Ag Alert: Court ruling upends fish-stocking regulations

Tuesday, February 24, 2015 @ 11:02:00 AM

Courtesy of the California Farm Bureau Federation:

By Ching Lee

California aquaculture producers say they are pleased with a court decision that struck down proposed new regulations from the state Department of Fish and Wildlife on fish stocking activities in California's public and private waters.

The California Third District Court of Appeal ruled last week that three proposed measures the department sought to implement to its existing fish-stocking permitting process amounted to "underground regulations" in violation of state law.

Fish farmers say the fish-stocking regulations the state proposed were so extensive and costly that they threatened their ability to stay in business and could have blocked many stocking ponds and hatcheries from continuing to operate. With the ruling, those regulations are now stricken.

The court decision is not only a victory for those in the aquaculture business, said Tony Vaught, owner of Professional Aquaculture Services in Chico; it's a win for those who enjoy recreational fishing and all landowners who want to stock fish on their private property, including farmers and ranchers with stock ponds, irrigation ponds and frost protection ponds, he added.

"Because of this ruling, we're able to stock those ponds and keep them healthy, and they can be used for recreation," said Vaught, whose company has been stocking ponds for more than 35 years.

The California Association of Recreational Fishing, which represents recreational fishermen and businesses that serve them, filed the lawsuit against CDFW, saying the department created the new rules "in the dark"—without any request from the state Legislature and without seeking public review and comment, as mandated by the state Administrative Procedure Act.

"We're happy to hear that the court agreed with us and that the department has got to follow the rules when they decide to make new regulations," said Craig Elliott, president of CARF and a fish farmer who also operates several fishing lakes in Southern California.

Joshua Thompson, attorney for the Pacific Legal Foundation, which represented the association in the case, said part of the argument isn't that the department lacks the authority to regulate California waters, but that it developed the regulations "behind closed doors" without input from the public and those who would be affected by those regulations.

The department's new regulations were born out of a 2006 lawsuit by environmental groups against the state's own fish stocking activities. That suit led CDFW to complete an environmental impact report, released in 2010, that said the stocking of lakes and ponds with hatchery-bred fish puts indigenous fish and habitat at risk.

But rather than focusing on just the state's own hatcheries, the report determined that new regulations should be imposed on private stocking operations as well.

"Basically, (the department was) trying to use the environmental impact report as their justification for being able to implement these new regulations, and that's just not the way things are done," Elliott said.

Under those new rules, aquaculture farms that stock fish in lakes and ponds would have been required to have regular inspections and continuous monitoring for invasive species. Landowners who want to stock fish on their private property would have needed to obtain a permit—currently not required for some fish species stocked in self-contained lakes and ponds in 37 counties—and a health certificate from the farm conducting the stocking.

An economic analysis commissioned by CARF found that costs to complete biological surveys required by the new protocols could exceed $100,000 every one to five years.

The new rules received so much opposition from fish farmers, lake operators, fishing enthusiasts and businesses that rely on recreational fishing that the California Fish and Game Commission chose not to adopt them in late 2011, telling the department "to come back with something more appropriate."

Even though the commission rejected the regulations, Elliott said CARF decided to proceed with the lawsuit, which it filed in 2010, to ensure the department goes through the proper process in developing any new regulations.

A Sacramento Superior Court judge ruled in favor of the department in 2012, but the association appealed that decision.

Vaught said while the litigation continued, the department "backed way off" in trying to implement any new rules, as "they were waiting for the court decision to see what direction they were going to go." During this time, fish farmers have, "for the most part," been able to stock ponds as they had done for years, he said. But he noted that in areas where permits are needed, the approval process is now "taking longer," sometimes up to a year, and that has affected his business.

In light of the court decision, CDFW said in a statement that it "will work collaboratively with the aquaculture industry to ensure any future regulations proposed regarding each program will protect California's natural resources."

CDFW spokeswoman Jordan Traverso noted that since "regulations are already in place" for fish stocking, the department "will operate under those existing regulations."

Vaught said aquaculture operators are not stocking in sensitive areas that pose a threat to protected species, and the fish they stock are widespread in the state, "so it shouldn't be a problem to keep doing this."

(Ching Lee is an assistant editor of Ag Alert. She may be contacted at