49455. These changes authorizes a pupil’s vision to be appraised by using an eye chart or any scientifically val- idated photoscreening test. The changes further require photoscreening tests to be performed, under an agree- ment with, or the supervision of, an optometrist or oph- thalmologist, by the school nurse or a trained individual who meets requirements established by the CDE. Amendments to 5 CCR sections 590, 591, 594, and 596 and the proposed

Section 597 are necessary to pro- vide the specificity that is not included in statute, which will enable the CDE and school districts to implement the provisions of EC

Section 49455. Anticipated Benefits of the Proposed Regulation The benefit of enacting the proposed regulations will be to provide direction and specificity that school dis- tricts can follow for purposes of complying with the provisions of EC

Section 49455 related to vision ap- praisals that will lead to increased visual acuity of stu- dents and their ability to achieve at a greater level in the classroom.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 140 Determination of Inconsistency/Incompatibility With Existing State Regulations An evaluation of the proposed regulations have deter- mined they are not inconsistent/incompatible with ex- isting regulations, pursuant to Government

Section 11346.5(a)(3)(D). DISCLOSURES REGARDING THE PROPOSED ACTION/ FISCAL IMPACT The SBE has made the following initial determina- tions: There are no other matters as are prescribed by statute applicable to the specific state agency or to any specific regulations or class of regulations. The proposed regulations do not require a report to be made. Mandate on local agencies and school districts: None. Cost or savings to any state agency: None. Costs to any local agencies or school districts for which reimbursement would be required pursuant to

Part 7 (commencing with

RESULTS OF THE ECONOMIC IMPACT ANALYSIS The SBE concludes that it is unlikely that these pro- posed regulations will: 1) create or eliminate jobs with- in California; 2) create new businesses or eliminate ex- isting businesses within California; or 3) affect the ex- pansion of businesses currently doing business within California. Benefits of the Proposed Action: The benefit of enact- ing the proposed regulations is to provide direction and specificity that school districts can follow for purposes of complying with the provisions of EC

Section 49455 related to vision appraisals. CONSIDERATION OF ALTERNATIVES The SBE must determine that no reasonable alterna- tive it considered or that has otherwise been identified and brought to the attention of the SBE, would be more effective in carrying out the purpose for which the ac- tion is proposed, would be as effective and less burden- some to affected private persons than the proposed ac- tion, or would be more cost−effective to affected private persons and equally effective in implementing the statutory policy or other provision of law.

CONTACT PERSONS Inquiries concerning the content of these proposed regulations should be directed to: Daniela Torres, School Health Education Consultant Coordinated School Health & Safety California Department of Education 1430 N Street, Room 6408 Sacramento, CA 95814 Telephone: 916−319−0284 Email: dtorres@cde.ca.gov Inquiries concerning the regulatory process may be directed to the Patricia Alverson, Regulations Coordi- nator, or the backup contact person, Hillary Wirick, Regulations Analyst, at 916−319−0860.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 141 A V AILABILITY AND LOCATION OF THE FINAL STATEMENT OF REASONS AND RULEMAKING FILE You may obtain a copy of the Final Statement of Rea- sons, once it has been finalized, by making a written re- quest to the Regulations Coordinator. All the information upon which the proposed regula- tions are based is contained in the rulemaking file which is available for public inspection by contacting the Reg- ulations Coordinator. TITLE 16.

MEDICAL BOARD OF CALIFORNIA NOTICE IS HEREBY GIVEN that the Medical Board of California (Board) is proposing to take the ac- tion described in the Informative Digest. Any person in- terested may present statements or arguments orally or in writing relevant to the action proposed at a hearing to be held in the Hearing Room at the Medical Board of California, 2005 Evergreen Street, Sacramento, Cali- fornia 95815, at 9:00 a.m., on March 11, 2019.

Written comments, including those sent by mail, fac- simile, or e−mail to the addresses listed under Contact Person in this Notice, must be received by the Board at its office no later than 5:00 p.m. on March 11, 2019, or must be received at the hearing. The Board, upon its own motion or at the instance of any interested party, may thereafter adopt the proposals substantially as de- scribed below or may modify such proposals if such modifications are sufficiently related to the original text.

With the exception of technical or grammatical changes, the full text of any modified proposal will be available for 15 days prior to its adoption from the per- son designated in this Notice as contact person and will be mailed to those persons who submit written or oral testimony related to this proposal or who have request- ed notification of any changes to the proposal. Authority and Reference: Pursuant to the authority vested by

section 2018 of the Business and Professions Code (BPC), and to implement, interpret or make spe- cific sections 2037, 2065, 2066, 2096, 2102 and 2103 of said code, the Board is considering changes to Title 16, Division 13,

Chapter 1,

Article 6, California Code of Regulations (CCR)

section 1321 as follows: INFORMATIVE DIGEST A. Informative Digest BPC

section 2096 requires applicants for physician’s and surgeon’s certificates to complete required post- graduate training that is approved by the Accreditation Council for Graduate Medical Education (ACGME) or the Royal College of Physicians and Surgeons of Cana- da (RCPSC). Existing law under 16 CCR

section 1321(

a) states the following: Postgraduate training programs meeting the standards of the Accreditation Council on Graduate Medical Education or the Royal College of Physicians and Surgeons of Canada shall be approved for the postgraduate training specified in Sections 2065, 2066, 2096, 2102, and 2103 of the code. Since this statute and regulation became effective, ACGME−International and RCPSC−International have begun to review and accredit international post- graduate training programs. The law does not allow California to accept postgraduate training accredited by ACGME−International or RCPSC−International. This rulemaking proposes to amend

section 1321(

a) to clarify that only accredited postgraduate training pro- grams located in the United States and/or its territories or in Canada are approved by the Board to meet the postgraduate training requirement to be eligible for a California physician’s and surgeon’s license. This change does not impose a new barrier on applicants, but clarifies California law on postgraduate training re- quirements in light of the development of new accredi- tation programs that have not been vetted nor approved. Further, this rulemaking proposes to amend

section 1321(

a) to specify that family medicine postgraduate training programs in Canada accredited by the College of Family Physicians of Canada (CFPC) are approved by the Board to meet the postgraduate training require- ment to be eligible for a California physician’s and sur- geon’s certificate. This is necessary because RCPSC has partnered with CFPC for these accreditations. As part of this change in the domestic accreditation prac- tice adopted by RCPSC, the Board is seeking to clarify the name of this accreditation arm for approved post- graduate training in family medicine occurring in Canada. Additionally, this proposal makes a non−substantive correction under

section 1321(a), changing the word “on” to “for” so that the language correctly reads: “Ac- creditation Council for Graduate Medical Education,” as this is the correct name for this entity. Existing law under 16 CCR

section 1321(

b) states the following: A current list of such programs shall be maintained on file in the Sacramento office of the division. This rulemaking proposes to amend

section 1321(

b) by striking this language as antiquated and unnecessary, and adding new language indicating that postgraduate training programs located in the United States and/or its territories accredited by the American Osteopathic As-

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 142 sociation (AOA) that have received initial/ pre−accreditation status by the Accreditation Council on Graduate Medical Education (ACGME) shall be ap- proved for the postgraduate training specified in Sec- tions 2065, 2066, 2096, 2102, and 2103 of the BPC. B. Policy Statement Overview/Anticipated Benefits of Proposal The proposed change to

section 1321(

a) will clarify that only accredited postgraduate training programs lo- cated in the United States and/or its territories or in Canada are approved by the Board. Both ACGME and RCPSC have established international accreditation programs which have not been vetted and approved. California, pursuant to BPC

section 2096 only accepts postgraduate training approved by ACGME or RCPSC, not their international programs (ACGME− International or RCPSC−International). Accordingly, this proposed change will eliminate ambiguity for ap- plicants for a physician’s and surgeon’s license and fur- thers consumer protection by clarifying what postgrad- uate training programs the Board will accept. The proposed change to

section 1321(

a) will also clarify that the Board accepts family medicine post- graduate training in Canada accredited by the CFPC, since family medicine postgraduate training programs in Canada are now accredited by the CFPC, in partner- ship with RCPSC. Family medicine programs accredit- ed by CFPC in Canada meet RCPSC standards. This proposed change will bring this regulation up to date with the current process in Canada for accrediting fami- ly medicine postgraduate training, and will provide clarity to applicants.

Additionally, this proposal makes a non−substantive correction, changing the word “on” to “for” so that the language correctly reads: “Accreditation Council for Graduate Medical Education,” as this is the correct name for the ACGME. The proposed change to

section 1321(

b) will remove obsolete language referencing the list of approved post- graduate training programs approved by the Board. The most current list of approved programs is available di- rectly through the accrediting agencies, and it is not necessary nor efficient for the Board to keep a separate list of approved postgraduate training programs. Further,

section 1321(

b) will be amended to indicate that postgraduate training programs located in the Unit- ed States and/or its territories accredited by the AOA that have received pre−accreditation or initial accredi- tation status by the ACGME shall be approved for post- graduate training. This change is necessary to reflect the move to a single graduate medical education (GME) ac- creditation system in the United States beginning in 2014.

The single GME accreditation system allows graduates of allopathic and osteopathic medical schools to complete their residency and/or fellowship education in ACGME−accredited programs and demonstrate achievement of common milestones and competencies. This change broadens access to training by permitting all eligible residency applicants to enter any accredited program in the United States, and to transfer from one accredited program to another without having to repeat training.

A status of pre−accreditation signifies that a program already approved by the AOA for postgraduate training has initiated the process of attaining ACGME accredi- tation while still under AOA approval. A status of initial accreditation means that the pro- gram’s ACGME Review Committee has determined that it is in substantial compliance with the applicable program requirements. Once an AOA−accredited program is fully accredited by the ACGME, it will fall under CCR

section 1321(a), but until then, to clarify that the Board will accept those programs that have received pre−accreditation or initial accreditation status, this regulatory change is necessary. C. Consistency and Compatibility with Existing State Regulations During the process of developing these regulations and amendments, the Board has conducted a search of any similar regulations on this topic and has concluded that these regulations are neither inconsistent nor in- compatible with existing state regulations.

FISCAL IMPACT ESTIMATES Fiscal Impact on Public Agencies Including Costs or Savings to State Agencies or Costs/Savings in Federal Funding to the State: None. Nondiscretionary Costs/Savings to Local Agencies: None. Local Mandate: None. Cost to Any Local Agency or School District for Which Government Code Sections 17500−17630 Require Reimbursement: None.

Business Impact: The Board has made an initial determination that the proposed regulatory action would have no significant statewide adverse economic impact directly af fecting businesses, including the ability of California business- es to compete with businesses in other states. This ini- tial determination is based on the fact that the proposed amendments to

section 1321 will only update the lan- guage in this

section for consistency with current ac- creditation practices and eliminate confusion regarding postgraduate training requirements to be eligible for a California physician’s and surgeon’s license.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 143 Cost Impact on Representative Private Person or Business: The Board is not aware of any cost impacts that a rep- resentative private person or business would necessari- ly incur in reasonable compliance with the proposed action. Effect on Housing Costs: None. EFFECT ON SMALL BUSINESS The Board has determined that the proposed regula- tion will not affect small businesses, since the proposed amendments to

section 1321 will only update the lan- guage for consistency with current accreditation prac- tices to eliminate confusion regarding postgraduate training requirements to be eligible for a California physician’s and surgeon’s license. RESULTS OF ECONOMIC IMPACT ASSESSMENT/ANALYSIS Impact on Jobs/Businesses: The Board has determined that this regulatory pro- posal will not have a significant impact on the creation of jobs or new businesses or the elimination of jobs or existing businesses or the expansion of businesses in the State of California.

This determination has been made based upon the fact that the proposed amendments only update the language for consistency with current ac- creditation practices to eliminate confusion regarding postgraduate training requirements to be eligible for a California physician’s and surgeon’s license. Benefits of Regulation: The benefit of amending

section 1321 is to further de- fine BPC sections 2037, 2065, 2066, 2096, 2102 and 2103 to update the language for consistency with cur- rent accreditation practices to eliminate confusion re- garding postgraduate training requirements to be eligi- ble for a California physician’s and surgeon’s license. This regulatory action furthers the goal of consumer protection through the proper licensing and regulation of health care professionals as well as enforcing the Medical Practice Act.

CONSIDERATION OF ALTERNATIVES The Board must determine that no reasonable alterna- tive it considered or that has otherwise been identified and brought to its attention would be more effective in carrying out the purpose for which the action is pro- posed or would be as effective as and less burdensome to affected private persons than the proposed action or would be more cost−effective to affected private per- sons and equally effective in implementing the statuto- ry policy or other provision of law.

Any interested person may present statements or ar- guments orally or in writing relevant to the above deter- minations at the above−mentioned hearing. INITIAL STATEMENT OF REASONS AND INFORMATION The Board has prepared an initial statement of rea- sons for the proposed action and has available all the in- formation upon which the proposal is based.

TEXT OF PROPOSAL Copies of the exact language of the proposed regula- tions, and any document incorporated by reference, and of the initial statement of reasons, and all of the infor- mation upon which the proposal is based, may be ob- tained at the hearing or prior to the hearing upon request from the person designated in the Notice under Contact Person, below, or by accessing the Board’s website at: http://www.mbc.ca.gov/About_Us/Laws/Proposed_ Regulations.

A V AILABILITY AND LOCATION OF THE FINAL STATEMENT OF REASONS AND RULEMAKING FILE All the information upon which the proposed regula- tions are based is contained in the rulemaking file which is available for public inspection by contacting the per- son named below. You may obtain a copy of the final statement of rea- sons once it has been prepared, by making a written re- quest to the contact person named below or by access- ing the website listed below.

CONTACT PERSON Inquiries or comments concerning the proposed rule- making action may be addressed to: Name: April Alameda Address: Medical Board of California 2005 Evergreen St., Ste. 1200 Sacramento, CA 95815 Telephone No.: (916) 263−2382 Fax No.: (916) 263−2387 E−Mail Address: regulations@mbc.ca.gov

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 144 The backup contact person is: Name: Michael Briscoe Address: Medical Board of California 2005 Evergreen St, Ste. 1200 Sacramento, CA 95815 Telephone No.: (916) 274−5797 Fax No.: (916) 263−2387 E−Mail Address: michael.briscoe@mbc.ca.gov Website Access: Materials regarding this proposal can be found at http://www.mbc.ca.gov/About_Us/ Laws/ Proposed_Regulations. GENERAL PUBLIC INTEREST DEPARTMENT OF FISH AND WILDLIFE FISH AND GAME CODE

SECTION 1653 CONSISTENCY DETERMINATION REQUEST FOR Little Lost Man Creek Fish Passage Project (Tracking Number: 1653−2019−031−001−R1) Humboldt County California Department of Fish and Wildlife (CDFW) received a Request to Approve on January 14, 2019, that the California Department of Transportation pro- poses to carry out a habitat restoration or enhancement project pursuant to Fish and Game Code

section 1653. The proposed project involves replacing an existing concrete box culvert with a single−span bridge on Little Lost Man Creek, a tributary to Prairie Creek. Addition- ally, bioengineered bank stabilization will occur just downstream of the new bridge to address erosion as a result of the outdated box culverts. The proposed project will be carried out on Little Lost Man Creek, lo- cated 2.5−miles north of Orick on U.S. Highway 101 (US 101) at post mile (PM) 124.49 where Little Lost Man Creek flows under US 101, Humboldt County, California.

On November 29, 2018, the North Coast Regional Water Quality Control Board (Regional Water Board) received a Notice of Intent (NOI) to comply with the terms of, and obtain coverage under, the General 401 Water Quality Certification Order for Small Habitat Restoration Projects (General 401 Order) for the Little Lost Man Creek Fish Passage Project.

The Regional Water Board determined that the Project, as described in the NOI, was categorically exempt from California Environmental Quality Act (CEQA) review (section 15333 — Small Habitat Restoration Projects) and met the eligibility requirements for coverage under the Gen- eral 401 Order. The Regional Water Board issued a No- tice of Applicability (WDID No. 1B180166WNHU; ECM PIN No. CW−853960) for coverage under the General 401 Order on December 13, 2018.

The California Department of Transportation is re- questing a determination that the project and associated documents are complete pursuant to Fish and Game Code

section 1653 subdivision (d). If CDFW deter- mines the project is complete, the District will not be re- quired to obtain an incidental take permit under Fish and Game Code

section 2081 subdivision (

b) or a Lake or Streambed Alteration Agreement under Fish and Game Code

section 1605 for the proposed project. In accordance with Fish and Game Code

section 1653 subdivision (e), if CDFW determines during the review, based on substantial evidence, that the request is not complete, the California Department of Transportation will have the opportunity to submit under Fish and Game Code

section 1652.

DEPARTMENT OF FISH AND WILDLIFE HABITAT RESTORATION AND ENHANCEMENT ACT CONSISTENCY DETERMINATION NO. 1653−2018−030−001−R4 Project: Los Padres Dam Gravel Augmentation Project Location: Monterey County Applicant: Larry Hampson, Monterey Peninsula Water Management District Notifier: Josh Harwayne, Denise Duffy and Associates Background Project Location: The Los Padres Dam Gravel Aug- mentation Project (Project) is located in the Carmel River immediately downstream of the Los Padres Dam plunge pool at river mile 24.8, approximately 1.5 miles upstream from the confluence with Cachagua Creek, at a property owned by California−American Water Com- pany, Assessor Parcel Number (APN) 418−191−005.

The Carmel River supports the federally threatened south−central California coast steelhead (On- corhynchus mykiss). Project Description: The Monterey Peninsula Water Management District (Applicant) proposes to enhance or restore habitat within the Carmel River to provide a net conservation benefit for south−central California coast steelhead. The Project includes gravel augmenta-

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 145 tion to the Carmel River downstream of the Los Padres Dam, which blocks sediment transport downstream, and removal of an old, nonfunctioning fish ladder. Applicant will place clean, imported, river−run, spawning−sized (1.5−inch to 4−inch diameter), round- ed gravel into the channel of the Carmel River over an estimated 5−day interval during the low−flow period, at three locations within an approximately 300−foot reach downstream of the Los Padres Dam spillway.

Gravel will subsequently be carried downstream by high river flows and is expected to provide spawning habitat for steelhead in a river reach where gravels have been flushed from the area by river flow and not replenished, due to the dam. Up to 1,500 tons (approximately 1,071 cubic yards) of gravel will be placed in the first year, and each subsequent year up to 1,500 tons of gravel will be added over an estimated 5−day interval each time to re- plenish the channel. Applicant will also remove a 100−foot long Alaskan steeppass fish ladder that is no longer functioning and has already been replaced.

The fish ladder consists of concrete walls with a steel grate over the top, all of which will be removed using a combination of hand tools (e.g., concrete saw and/or pneumatic jackham- mer) and heavy construction equipment to haul material away. Project Size: The total area of ground disturbance as- sociated with the Project is approximately 0.23 acres and approximately 300 linear feet. The proposed Project complies with the General 401 Certification for Small Habitat Restoration Projects and associated cate- gorical exemption from the California Environmental Quality Act (Cal. Code Regs., tit. 14, § 15333).

Project Associated Discharge: Discharge of materials into Waters of the State, as defined by Water Code sec- tion 13050 subdivision (e), resulting from the Project include those associated with the following: gravel.

Project Timeframes: Start date: June 2019 Completion date: June 2024 Work window: June 15−October 15 Water Quality Certification Background: Because the Project’s primary purpose is habitat restoration in- tended to improve the quality of waters in California and to provide and enhance steelhead spawning and rearing habitat, the Central Coast Regional Water Qual- ity Control Board (Regional Water Board) issued a No- tice of Applicability (NOA) for Coverage under the State Water Resources Control Board General 401 Wa- ter Quality Certification Order for Small Habitat Restoration Projects SB12006GN (Order) (Waste Dis- charge Identification (WDID) No. 32718WQ18 for the Project.

The NOA describes the Project and requires the Applicant to comply with terms of the Order. Addition- ally, the Applicant has provided a supplemental docu- ment that sets forth measures to avoid and minimize im- pacts to steelhead and California red−legged frog (Rana draytonii). Receiving W ater: Carmel River. Filled or Excavated Area: Permanent area impacted: none Temporary area impacted: 0.23 acres Length temporarily impacted: 300 linear feet Length permanently impacted: 0 linear feet Dredge V olume: None.

Discharge V olume: 1,500 tons (approximately 1,071 cubic yards) of imported 1.5−inch to 4−inch diameter river−run gravel annually. Project Location: Latitude 36.388461 N. and Longi- tude −121.666625 W., (NAD 83); APN: 418−191−005. Regional Water Board staff determined that the Project may proceed under the Order. Additionally, Re- gional Water Board staff determined that the Project, as described in the Notice of Intent (NOI) complies with the California Environmental Quality Act (Pub. Re- sources Code, § 21000 et seq.).

On December 17, 2018, the Director of CDFW re- ceived a notice from the Applicant requesting a deter- mination pursuant to Fish and Game Code

Section 1653 that the NOA, NOI, and related species protection mea- sures are consistent with the Habitat Restoration and Enhancement Act (HREA) with respect to the Project. Pursuant to Fish and Game Code

section 1653 subdi- vision (c), CDFW filed an initial notice with the Office of Administrative Law on December 18, 2018, for pub- lishing in the General Public Interest

section of the Cali- fornia Regulatory Notice Register (Cal. Reg. Notice File Number Z−2018−1218−05) on December 28, 2018. Upon approval, CDFW will file a final notice pursuant to Fish and Game Code

section 1653 subdivi- sion (f). Determination CDFW has determined that the NOA, NOI, and relat- ed species protection measures are consistent with HREA as to the Project and meet the conditions set forth in Fish and Game Code

section 1653 for authorizing the Project. Specifically, CDFW finds that:

(1) The Project pur- pose is voluntary habitat restoration and the Project is not required as mitigation; (2) the Project is not part of a regulatory permit for a non−habitat restoration or en- hancement construction activity, a regulatory settle- ment, a regulatory enforcement action, or a court order; and (3) the Project meets the eligibility requirements of the State Water Resources Control Board’s Order for

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 146 Clean Water Act

Section 401 General Water Quality Certification for Small Habitat Restoration Projects. Avoidance and Minimization Measures The avoidance and minimization measures for Project, as required by Fish and Game Code

section 1653, subdivision (b)(4), were included in an attach- ment to the NOI, which includes seasonal activity limi- tations and general measures to avoid and minimize im- pacts to biological resources, including pre−activity surveys by qualified biologists and monitoring during implementation by a qualified biologist. The specific avoidance and minimization requirements are found in an attachment to the NOI, Los Padres Dam Gravel Aug- mentation Project Description, and the Steelhead Spawning Gravel Enhancement — Below Los Padres Dam Fisheries Restoration Grant (FRGP) #P1240401,01 Final Project Report March 31, 2017. Monitoring and Reporting As required by Fish and Game Code

section 1653, subdivision (g), the Applicant included a copy of the monitoring and reporting plan. The Applicant’s Moni- toring and Reporting Plan provides a timeline for restoration, performance standards, and monitoring pa- rameters and protocols. Specific requirements of the plan are found in an attachment to the NOI and the Steelhead Spawning Gravel Enhancement — Below Los Padres Dam Fisheries Restoration Grant (FRGP) #P1240401,01 Final Project Report March 31, 2017.

Notice of Completion Coverage under the State Water Resources Control Board General 401 Water Quality Certification Order for Small Habitat Restoration Projects requires the Ap- plicant to submit a Notice of Completion (NOC) no lat- er than 30 days after the project has been completed. A complete NOC includes at a minimum: • photographs with a descriptive title; • date the photograph was taken; • name of the photographic site; • WDID number indicated above; • success criteria for the Project.

The NOC shall demonstrate that the Applicant has carried out the Project in accordance with the Project description as provided in the Applicant’s NOI. Appli- cant shall include the project name, and WDID number with all future inquiries and document submittals. Pur- suant to Fish and Game Code

section 1653, subdivision (g), the Applicant shall submit the monitoring plan, monitoring report, and notice of completion to CDFW as required by the General Order. Applicant shall sub- mit documents electronically to: linda.connolly@ wildlife.ca.gov. Project Authorization Pursuant to Fish and Game Code

section 1654, CDFW’s approval of a habitat restoration or enhance- ment project pursuant to

section 1652 or 1653 shall be in lieu of any other permit, agreement, license, or other approval issued by the department, including, but not limited to, those issued pursuant to

Chapter 6 (com- mencing with

section 1600) and

Chapter 10 (commenc- ing with

section 1900) of this Division and

Chapter 1.5 (commencing with

section 2050) of Division 3. Addi- tionally, Applicant must adhere to all measures con- tained in the approved NOA, and comply with other conditions described in the NOI. If there are any substantive changes to the Project or if the Water Board amends or replaces the NOA, the Ap- plicant shall be required to obtain a new consistency de- termination from CDFW. (See generally Fish & G.

Code, § 1654, subd. (c).) DEPARTMENT OF FISH AND WILDLIFE PROPOSED RESEARCH ON FULLY PROTECTED SPECIES Monitoring Golden Eagle and Bald Eagle Nest Sites The Department of Fish and Wildlife (Department) received a study proposal from Lauren McClure, on be- half of Stillwater Sciences, requesting authorization to take Golden Eagle (Aquila chrysaetos) and Bald Eagle (Haliaeetus leucocephalus), both Fully Protected birds, for scientific research purposes, consistent with conser- vation and recovery of the species. The Bald Eagle is listed as Endangered under the California Endangered Species Act. Ms.

McClure is planning to conduct studies through- out the range of the two eagle species in California, in accordance with standardized methods approved by the Department and the U.S. Fish and Wildlife Service (Service). The research activities include passive ground surveys and aerial helicopter surveys to locate nests to determine nest occupancy, success and produc- tivity. No adverse effects on individuals or populations are expected. Salvage activities may also be authorized for scientific purposes.

The Department intends to issue, under specified conditions, a Memorandum of Understanding (MOU) that would authorize qualified professional wildlife re- searchers, with Ms. McClure as the Principal Investiga- tor, to carry out the proposed activities. Pursuant to California Fish and Game Code (FGC)

Section 3511(a)(1), the Department may authorize take of Fully Protected bird species after a 30−day notice pe-

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 147 riod has been provided to affected and interested parties through publication of this notice. If the Department de- termines that the proposed research is consistent with the requirements of FGC

Section 3511 for take of Fully Protected birds, it would issue the authorization on or after February 25, 2019, for an initial and renewable term of up to, but not to exceed three years. Contact: Carie Battistone, Carie.Battistone@wildlife.ca.gov, 916−445−3615.

DEPARTMENT OF FISH AND WILDLIFE PROPOSED RESEARCH ON FULLY PROTECTED SPECIES Research on American Peregrine Falcon The Department of Fish and Wildlife (Department) received a proposal on January 26, 2018 from Zeka Glucs, on behalf of the Santa Cruz Predatory Bird Re- search Group, Santa Cruz, California, requesting autho- rization to take American Peregrine Falcon (Falco peregrinus anatum) (‘falcon’), a Fully Protected bird, for scientific research purposes consistent with conser- vation and recovery of the species. Ms.

Glucs proposes to study the falcon in Alameda, Santa Cruz, Marin, Solano, Monterey, Contra Costa, Santa Clara, San Francisco, Sonoma, and San Mateo counties, in accordance with methods approved by the Department. The proposed research consists of moni- toring active nests, accessing nests to band and collect biological samples from nestlings for the purpose of un- derstanding nest success and productivity, dispersal and survival of the species. Ms.

Glucs and any others deemed qualified by the Department, would collect da- ta by live capturing, measuring, banding, color−mark- ing, and collecting feather, oral/fecal swabs, and blood from the falcon. No adverse effects on individual fal- cons or falcon populations are expected. Other research locations and activities may be added by the Depart- ment in the future. If any falcons are found dead, they will be salvaged (including any parts thereof) and do- nated to a scientific institution open to the public, as designated by the Department.

The Department intends to issue, under specified conditions, a Memorandum of Understanding (MOU) to authorize qualified professional wildlife researchers, with Ms. Glucs as the Principal Investigator, to carry out the proposed research activities on the falcon. Ms. Glucs is also required to possess valid federal permits for the falcon research, and a scientific collecting per- mit to incidentally take other bird species in California. Pursuant to California Fish and Game Code (FGC)

Section 3511(a)(1), the Department may authorize take of Fully Protected bird species after a 30 day notice pe- riod has been provided to affected and interested parties through publication of this notice. If the Department de- termines that the proposed research is consistent with the requirements of FGC

Section 3511 for take of Fully Protected birds, it would issue the authorization on or after February 25, 2019, for an initial and renewable term of up to, but not to exceed four years. Contact: Carie Battistone, Carie.Battistone@wildlife.ca.gov, 916−445−3615. FISH AND GAME COMMISSION NOTICE OF FINDINGS Humboldt Marten (Martes caurina humboldtensis) NOTICE IS HEREBY GIVEN that the California Fish and Game Commission (Commission), at a meet- ing in Fortuna, California on August 23, 2018, found pursuant to Fish and Game Code

Section 2075.5, that the information contained in the petition to list Hum- boldt marten (Martes caurina humboldtensis) and other information in the record before the Commission, war- rants adding the Humboldt marten to the list of endan- gered species under the California Endangered Species Act (CESA) (Fish & G. Code, § 2050 et seq.). (See also Cal. Code Regs., tit. 14, § 670.1, subsec. (i).) NOTICE IS ALSO GIVEN that, at its December 13, 2018 meeting in Oceanside, California, the Com- mission adopted the following findings outlining the reasons for its determination. I.

Background and Procedural History Petition History The Environmental Protection Information Center and the Center for Biological Diversity , as joint peti- tioners, submitted a “Petition to List Humboldt Marten (Martes caurina humboldtensis) as an Endangered Species under the California Endangered Species Act” (Petition) to the Commission on June 8, 2015. Commis- sion staff transmitted the petition to the California De- partment of Fish and Wildlife (Department) pursuant to Fish and Game Code

Section 2073 on June 18, 2015, and published a formal notice of receipt of the petition on July 24, 2015 (Cal. Reg. Notice Register 2015, No. 30−Z, p. 1237). On November 11, 2015, the Department transmitted to the Commission its evaluation of the petition: “Eval- uation of the Petition from the Environmental Protec- tion Information Center and the Center for Biological Diversity to List the Humboldt Marten (Martes caurina humboldtensis) as Endangered Under the California

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 148 Endangered Species Act” (petition evaluation). The Commission formally received the Department’s peti- tion evaluation at a meeting on December 10, 2015 in San Diego, California (Fish & G. Code, §§ 2073.5 & 2074.2; Cal. Code Regs., tit. 14, § 670.1, subsec. (d) & (e)). At its public meeting on February 11, 2016, in Sacramento, California, the Commission considered the petition, the Department’s petition evaluation and recommendation, and comments received.

The Com- mission determined that sufficient information existed to indicate the petitioned action may be warranted and accepted the petition for consideration. Upon publica- tion of the Commission’s notice of its findings, the Humboldt marten was designated a candidate species on February 26, 2016 (Cal. Reg. Notice Register 2016, No. 9−Z, p. 290). Status Review Overview The Commission’s action designating the Humboldt marten as a candidate species triggered the Depart- ment’s process for conducting a status review to inform the Commission’s decision on whether to list the species.

At its scheduled public meeting on February 8, 2017, in Rohnert Park, California, the Commission granted the Department a six−month extension to com- plete the status review and facilitate external peer re- view. The Department transmitted to the Commission the Department’s report to the Commission titled “A Status Review of Humboldt Marten (Martes caurina humboldtensis) in California” (Status Review) on June 20, 2018. And on June 21, 2018, the Commission for- mally received the Department’s Status Review.

On August 23, 2018, in Fortuna, California, the Commis- sion found that the information contained in the petition to list the Humboldt marten and the other information in the record before the Commission warrants listing the Humboldt marten as an endangered species under the California Endangered Species Act. Species Description Martens have yellowish to dark brown fur with a con- trasting lighter chest patch, the long, sleek body form typical of members of the mustelid (weasel) family, a relatively long bushy tail, and typically weigh 0.4−1.25 kilograms (0.88−2.76 pounds).

Humboldt martens in California have subtle physiological differences from Sierra martens (M. caurina sierra) which also occur in California. Within California, Humboldt martens his- torically occupied near−coastal forests from Sonoma County north to the Oregon border; however, the cur- rent distribution within the state is limited to two small areas of Del Norte, northern Humboldt, and western Siskiyou counties, a small fraction of the historical range.

Humboldt martens breed once per year and females typically first give birth at two years of age and reach peak productivity from three to five years of age, al- though not all females attempt to breed each year. Kits are born in natal dens where they remain completely de- pendent on the mother for seven to eight weeks, after which the mother typically moves them to one or a se- ries of maternal dens until the kits disperse, typically in late summer.

Dispersal distances of Humboldt martens are largely unknown, but likely similar to distances of other North American martens, which typically average less than 15 kilometers (9.3 miles). Available informa- tion suggests that home ranges of Humboldt martens fall within the Sierra marten home range sizes in Cali- fornia of 70−733 hectares (173−1,811 acres). In California, Humboldt martens subsist on a diet composed primarily of small mammals (squirrels, chip- munks, and voles) and birds, and to a lesser degree rep- tiles, fruits, and insects.

Known predators of martens in North America include bobcats (Lynx rufus), coyotes (Canis latrans), foxes (Vulpes vulpes), fishers (Pekania pennanti), and great−horned owls (Bubo virginianus), with bobcats being the primary predator of Humboldt martens in California. Humboldt martens in California are associated with two distinct habitat types: late−successional coastal redwood, Douglas−fir (Pseudotsuga menziesii), and mixed conifer forests with dense mature shrub layers; and serpentine habitats with variable tree cover, dense shrub cover, and rock piles and outcrops.

Consistent among the two habitat types is the requirement for den- ning, resting, escape cover, and shelter structures. In late−successional forests, structures used include tree cavities, defects, snags, and logs; while in serpentine habitats rock piles and outcrops are commonly used in addition to tree structures. Humboldt martens also rely on extensive stands of dense shrub cover in both habitat types. II.

Statutory and Legal Framework The Commission, as established by the California Constitution, has exclusive statutory authority under California law to designate endangered, threatened, and candidate species under CESA. (Cal. Const., art. IV , § 20, subd. (b); Fish & G. Code, § 2070.) The CESA listing process for the Humboldt marten began in the present case with the Petitioners’ submittal of the peti- tion to the Commission on June 8, 2015. The regulatory and legal process that ensued is described in some detail in the preceding

section above, along with related refer- ences to the Fish and Game Code and controlling regu- lation. The CESA listing process generally is also de- scribed in some detail in published appellate case law in California, including: • Mountain Lion Foundation v. California Fish and Game Commission (1997) 16 Cal.4th 105, 114−116;

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 149 • California Forestry Association v. California Fish and Game Commission (2007) 156 Cal.App.4th 1535, 1541−1542; • Center for Biological Diversity v. California Fish and Game Commission (2008) 166 Cal.App.4th 597, 600; • Natural Resources Defense Council v. California Fish and Game Commission (1994) 28 Cal.App.4th 1104, 1111−1116; • Central Coast Forest Association v. California Fish and Game Commission (2017), 2 Cal. 5th 594, 597−598; and • Central Coast Forest Association v. California Fish and Game Commission (2018) 18 Cal.

App. 5th 1191, 1196−1197. The “is warranted” determination at issue here for Humboldt marten stems from Commission obligations established by Fish and Game Code

Section 2075.5. Under this provision, the Commission is required to make one of two findings for a candidate species at the end of the CESA listing process; namely, whether list- ing a species is warranted or is not warranted. Here, with respect to the Humboldt marten, the Commission made the finding under

Section 2075.5(e)(2) that listing the species as endangered is warranted. The Commission was guided in making these deter- minations by statutory provisions and other controlling law. The Fish and Game Code, for example, defines an endangered species under CESA as “a native species or subspecies of a bird, mammal, fish, amphibian, reptile or plant which is in serious danger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, including loss of habitat, change in habitat, over exploitation, predation, competition, or disease.” (Fish & G.

Code, § 2062.) Similarly, the Fish and Game Code defines a threatened species under CESA as “a native species or subspecies of a bird, mam- mal, fish, amphibian, reptile or plant that, although not presently threatened with extinction, is likely to be- come an endangered species in the foreseeable future in the absence of the special protection and management efforts required by this chapter.” (Id., § 2067.) The Commission also considered Title 14,

Section 670.1, subsection (i)(1)(A), of the California Code of Regulations in making its determination regarding Humboldt marten. This provision provides, in pertinent part, that a species shall be listed as endangered or threatened under CESA if the Commission determines that the species’ continued existence is in serious dan- ger or is threatened by any one or any combination of six factors: 1. Present or threatened modification or destruction of its habitat; 2. Overexploitation; 3. Predation; 4. Competition; 5. Disease; or 6. Other natural occurrences or human−related activities. Fish and Game Code

Section 2070 provides similar guidance. This

section provides that the Commission shall add or remove species from the list of endangered and threatened species under CESA only upon receipt of sufficient scientific information that the action is warranted. Similarly, CESA provides policy direction not specific to the Commission per se, indicating that all state agencies, boards, and commissions shall seek to conserve endangered and threatened species and shall utilize their authority in furtherance of the purposes of CESA. (Fish & G.

Code, § 2055.) This policy direction does not compel a particular determination by the Com- mission in the CESA listing context. Nevertheless, “ ‘[l]aws providing for the conservation of natural re- sources’ such as the CESA ‘are of great remedial and public importance and thus should be construed liberal- ly.’ ” (California Forestry Association v. California Fish and Game Commission, supra, 156 Cal. App.4th at pp. 1545−1546, citing San Bernardino Valley Audubon Society v. City of Moreno Valley (1996) 44 Cal.App.4th 593, 601; Fish & G.

Code, §§ 2051, 2052.) Finally, in considering these factors, CESA and con- trolling regulations require the Commission to actively seek and consider related input from the public and any interested party. (See, e.g., Id., §§ 2071, 2074.4, 2078; Cal. Code Regs., tit. 14, § 670.1, subsec. (h).) The relat- ed notice obligations and public hearing opportunities before the Commission are also considerable. (Fish & G. Code, §§ 2073.3, 2074, 2074.2, 2075, 2075.5, 2078; Cal. Code Regs., tit. 14, § 670.1, subsec. (c), (e), (g), (i); see also Gov.

Code, § 11120 et seq.) All of these obliga- tions are in addition to the requirements prescribed for the Department in the CESA listing process, including an initial evaluation of the petition and a related recom- mendation regarding candidacy, and a review of the candidate species’ status culminating with a report and recommendation to the Commission as to whether list- ing is warranted based on the best available science. (Fish & G. Code, §§ 2073.4, 2073.5, 2074.4, 2074.6; Cal. Code Regs., tit. 14, § 670.1, subsec. (d), (f), (h).) III.

Factual and Scientific Bases for the Commission’s Final Determination The factual and scientific bases for the Commission’s determination that designating the Humboldt marten as an endangered species under CESA is warranted are set forth in detail in the Commission’s record of proceed- ings including the Petition, the Department’s Petition Evaluation Report, the Department’s status review, written and oral comments received from members of

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 150 the public, the regulated community, tribal entities, the scientific community and other evidence included in the Commission’s record of proceedings. The Commission determines that the continued exis- tence of the Humboldt marten in the State of California is in serious danger or threatened by one or a combina- tion of six factors as required by the California Code of Regulations Title 14,

Section 670.1, subsection (i)(1)(A): 1. Present or threatened modification or destruction of its habitat; 2. Overexploitation; 3. Predation; 4. Competition; 5. Disease; or 6. Other natural occurrences or human−related activities. The Commission also determines that the informa- tion in the Commission’s record constitutes the best sci- entific information available and establishes that desig- nating the Humboldt marten as an endangered species under CESA is warranted.

Similarly, the Commission determines that the Humboldt marten is in serious dan- ger of becoming extinct throughout all, or a significant portion, of its range due to one or more causes, includ- ing loss of habitat, change in habitat, overexploitation, predation, competition, or disease. The items highlighted here and detailed in the follow- ing

section represent only a portion of the complex is- sues aired and considered by the Commission during the CESA listing process for the Humboldt marten. Similarly, the issues addressed in these findings repre- sent some, but not all, of the evidence, issues, and con- siderations affecting the Commission’s final determi- nation. Other issues aired before and considered by the Commission are addressed in detail in the record before the Commission, which record is incorporated herein by reference.

Background The Commission bases its “is warranted” finding for the Humboldt marten most fundamentally on the fact that that historic trapping and habitat loss has extirpated Humboldt martens from significant portions of the species’ range. Additionally, historic and ongoing habi- tat loss, habitat fragmentation, and associated elevated predation rates, coupled with ongoing threats to the species from a small population size, disease, toxicants, wildfire, and climate change place the remaining Cali- fornia Humboldt marten population at risk of extinction.

Threats Present or Threatened Modification or Destruction of Habitat Modification to the structure and landscape configu- ration of Humboldt marten habitat can negatively im- pact survival, reproduction, and population connectivi- ty of the species (CDFW Status Review 2018).

Timber harvest and other silvicultural treatments of older forests; wildland fires, salvage logging, and fuel reduc- tion projects; development of coastal forests for human settlement; and the clearing of forests for the cultivation of cannabis can all lead to loss, degradation, and frag- mentation of Humboldt marten habitat (CDFW Status Review 2018). The USFWS

(2015) Humboldt marten species report concluded habitat loss and degradation from historical and current logging is the most plausible reason the marten is absent from much of its historical range, noting most of the remaining suitable habitat is located on federally owned land (Zielinski et al. 2001). Forest conditions in the range of the Humboldt marten today have largely been shaped by a legacy of over 100 years of logging and timber management (CDFW Status Review 2018).

It is estimated that the area of old growth conifer forest in the Pacific North- west has been reduced by 72 percent since European settlement (Strittholt et al. 2006), and only 10 percent of the historical range of redwood forests remains in old growth stands today (Fox 1996). While timber harvest continues in the area, the logging of old growth forest stands on private and public lands has dramatically slowed from peaks in the second half of the 20th Centu- ry.

Today, 33 percent of remaining old forest on federal lands in the Northwest Forest Plan area is fully protect- ed from harvest, and 80 percent is afforded some level of management protection (Strittholt et al. 2006). The rate of timber harvest on private lands in the area has de- clined in recent decades due to more restrictive regula- tions and market conditions (CDFW Status Review 2018). Harvest on federal lands declined sharply fol- lowing implementation of the Northwest Forest Plan in 1994 (Strittholt et al. 2006).

The area of older forests (OGSI−200) on federal lands in the coastal and Kla- math mountains of northwestern California declined 8.4 percent from 1993−2012, largely due to wildfires, while the area of older forests on non−federal lands in- creased 1.3 percent, despite losses to timber harvest (Davis et al. 2015). While recent losses of old forest stands in the Humboldt marten range have been rela- tively small, forest stands degraded and fragmented from historical logging will take decades to recover dense ericaceous shrub layers and centuries to recruit the large tree structures needed to restore high quality

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 151 Humboldt marten habitat conditions (Slauson and Zielinski 2009). Wildfires and associated salvage logging of damaged trees can threaten the already small Humboldt marten population by reducing and fragmenting the remaining habitat (Slauson and Zielinski 2004). On federal lands in north coastal California there was a net 5.6 percent loss of old forest habitat over the period of 1993−2012 despite gains from forest succession; this loss was pri- marily attributed to wildfires (Davis et al. 2015).

Con- nectivity between old forest stands was found to have decreased over the same period, mainly due to fragmen- tation caused by wildfires (Davis et al. 2015). In south- west Oregon the 2002 Biscuit Complex Fire burned 229,388 hectares (566,829 acres) and the 2017 Chetco Bar Fire burned an additional contiguous 77,346 hectares (191,125 acres) between the southern Oregon Humboldt marten population and the California− Oregon border population, perhaps functionally isolat- ing the two populations from one another (CDFW Sta- tus Review 2018).

Vegetation management activities designed to reduce the risk of wildland fire by removing shrubs, reducing canopy cover, and removing snags and logs impact martens by removing required habitat structures and shrub cover which can reduce prey abundance and im- prove access for competitors (USFWS 2015).

On feder- al lands, salvage logging and fuels management activi- ties can occur on all land allocation categories except for wilderness areas (Hamlin et al. 2010), and on private lands salvage logging plans are exempt from normal re- view procedures and are automatically approved by the California Department of Forestry and Fire Protection (CAL FIRE) through a ministerial process if all applica- ble Forest Practice Rules are abided (Title 14, CCR §1052).

Thinning and fuel reduction management can frag- ment and degrade Humboldt marten habitat; however, severe wildfires can also substantially fragment and de- grade marten habitat (CDFW Status Review 2018). Im- plementing fuel reduction treatments (mechanical or prescribed fire) on as little as 10−20 percent of the land- scape significantly reduced the probability of Pacific marten habitat loss from wildfires (Moriarty et al. 2017).

Modelling has shown that prescribed fire and mechanical thinning fuel reduction treatments in and surrounding marten habitat would limit the spread of large wildfires; treating only the landscape outside of predicted marten habitat was shown to be equally as ef- fective as conducting fuel reduction treatments in marten habitat, so long as at least 30 percent of the land- scape is available for treatment (Credo 2017).

Howev- er, modeling also showed that excluding fuel treatments from all predicted marten habitat in watersheds in- creased the risk of net loss of marten habitat from wild- fires over time (CDFW Status Review 2018). Manage- ment for the creation and conservation of resilient Humboldt marten habitat will require land managers to carefully plan for both habitat patches and fuel reduc- tion zones over the landscape over time.

Habitat loss and degradation from human settlement and residential development rapidly increased in the 1850s when pioneers of European descent began har- vesting lumber, farming, mining, and fishing along Cal- ifornia’s north coast (Del Norte County Community Development Department 2003).

Since that time minor portions of the historical range have been converted from forests to urban areas, primarily in and around Crescent City, Humboldt Bay, Fortuna, Fort Bragg, and Willits; and much of the historical range south of Del Norte County has been parceled and occupied by very low density housing (=1 housing unit/16 hectares [40 acres])(Cal Fire 2010). However, the core population area currently occupied by Humboldt martens in Cali- fornia is almost entirely unoccupied by humans, with the exception of some areas adjacent to the Klamath River on Yurok Tribal lands (Cal Fire 2010).

Low− density human occupancy does not necessarily result in the loss of mature forest habitat favored by martens, but human occupancy likely renders such areas unsuitable for martens (CDFW Status Review 2018). Impacts from the presence of humans, livestock, and pets, the construction and use of rural roads, and the use of household pesticides can frighten wildlife away, intro- duce novel predators, diseases, and toxicants, deplete prey populations, and degrade and fragment habitat (Merenlender et al. 2009).

While further human devel- opment of the historical range will likely continue into the future, a modeled analysis of future land conver- sions under several human population growth scenarios found the probability of significant conversions to ur- ban and agricultural uses in the northwest California coast region to be very low for the remainder of this cen- tury (Sleeter et al. 2017).

Large−scale marijuana cultivation in remote forests throughout California has increased since the mid−1990s, coinciding with the 1996 passage of Propo- sition 215, the Compassionate Use Act of 1996 (Health & Safety Code, § 11362.5), which allowed the legal use and growth of marijuana for certain medical purposes (Bauer et al. 2015). Humboldt and Del Norte counties are known centers of legal and illegal cannabis cultiva- tion in California due to the remote and rugged nature of the land and abundant water sources (National Drug In- telligence Center 2007, Bauer et al. 2015).

The recent passage of California Proposition 64, the Control, Reg- ulate and Tax Adult Use of Marijuana Act, further de- criminalized the adult use of cannabis for recreational use beginning in January 2018 (CDFW Status Review 2018). In 2017, the California Legislature approved the

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 152 Medical and Adult Use of Cannabis Regulation and Safety Act which provides state and local governments the authority to regulate the production and processing of cannabis products, including regulation of the envi- ronmental impacts from growing cannabis (CDFW Sta- tus Review 2018). The impact these new laws will have on the conversion of forests for the production of cannabis is uncertain (CDFW Status Review 2018).

A recent study found the majority of cannabis cultivation sites in Humboldt County were located >500 meters (1,640 feet) from the nearest road, indicating cultiva- tion may contribute to landscape fragmentation, al- though the amount of land area under cannabis cultiva- tion was found to be minor, at less than 1 percent of the land under organic crop cultivation (Bustic and Brenner 2016). The extent to which land clearing for legal and il- legal cannabis cultivation contributes to Humboldt marten habitat loss and degradation is unknown.

Large Tree Structures and Tree and Shrub Canopy Cover Both large tree structures and tree and shrub canopy cover are requisite Humboldt marten habitat features (CDFW Status Review 2018). These requisite features are likely particularly at risk from habitat loss and degradation resulting from the above activities (CDFW Status Review 2018).

The large tree structures used by Humboldt martens for resting, denning, and cover from predators were typ- ically removed during timber harvests, both during ini- tial harvests of original−growth forests as well as through harvest of “residual” old growth trees in subse- quent entries in second−growth forests (Slauson et al. 2010, USFWS 2015).

Delheimer (2015) compared the availability of potential Humboldt marten rest site structures (large trees, snags, logs, slash piles, plat- forms, and cavities) in occupied and unoccupied second−growth forest study sites in northern California and found there were significantly more structures available in the occupied sites. Large diameter trees, snags, and downed logs with cavities and platforms used as resting and denning structures by Humboldt martens are significantly reduced in second−growth forest stands compared to old growth stands (Slauson et al. 2003, Slauson et al. 2010).

In Douglas−fir stands these structures begin to rapidly accumulate at 200−350 years of age (Franklin et al. 2002) and in second− growth stands it is estimated that it could take more than 200 years to recruit such structures (Slauson et al. 2010). The minimum age of live and dead tree struc- tures used for resting by martens in north coastal Cali- fornia was 176 and 254 years, respectively (Slauson and Zielinski 2009). Other silvicultural treatments also reduce marten habitat structures (CDFW Status Review 2018).

For ex- ample, thinned stands (n=26) have been found to have significantly fewer potential resting and denning struc- tures than Humboldt marten−occupied stands (n=7) (Slauson et al. 2010). Conversely, retention of woody structures during timber harvests (platforms in large trees, large diameter snags, slash piles, large diameter cull logs) appears to increase the probability of retain- ing marten populations in harvested forests (Slauson et al. 2010, Delheimer 2015).

Humboldt marten habitat suitability is reduced under most of the commonly used timber harvest methods, both through overstory canopy cover reduction and through loss of dense ericaceous shrub layers (Allgood 1996, USFWS 2015). Shrub layers can be destroyed or degraded through conifer stand management which fa- vors trees over shrubs (such as mechanical brush clear- ing and application of herbicides that target shrub species), and through the competitive exclusion of densely planted conifers which shade out understory shrubs (Franklin et al. 2002, Slauson et al. 2010).

Under the Z’berg−Nejedly Forest Practice Act, even−aged sil- vicultural methods on industrial north coast timber- lands may completely eliminate post−harvest canopy cover in clear cuts over areas of up to 16 hectares (40 acres). In practice, openings in Green Diamond Re- sources Company even−aged harvest units average ap- proximately 6 hectares (15 acres) (Green Diamond Re- source Company 2017). Such conditions, which are typically avoided by Pacific marten (Slauson 2017), persist for years until the regenerated stand achieves suitable canopy closure (CDFW Status Review 2018).

Shrub cover has been found to be more patchily dis- tributed in thinned stands than in old growth stands on federal forest lands (Slauson et al. 2010). Dense regen- erating conifer stands that were thinned were found to regenerate moderately dense shade−tolerant native species shrub layers within 15−30 years following thin- ning; however, shrub cover remained significantly low- er than levels found in the old growth redwood stands used by Humboldt martens (Slauson et al. 2010).

Given relatively short harvest rotations, typically less than 60 years (USDA 1992, Green Diamond Resource Compa- ny 2012, Yurok Tribal Forestry 2012) in the coastal forests of northern California, overstory conditions suitable for martens are likely to exist on only a propor- tion of the intensively managed landscape at any given time (CDFW Status Review 2018). Slauson et al. (2010) found that shrub flowering and fruiting are greatly reduced in stands thinned within the prior 30 years compared to stands occupied by martens.

Only 38 percent of thinned stands were observed with a fruiting or flowering shrub component, compared to fruiting or flowering in 100 percent of old forest stands occupied by Humboldt martens. In addition to directly

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 153 providing food for martens, fruiting shrubs support greater densities of marten prey animals such as small mammals, hornets and migratory birds (Slauson et al 2010).

Vegetation management activities designed to effi- ciently produce timber and reduce the risk of wildland fire by removing shrubs, reducing canopy cover, and re- moving snags and logs may negatively impact martens by removing required habitat structures and by remov- ing shrub cover which can reduce prey abundance and improve access for competitors and larger−bodied predators such as bobcats. Large−scale Habitat Fragmentation Forest fragmentation also threatens Humboldt marten individuals and populations (CDFW Status Re- view 2018).

Male and female Pacific martens in the Sierra Nevada avoided crossing open ski runs between forest patches wider than 18 meters (60 feet) and 13 me- ters (43 feet) respectively in the Sierra Nevada moun- tains (Slauson 2017). Individuals may be forced to move over greater distances to acquire food in frag- mented landscapes, increasing their energy costs and exposing them to more predators. Populations may be impacted by reducing the likelihood of successful juve- nile dispersal and the ability of breeding individuals to move safely between population areas (CDFW Status Review 2018).

Fragmented habitat conditions exist throughout much of the Humboldt marten’s historical and current range, and the four extant marten popula- tions in coastal California and Oregon appear to be iso- lated from one another by unsuitable habitat degraded by logging, severe wildfire, and urbanization (Slauson et al. 2017). Fragmentation of habitat can also be detri- mental at finer scales, where the fragments may not be large enough to support a single marten territory.

For example, the Redwood National and State Parks com- plex contains only three patches of late−successional forest greater than 2,023 hectares (5,000 acres) in area, with most patches less than 40 hectares (100 acres) in area (USFWS 2015). Slauson et al. (2017) concluded that early trapping combined with the extensive habitat loss and fragmen- tation from unregulated timber harvesting were the two factors most likely responsible for the decline in distri- bution and abundance of Humboldt martens.

Moriarty et al. (2016) suggested habitat fragmentation (both nat- ural and anthropogenic) is the most serious threat to martens in coastal Oregon. Similarly, Credo (2017) found that Pacific martens avoided forest stands follow- ing mechanical thinning and prescribed fire treatments on the Lassen National Forest. Degraded landscapes may lack obvious barriers to marten movement while at the same time acting as func- tional barriers to movement by decreasing the likeli- hood of daily survival and successful dispersal (CDFW Status Review 2018).

American marten dispersal dis- tances were found to decrease by approximately 50 per- cent in intensively logged forests in Ontario compared to unlogged forests, and the percent of juveniles suc- cessfully dispersing and establishing new territories de- clined from 49 percent in unlogged forests to 25 percent in logged forests (Johnson et al. 2009). Thompson (1994) found daily survival rates in recently harvested (3− to 40−year−old) forest stands in Ontario were nearly five times lower than in uncut forests.

Because roads favor generalist predators that prey on martens, crossing roads to move between fragmented patches of habitat means martens are more likely to en- counter a predator than if they were able to remain in dense shrub habitat (Slauson et al. 2010). Fragmenta- tion of dense shrub stands by roads also appears to con- fer a competitive advantage to generalist carnivores like fishers, gray foxes (Urocyon cinereoargenteus), and bobcats, which compete with and prey upon martens.

Slauson et al. (2010) found that 80 percent of camera detections of generalist carnivores such as gray fox and bobcats were on roads, while 80 percent of habitat spe- cialist carnivore (e.g. fisher and Humboldt marten) de- tections came from areas away from roads. The majori- ty of roads in the extant range of Humboldt martens in California are used periodically for the seasonal hauling of timber; however, U.S. Highway 101, which is a four− lane highway in some sections, lies between the extant core population and late seral redwood habitat in state and federal redwood parks to the west, and U.S.

High- way 199 closely parallels the California−Oregon popu- lation area. These highways may constitute a signifi- cant barrier to marten movement (S. Prokop and B. Sil- ver 6/29/2016 letter to CDFW). The amount of Humboldt marten habitat in California has been substantially reduced since the species’ range was first described by early naturalists, primarily as a result of past timber harvesting and timber production practices which removed the large tree structures and dense shrub layers martens require for denning and pro- tection from predators.

Although the rate of timber har- vesting appears to have decreased in recent years, it will take centuries to recruit large tree structures to replace what has been lost. Wildfire and the conversion of land to urban and agricultural uses including cannabis culti- vation have also contributed to habitat loss and degra- dation over the last century. Where habitat remains, de- graded conditions and fragmentation caused by roads, timber harvesting, cannabis cultivation, and other land use practices can limit its usefulness to the marten popu- lation.

Degraded and fragmented habitats may allow larger carnivores to colonize traditional Humboldt marten habitat potentially resulting in increased rates of

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 154 predation on martens. Because historical habitat loss and degradation severely limits the spatial extent of suitable habitat available to the population, it continues to pose a potentially significant threat to Humboldt martens (CDFW Status Review 2018).

However, in- creases in the extent of mature coastal forest and reduc- tions in habitat fragmentation from recruitment of large tree and shrub structure over the coming decades on protected lands could significantly contribute to the re- covery of Humboldt martens in California (CDFW Sta- tus Review 2018).

Some portions of the remaining occupied habitat are protected by wilderness and other land use designa- tions, but large areas remain vulnerable to continued timber harvesting and other uses which can fail to retain required habitat elements on the landscape, and virtual- ly all existing habitat is vulnerable to degradation and loss from wildfires (CDFW Status Review 2018).

Until additional areas of suitable forest habitat are allowed to develop with careful management and the passage of time, the limited extent of suitable habitat will continue to prevent recovery of the California Humboldt marten population for several decades at a minimum (CDFW Status Review 2018). Therefore, the continued exis- tence of the Humboldt marten in California is threat- ened by present or threatened modification or destruc- tion of its habitat.

Overexploitation Early trapping of Humboldt marten was intensive, with accounts of individual trappers taking 35−50 martens in a single winter (Grinnell et al. 1937). By the early 1900s annual harvest of Humboldt martens was already declining, prompting Joseph Dixon to call for closing the trapping season in California to prevent an extirpation; however, marten harvest continued until a partial closure was enacted in northwestern California in 1946, depleting populations and likely reducing ge- netic variation within the remaining population (Dixon 1925, Zielinski et al. 2001).

Today trapping of all martens is prohibited statewide (§ 460, Title 14, California Code of Regulations (CCR)), although it is possible that Humboldt martens could be inadvertently taken by trappers pursuing other fur bearers or nongame mammals that may be legally harvested for recreation, commerce in fur, or depreda- tion (CDFW Status Review 2018). Trapping in Califor- nia is highly regulated, and trappers must pass a Depart- ment examination demonstrating their skills and knowledge of laws and regulations prior to obtaining a license (Fish & G. Code § 4005).

Additionally, only live−traps may be used to take furbearers or nongame mammals for recreation or commerce in fur, and trap- pers are required to check traps daily and release non− target animals (Id. §§ 3003.1, 4004, and 4152 and § 465.5, Title 14, CCR). With the passage of Proposi- tion 4 in 1998, body−gripping traps (including snares and leg−hold traps) were banned in California for com- merce in fur and recreational trapping (Id. § 3003.1).

Trapping records indicate that there were no licensed fur trappers operating in Del Norte County from 2010 to 2016, and less than two trappers operating annually in Humboldt County in the same period, suggesting a very low probability of Humboldt marten bycatch (Califor- nia Automated License Data System 2018). However, some body−gripping traps may be used by licensed trappers for purposes unrelated to recreation or com- merce in fur, including protection of property or by gov- ernment employees, or their authorized agents, while acting in their official capacities (Id. Fish & G.

Code § 3003.1 and § 465.5, Title 14, CCR). Trapping of Humboldt martens remains legal in neighboring Oregon where trappers are required to ob- tain a trapping license and take an educational course (Hiller 2011). In recent years only four to eight trappers per year reported pursuing martens in Oregon (Hiller 2011). Oregon trapping records are organized by county, making it difficult to determine if reported trapped martens were coastal Humboldt martens or in- terior (Martes caurina caurina).

Review of trapping records from 2007 to 2016 indicates that as many as nine Humboldt martens may have been trapped in Ore- gon (CDFW Status Review 2018). Linnell et al. (2017) modeled Humboldt marten population viability in a coastal shore pine population and determined that the annual removal of two to three individuals from the population from human causes, such as trapping and road kills, would greatly increase the likelihood of ex- tirpation within a 30−year period.

Trapping pressure on Humboldt martens was intense during the late 1800s and early 1900s, and very likely resulted in significant declines in population size as well as a dramatic reduction in range (CDFW Status Re- view 2018). There have been no studies on the popula- tion level effects of Humboldt marten trapping, but the loss of even a few adult martens, especially when com- bined with other mortality sources, could reduce the likelihood of long−term population viability (USFWS 2015).

However, it is unlikely that trapping continues to threaten Humboldt martens in California due to the ban on trapping martens, the small number of active fur trappers, restrictions on the types of traps that may be used for other species, as well as requirements that li- censed trappers check traps daily and release non− target animals (CDFW Status Review 2018). Despite the past impact that trapping had on the species, due to changes in trapping laws and practices, overexploita-

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 155 tion no longer threatens the species in California (CDFW Status Review 2018). Predation Predation is a major cause of Humboldt marten mor- tality in California populations (CDFW Status Review 2018). Predation can significantly limit marten popula- tions in the wild (Hodgman et al. 1997, Bull and Heater 2001, McCann et al. 2010, Slauson et al 2017).

Known or expected predators of Humboldt martens include bobcats, gray foxes, coyotes, mountain lions (Puma concolor), great horned owls, goshawks (Accipiter gen- tilis), and Pacific fishers (Buskirk and Ruggiero 1994, Bull and Heater 2001, Slauson et al. 2009b, Woodford et al. 2013). Moriarty et al. (2016) detected the follow- ing potential predators at camera traps within 5 kilome- ters (3.1 miles) of known Humboldt marten detections: black bear (Ursus americana), bobcat, gray fox, do- mestic dog (Canis familiaris), domestic cat (Felis catus), coyote, and mountain lion.

Gray foxes were the most frequently observed species with detections near 29 percent of the known marten stations (CDFW Status Review 2018). Bobcats, black bears, and domestic dogs were detected near 26 percent, 23 percent, and 11 per- cent of the known marten stations, respectively (CDFW Status Review 2018). Detections of coyotes, domestic cats, and mountain lion were less frequent, ranging from two to four percent (CDFW Status Review 2018).

Bull and Heater (2001) documented 22 Pacific marten mortalities in their northeastern Oregon radio telemetry study; of these, 18 were attributed to preda- tion, by bobcats (44 percent), raptors (22 percent), coy- otes (11 percent), and other martens 1 (22 percent). The martens killed by predators accounted for 51 percent of the collared population over their four−year study (Bull and Heater 2001). In Wilk and Raphael’s (in press) study of Pacific martens in the Oregon Cascades, 35 of 47 marten mortalities were attributed to predation (74 percent, mostly from coyotes and bobcats).

In a Hum- boldt marten dispersal study in California (Slauson et al. 2014), nine martens (39 percent of collared martens) were killed by predation over the course of less than one year, and all nine of the predation events were by bobcats. An inverse relationship between bobcat occu- pancy and marten occupancy almost certainly exists as well as a direct relationship between bobcat occupancy and marten predation rates (CDFW Status Review 2018). Predator — V egetative Community Interactions Coastal forest ecosystems are complex, with tree, shrub, and herbaceous plant layers creating multiple structural layers.

Historically, dense continuous shrub understories were common in mature forests in the red- wood region (Morgan 1953, Allgood 1996, Slauson and Zielinski 2007). These shrub understories have been drastically reduced in many areas and modified through a century of logging and related forest management such as burning, mechanical clearing, road building, and planting dense stands of trees which compete for sunlight with shrubs and herbs (Slauson and Zielinski 2007).

The time period over which shrub layer extent, density, and species composition drastically changed corresponded with observed reductions in Humboldt marten distribution and the observed expansion of gen- eralist mesocarnivore (mid−sized carnivores) distribu- tions in the redwood region (Slauson and Zielinski 2007). Dense shrub layers may play an important role in ex- cluding marten predators. Most North American martens occupy areas where deep snow accumulates, which effectively excludes larger carnivores with high- er body mass to foot surface area ratios.

It rarely snows in the coastal forests occupied by Humboldt martens, but it is thought that extensive, extremely dense shrub layers effectively exclude larger bodied carnivores and provide a niche for Humboldt martens to exploit (Slau- son et al. 2010). Humboldt martens, with the smallest body size of North American marten subspecies (Hag- meier 1961), are adapted to the dense foliage and stems found near ground level in coastal forest ecosystems, al- lowing them to move quickly through the dense cover and successfully capture prey.

Humboldt martens appear to require dense shrub stand patches of >50−100 hectares (124−247 acres) (Slauson et al. 2007). Where shrub layers have been re- moved or reduced, fishers and gray foxes — both poten- tial marten predators, have expanded their historic ranges into the previously unoccupied redwood region (Slauson and Zielinski 2007). Conversely, in the re- maining old tree conifer stands with intact dense shrub layers that Humboldt martens select as preferred habi- tat, fishers and gray foxes are rarely detected (Slauson 2003, Slauson and Zielinski 2007).

Humboldt martens in northwestern California showed the strongest prefer- ence for stands with >80 percent shrub cover, and avoided stands with <60 percent shrub cover, while fishers and foxes avoided stands with >80 percent shrub cover and used stands with <60 percent shrub cover in proportion to their availability (Slauson 2003); howev- er, in the shore pine coastal dune habitat of central Ore- gon Eriksson et al. (in review) found Humboldt martens and gray foxes coexisting in the same habitat. 1 The four marten deaths attributed to other martens were all males, including two juveniles.

The carcasses were not eaten, but showed trauma suggestive of fighting. The authors surmised resi- dent male martens engaged in territorial defense were responsible for these mortalities.

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 156 The high predation rates noted in the Pacific marten and Humboldt marten studies above occurred in areas that included intensively managed forests. Raphael (2004 in Slauson et al. 2017) described his central Ore- gon Pacific marten study as a “high−harvest” area.

Bull and Heater’s (2001) 400 kilometers squared (154 miles squared) northeastern Oregon Pacific marten study area included a relatively small area (53 kilometers squared) (20 miles squared) of uncut forest surrounded by an area “extensively harvested for timber (approximately 80 percent) and fragmented by partial cuts, regeneration cuts, and roads.” More than 90 percent of the Slauson et al.

(2014) Humboldt marten dispersal study area had been previously harvested. Managed forests with open overstories, less dense shrub layers, and high road den- sity appear to favor larger−bodied generalist predators such a bobcats, gray foxes, and fishers, which may prey on or kill Humboldt martens (Slauson and Zielinski 2007, Slauson et al. 2010). Fragmentation of dense shrub stands by roads also appears to confer a competi- tive advantage to generalist carnivores like fishers, bobcats, and gray foxes, which compete with and prey upon martens.

Slauson et al. (2010) found that 80 per- cent of camera detections of generalist carnivores such as fisher, gray fox, and bobcats were on roads, while 80 percent of marten detections came from off−road areas. Because roads favor generalist predators, crossing roads to move between fragmented patches of habitat means martens are much more likely to encounter a predator than they would be if they were able to remain in dense shrub habitat (Slauson et al. 2010).

A landscape−scale habitat shift has occurred within the Humboldt marten’s geographic range since the ad- vent of industrial logging in the 20th century; from large, contiguous old forest stands with extensive dense shrub layers to a more patchy landscape of younger stands with degraded shrub layers divided by road sys- tems.

It is thought that small−bodied martens have a competitive advantage over the larger−bodied carni- vores when foraging and moving through dense shrub stands (Slauson and Zielinski 2007), so this shift in habitat can disadvantage marten while simultaneously favoring larger−bodied generalist carnivores such as bobcats, fishers, and gray foxes. These changes, along with the increased density of roads in the area, appear to have allowed generalist predators to expand their distri- butions into areas they did not traditionally occupy and prey upon martens at higher rates than historically oc- curred.

Although it is unknown whether predation alone threatens the existence of Humboldt martens in California, adult survival rates are known to be the most influential parameters in marten population growth models (Slauson et al. 2017, Linnell et al. 2018). Preda- tion rates therefore potentially have a substantial influ- ence on Humboldt marten population trends.

While predation is natural in wildlife communities, predation rates by larger predators appear to be elevated in landscapes managed for timber production due to the removal of large tree and shrub layer cover and the asso- ciation between the primary prey of larger predators and early seral forest habitat (CDFW Status Review 2018). The degree to which predation by larger preda- tors limits Humboldt marten populations on or adjacent to managed landscapes and what management actions may effectively reduce this mortality factor in these ar- eas warrants further research (CDFW Status Review 2018).

In the interim, observations suggest that ongoing timber harvest and occasional wildland fires which cre- ate early seral forest conditions in or adjacent to extant populations or areas identified as important for popula- tion re−establishment and connectivity will continue to elevate predation risk, potentially lead to declining pop- ulation trajectories, and prevent recovery of the Califor- nia Humboldt marten population (CDFW Status Re- view 2018). Therefore, the continued existence of the Humboldt marten in the State of California is in serious danger or threatened by predation.

Competition No data or studies were identified that assess the im- pacts of competition between Humboldt martens and other species, and the USFWS Humboldt marten species report (2015) does not identify competition as a significant stressor on Humboldt martens. Additionally, species with very specific habitat associa- tions, such as Humboldt marten, would be expected have a competitive advantage within their preferred habitat over habitat generalist species in the same area (Ricklefs 1990, Zabala et al. 2009).

Further, carnivore species typically select prey species of a certain size as a function of the predator’s own mass, effectively limit- ing competition with smaller and larger carnivores in the same community (Sinclair et al. 2003, Owen−Smith and Mills 2008). However, Peterson et al. (in review) found that increased diversity in the predator communi- ty appears to restrict the breadth of diet diversity in Pa- cific martens, suggesting that competition for food re- sources does influence marten ecology.

In coastal Ore- gon, Moriarty et al. (2016) detected the following po- tential competitor predators at camera traps within 5 kilometers (3.1 miles) of historical marten detections (reported as percent of camera trap sample units with detections): spotted skunk (Spilogale gracilis) at 41 percent of stations, opossum (Didelphis viriginiana) at 25 percent of stations, and short−tailed weasel at 8 per- cent of stations. Of these, only the spotted skunk is simi- lar in size to Humboldt martens (Maser et al. 1981), and it is a habitat generalist.

Eriksson et al. (in review) theo- rized that gray foxes, raccoons, and western spotted skunks would be the most likely dietary competitors

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 157 with Humboldt martens in Oregon shore pine habitats but found gray foxes and raccoons were common in stands occupied by martens which suggests competi- tion for food resources in shore pine habitat does not limit the distribution of martens. There is no indication in the available information to indicate that competition poses a substantial threat to Humboldt marten populations in California at this time. However, there is substantial overlap between the habi- tat preferences and prey species of Humboldt martens (Wiens et al. 2014).

There is significant overlap in the prey species of Humboldt martens and barred owls (Strix varia); in- cluding Douglas’ squirrels, flying squirrels, voles, deer mice, and songbirds (Wiens et al. 2014). The dietary overlap and shared habitat affinities suggest the two species may be resource competitors (Holm et al. 2016). The range of barred owls in North America has radically expanded in the last several decades; the species first being detected in northwestern California coastal forests in the early 1980s (Dark et al. 1998).

If barred owl populations continue to increase in northern California, prey species used by Humboldt martens may decline, potentially decreasing the marten carrying capacity (maximum marten population size the avail- able habitat can sustain) of the available habitat and changing the food−web dynamics of the coastal forest ecosystem (Holm et al. 2016).

Disease In its Humboldt marten species report (2015), the UFSWS noted: “The outbreak of a lethal pathogen within one of the three coastal marten populations could result in a rapid reduction in population size and distri- bution, likely resulting in a reduced probability of pop- ulation persistence, given the small size of these popu- lations.” North American martens are known to be sus- ceptible to a variety of diseases, including: rabies, plague, distemper, toxoplasmosis, leptospirosis, trichi- nosis, sarcoptic mange, canine adenovirus, parvovirus, herpes virus, West Nile virus, and Aleutian disease (Strickland et al. 1982, Zielinski 1984, Williams et al. 1988, Banci 1989, Brown et al. 2008, Green et al. 2008).

Although Strickland et al. (1982) found that American martens in their central Ontario study tested positive for toxoplasmosis, Aleutian disease (a carnivore par- vovirus), and leptospirosis, none of the diseases was considered to be a significant mortality factor for martens. Similarly, although Zielinski (1984) discov- ered antibodies to plague (Yersinia pestis) in four of 13 Sierra martens in the Sierra Nevada, he noted martens only appear to show transient clinical signs of the disease.

Gray foxes within the current range of Humboldt martens in California are known to have been exposed to canine distemper, parvovirus, toxoplasmosis, West Nile virus, and rabies, all of which are transmittable to martens (Brown et al. 2008, Gabriel et al. 2012). In their Hoopa Valley Reservation Study, Brown et al. (2008) found that dead fishers within the range of Humboldt marten had been exposed to canine parvovirus and ca- nine distemper which is known to cause high rates of mortality in mustelids (Deem et al. 2000).

Wengert and Gabriel (2017 unpublished data) tested 19 whole blood samples from coastal Oregon Humboldt martens for the presence of antibodies to canine distemper virus, canine parvovirus, and Toxoplasma gondii protozoan para- sites. Detection of antibodies to a specific pathogen in a blood sample indicates the animal was exposed to that pathogen at some time in the past. Antibodies to canine distemper virus were not detected in any sample, five samples (26 percent) had antibodies to parvovirus, and 14 (74 percent) had antibodies to toxoplasma.

The ab- sence of canine distemper virus could be explained by the small sample size examined; indicate infrequent in- teractions between martens and infected carnivores (e.g. gray foxes, skunks, raccoons) in the community; or suggest that infected martens generally do not sur- vive canine distemper virus infection (CDFW Status Review 2018). Because several potentially lethal diseases are known from the environment, a disease outbreak in one or both of the remaining Humboldt marten population areas in California should be considered a potential threat to the species (CDFW Status Review 2018).

Although it is not known if this threat alone imperils the persistence of the species in California, when combined with the serious threats of small, isolated populations, habitat loss from wildland fire, cannabis cultivation and timber manage- ment, and other threats, the possibility of a catastrophic disease outbreak further reduces the certainty that the Humboldt marten population will persist into the fore- seeable future (CDFW Status Review 2018).

Other Natural Events or Human−Related Activities Small Populations Small, isolated populations are inherently vulnerable to extinction due to loss of genetic variability; inbreed- ing depression and genetic drift; reduced genetic capac- ity to respond to changes in the environment; as well as through demographic stochasticity (changes in age and sex ratios resulting in less than optimal breeding oppor- tunities) due to random variation in birth and death rates (Primack 1993, Reed and Frankham 2003).

In studied wildlife populations, genetic diversity is strongly corre- lated with population fitness (increased survival and re- production rates) and decreased extinction risk (Hedrick and Kalinowski 2000, Reed and Frankham 2003). The smaller the population size, the more likely other threats will drive it to extinction (Primack 2010).

CALIFORNIA REGULATORY NOTICE REGISTER 2019, VOLUME NO. 4-Z 158 The only recent estimate of the Humboldt marten population was that less than 100 individuals exist in California (Slauson et al. 2009b). Since that time an ad- ditional small population has been discovered and the current estimate is that there are less than 80 breeding− age females in the state, far below the population size experts believe to be required to ensure long−term via- bility of a species (CDFW Status Review 2018; Traill et al. 2007, Traill et al. 2010, Flather et al. 2011).

The loss of genetic diversity inherent to small, isolated popula- tions can be expected to increase their risk of extinction because small and inbred populations have reduced ability to adapt with changing environments due to di- minished pools of potentially adaptive heritable pheno- types (Frankham 2005). Populations of at least several hundred reproductive individuals are believed to be re- quired to ensure the long−term viability of vertebrate species, with several thousand individuals being the goal (Primack 1993).

However, observations of wild populations indicate that it is possible for small popula- tions to persist, at least in the short term, in the face of genetic challenges, but these observations do not in- form the probability or durability of recovery (Harding et al. 2016). In wild populations, reproductive output and survival vary amongst individuals and from year to year. In large populations this variance averages out, but in small populations this variation, termed demographic stochasticity, can cause the population size to fluctuate randomly up or down (Primack 1993).

The smaller the population size the more pronounced the effect. Once a population size drops, its next generation is even more susceptible to further stochasticity and random inequal- ities in the sex ratio resulting in fewer mating opportu- nities and a declining birth rate (Primack 1993). Due to their small population size, Humboldt martens may be vulnerable to these effects (CDFW Status Review 2018). Linnell et al. (2018) mo

Document details

Collection	California Z Register
Citation	Cal. Reg. Notice Reg. 2019, No. 4
Type	gazette
Language	en
Format	pdf
Source	CA_ZREG
Identifier	4d243dc30e3286d90cab57899b0d608e88ca8f0d

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