BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 1299
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          Date of Hearing:   April 5, 2011

                                 Jared Huffman, Chair
                    AB 1299 (Huffman) - As Amended:  March 23, 2011
          SUBJECT  :   Marine Fisheries:  Forage Species

           SUMMARY  :   Enacts the Forage Species Conservation and Management 
          Act of 2011.  Specifically,  this bill  :

          1)States that it is the policy of the state to ensure the 
            conservation, sustainable use, and where feasible restoration 
            of California's forage species populations, including their 
            habitats and water quality, for benefit of the citizens of the 
            state.  States the objective of this policy is to achieve 
            ecosystem-based management of forage species that recognizes 
            the ecological services of forage species and the dependence of 
            predator species on forage species.  States a further state 
            policy to promote higher value uses of forage species for human 

          2)Defines forage species for purposes of the Act as any fish or 
            invertebrate that contributes significantly to the diets of 
            fish, birds, mammals or turtles, or otherwise contributes 
            disproportionately to ecosystem function and resilience due to 
            its role as prey.

          3)Requires, commencing January 1, 2012, all management decisions 
            and regulations promulgated by the Department of Fish and Game 
            (DFG), including Fishery Management Plans (FMPs) and amendments 
            to FMPs that significantly affect forage species to be 
            consistent with the state policy on forage species articulated 
            in this bill. Directs the Fish and Game Commission (FGC) in 
            implementing this requirement to review best readily available 
            scientific information to identify specified elements relating 
            to ecosystem management.

          4)Requires state representatives on the Pacific Fisheries 
            Management Council and other relevant intergovernmental 
            processes to advocate for policies and management consistent 
            with the policy established by this bill.

          5)Requires the FGC to restrict development of an emerging 
            fishery, or the significant expansion of an established fishery 
            where forage species are a significant component of the catch 


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            unless it finds that available scientific information 
            establishes the development of the fishery would not have a 
            significant negative impact on the population of the forage 
            species or the ecological services it provides.

          6)Defines "ecosystem-based management," "emerging fisheries" and 
            "established fisheries."

          7)States legislative findings and declarations regarding the 
            values of forage species to the marine ecosystem and human 
            health, the lack of baseline data for many forage species, and 
            the multitude of risks facing forage species, including ocean 
            acidification, pollution, fishing pressure, climate change, and 
            demand for feeds in the agriculture and aquaculture industries. 
             Further declares that the DFG and the Ocean Protection Council 
            (OPC) are encouraged to work together collaboratively to 
            achieve the policy objectives of this bill, consistent with the 
            DFG's and OPC's existing duties and responsibilities under the 
            Marine Life Management Act (MLMA) and the Ocean Protection Act.

           EXISTING LAW  :

          1)Declares it is the policy of the state to encourage the 
            preservation, conservation, and maintenance of wildlife 
            resources in order to maintain sufficient populations of all 
            species and necessary habitat, to provide for beneficial use 
            and enjoyment of wildlife by the citizens of the state, to 
            perpetuate wildlife for their intrinsic and ecological values, 
            to maintain recreational uses, and to provide for economic 
            contributions to the citizens of the state.

          2)Under the MLMA, requires that marine living resources be 
            managed sustainably, through adaptive management, on the basis 
            of best available science and other information.  Requires that 
            FMPs be prepared for all regulated fisheries, and establishes a 
            process, including public hearings, for review and adoption of 
            FMPs by the FGC.  Requires that each FMP include available 
            information on species population, habitat, ecosystem role, 
            economic and social factors.  Also requires adoption of a 
            master plan setting priorities for preparation of FMPs.

          3)Gives management authority over the market squid fishery to the 
            FGC and requires FGC to manage the fishery under the guidelines 
            of the MLMA.  Requires FGC to adopt a market squid FMP.  A 
            Market Squid FMP (MSFMP) was adopted by FGC and updated in 


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          4)Requires that Pacific mackerel and sardines be managed in 
            conformance with federal fishery regulations.  Places certain 
            geographic and catch limit restrictions on the taking of 

          5)Prohibits commercial fishing for krill in California waters.

          6)Under federal law known as the Magnuson-Stevens Fishery 
            Management and Conservation Act, regulates management of forage 
            species under the jurisdiction of the National Marine Fisheries 
            Service.  Some forage species, specifically pacific mackerel, 
            pacific sardines, jack mackerel and northern anchovies, are 
            regulated under the Coastal Pelagic Species FMP. 

          7)Creates the OPC and directs the OPC, among other things, to 
            support state agencies' use and sharing of scientific 
            information, to assess the needs of state agencies for 
            information relevant to ecosystem-based management, to work to 
            increase baseline scientific information needed for such 
            management, and to support agencies' collaborative management 
            and use of scientific information relative to ecosystem-based 

           FISCAL EFFECT  :   Unknown

           COMMENTS  :  The purpose of this bill is to provide additional 
          protection for the foundation of California's ocean food web and 
          important coastal fisheries by encouraging ecosystem-based 
          management of forage species.  Forage species, such as squid, 
          anchovies, herring, smelt, and sardines, are small schooling 
          pelagic fish and invertebrates that play a crucial role in marine 
          ecosystems and serve as a primary food source for many other 
          marine species.  In order to provide for healthy, productive and 
          resilient ocean ecosystems, the author and sponsors introduced 
          this bill to establish a state policy to protect forage species 
          and the role they play in the marine ecosystem.  Background 
          information provided by the author and sponsors notes that 
          scientists recognize the critical role forage species play in the 
          ecosystem as food for other fish, seabirds and mammals. Healthy 
          and abundant forage populations are critical to the 
          sustainability of the ecosystem and the recovery of other 
          fisheries dependent on forage species for food.   Forage species 
          transfer energy from the bottom of the food web to higher levels. 
           For example, krill and sardines eat microscopic plankton, and 
          krill and sardines are then eaten by salmon, seabirds and whales. 


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           The sponsors are concerned about the potential impacts of 
          over-fishing of forage species on marine mammals and seabirds, 
          and on the productivity of other commercial fisheries.  They also 
          note healthy abundance of forage species may be impacted 
          negatively by global warming and other changing ocean conditions. 
           The sponsors assert current fisheries management practices do 
          not explicitly consider the need to maintain sufficient 
          populations of forage fish for ecosystem needs.

          The ecosystem-based management policies set forth in this bill 
          are similar to existing state policies for ecosystem-based 
          management of marine fisheries generally, as reflected in the 
          MLMA and the Ocean Protection Act, but add additional specificity 
          with regard to management of forage species. 

          Forage species are generally understood to include the small fish 
          and invertebrates that form the base of the food web in the 
          marine ecosystem, and provide the primary food supply for other 
          larger fish, marine mammals, and birds.  Forage fish have been 
          used extensively in different parts of the world for human 
          consumption, and increasingly are being used to make fishmeal and 
          fish oil for industrial purposes, most notably for aquaculture.  
          Forage species are harvested as feed for aquaculture operations, 
          for use in fertilizers and pet food, and as an industrial animal 
          feedstock.  In 2007, forage fish landings accounted for 37% of 
          global landings of marine fish, with 90% of those landings 
          processed for fishmeal and fish oil and the remaining 10% used 
          directly for animal feed (Alder, et al, 2008).  According to the 
          California Association of Harbors and Port Captains, in 2009, 
          coastal pelagic forage species accounted for some 82% of volume 
          and 43% of ex-vessel value of all commercial seafood landings in 
          California. According to the CA Wetfish Association, much of 
          California's forage fish landings are used for human consumption. 
          The scientific literature notes that abundance of forage fish is 
          impacted by environmental factors and fluctuations in the oceans, 
          but that intense fishing pressure can also have an impact, 
          depleting the food base for seabirds and marine mammals.  With 
          regard to seabirds, competition from fishing operations is more 
          likely to affect species with restricted distributional ranges 
          than birds with large foraging ranges, though there is a growing 
          body of literature on seabirds being starved by depletion of 
          small pelagic fish by fishing in different parts of the world.  
          Understanding of the role of forage fish in supporting seabirds 
          and marine mammals is still limited, and ensuring sustainable 


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          catch levels in the face of environmental variability and growing 
          industry demand remains a challenge.  The sensitivity of forage 
          fish to changing oceanographic conditions, and increasing concern 
          over forage fish sustainability, including the impacts of fishing 
          on marine ecosystems, has led some fishery scientists to call for 
          a precautionary ecosystem-based approach to management.
          Some forage species locally have experienced declines in past 
          years.  For example, the San Francisco Bay Herring fishery 
          collapsed in the 1990s due at least in part to over fishing.  A 
          peer review of DFG's commercial herring fishery management in 
          2003 found that the San Francisco Bay Herring population was at a 
          level at or near the lowest abundance observed since the early 
          1970s, and that the process for setting quotas had led to 
          overfishing.  Starting in the 2003-04 season DFG changed its 
          survey methods.  Fishing rates were curtailed and the stock now 
          appears to be recovering.  According to information on DFG's 
          website, Pacific herring is one of the few fisheries in 
          California that undergoes an annual population assessment.  Like 
          other short-lived pelagic species, abundance fluctuates widely 
          making annual population assessments necessary for effective 
          management.  DFG's environmental review for the 2010-11 season 
          recommends FGC set the quota for take at between 0-10% of the 
          most current biomass estimate for the San Francisco Bay.  DFG's 
          website also indicates it has begun preparation of a Pacific 
          herring FMP.  

          According to two recent studies, Pacific sardine populations have 
          declined 70% in the last decade (Hill et al, 2010).  Sardines are 
          managed under the federal Coastal Pelagic Species FMP, and 
          harvests are set at 11% of biomass estimate.  Both California and 
          federal law ban the harvest of krill in recognition of the high 
          variability in krill populations, their importance in converting 
          microscopic phytoplankton into a food source for numerous other 
          species, and their importance as a principal food source for 
          other fish, seabirds and marine mammals.

          One of the more significant established forage fisheries in 
          California is the commercial market squid fishery.  Current law, 
          enacted by SB 209 (Sher) of 2001, notes the market squid fishery 
          was the state's largest fishery by volume, generating millions of 
          dollars of income to the state annually.  The statute recognizes 
          the importance of market squid as a commercial fishery, to 
          recreational fisheries for bait, and as forage for other 
          commercial and recreational fish, marine mammals and birds.  The 
          law acknowledges lack of research and annual at-sea surveys, 


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          combined with increased demand, could result in overfishing and 
          financial harm to the fishing industry.  The law called for 
          adoption of an FMP to provide for sustainable harvest, and to 
          sustain the squid population and the marine life that depends on 
          it.  The MSFMP adopted by FGC sets a goal to manage the market 
          squid resource to ensure long term resource conservation and 
          sustainability, and to develop a framework for management 
          responsive to environmental and social changes.  The seasonal 
          catch limit was set at 118,000 tons, based on recent average 
          catches.  Some equipment restrictions apply, and a restricted 
          access program was established.  Seasonal closures are also in 
          effect to protect seabirds.  Market squid are also a monitored 
          species under the federal Coastal Pelagic Species FMP.  The MSFMP 
          acknowledges there are gaps in the information needed to 
          sustainably manage this species.  The plan notes there have been 
          few independent studies on market squid, and that "no defensible 
          estimates of abundance exist for market squid."  The plan further 
          notes DFG will need more resources than are currently available 
          to begin the research needed to address the information gaps, and 
          acknowledges the fishery is not currently being managed on an 
          ecosystem basis, but that the recommendations in the plan could 
          help bring DFG closer to an ecosystem-based approach.

          A report commissioned by the OPC and published last year entitled 
          "MLMA lessons learned," found that despite some early progress 
          the MLMA has remained largely unimplemented, and has failed to 
          meet its intent to conserve, restore, and sustainably manage 
          California's marine living resources.  The report found that FMPs 
          adopted under the Act lacked a framework to implement 
          ecosystem-based management, and that despite the intent of the 
          MLMA to move toward ecosystem-based management, none of the 
          state's existing FMPs stated what ecosystem-based management 
          means in the context of the managed species, making it unclear 
          whether the fisheries could actually be considered sustainable.   
          It is worth noting that the report also acknowledged that a 
          primary factor in the failure of the MLMA has been the state's 
          failure to provide sufficient resources for implementation, 
          including funding for much needed scientific research, monitoring 
          and data collection.

          At the federal level, fishery management in the California 
          Current Region is primarily based on single species stock 
          assessments made using stock synthesis models.  A California 
          Current Ecosystem FMP is currently under development but the 
          anticipated date of completion is unknown.   A number of 
          scientific groups are currently researching ecosystem-based 


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          management of forage species.  For example, the Pew Environment 
          Group is working with fisheries scientists and marine ecologists 
          on a multi-year project to develop a set of standards for forage 
          fisheries management, with the aim of managing these species in 
          ways that preserve the structure and functioning of the marine 
          food web.

           Support Arguments  :  Supporters of this bill emphasize the 
          critical role of forage species in maintaining the health of the 
          entire marine ecosystem, the importance of forage species to 
          recovery of economically important commercial and recreational 
          fisheries such as salmon and halibut, and the nutritional values 
          of forage fish for human consumption.   Supporters note that 
          insufficient food supply in the oceans has been linked to 
          declines in Sacramento River fall Chinook salmon, major bird 
          reproductive failures and population declines, and marine mammal 
          mortality events over the last decade.  They emphasize the need 
          for a state policy specifically recognizing the importance of 
          sustainable ecosystem-based management of forage species.  
          Supporters also note that this bill is prospective and would not 
          impact or restrict existing established fisheries such as the 
          market squid fishery, unless those fisheries seek to 
          significantly expand and the FGC determines that there is a lack 
          of sufficient scientific information to determine that such 
          expansion would not negatively impact forage populations and the 
          marine ecosystem.  Supporters further note the while forage 
          specie populations naturally fluctuate based on oceanic 
          conditions, fishing pressure can exacerbate natural declines and 
          diminish the resilience of forage species to changing conditions. 
           Supporters acknowledge existing laws such as the MLMA, while 
          requiring consideration of ecosystem impacts generally, do not 
          specifically address forage species, and do not define forage 
          species or ecosystem-based management. 

           Opposition Arguments  :  Opponents of this bill generally assert 
          this bill is unnecessary and duplicates or overrides existing 
          fishery management requirements, fails to acknowledge and 
          coordinate with existing FMPs and other state and federal 
          regulations, creates new unfunded mandates on DFG, and requires a 
          scientific consensus and proof of a negative before a fishery can 
          be expanded, which is an impossible standard to meet.  Opponents 
          further claim this bill will prohibit expansion of fishery 
          harvests without any proof that such expansion would cause harm, 
          assert there is no evidence forage species are being over fished, 
          and fear this bill would require the fishing industry to fund 
          expensive research and studies.   They assert this bill will put 


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          fishermen and processors out of work and eliminate jobs.   
          Opponents also argue forage fish should be managed at the federal 
          level for the California Current Ecosystem as a whole rather than 
          by the state, and point to the proposed federal California 
          Current Ecosystem FMP which has been under development for 
          several years.  Some opponents also objected to the definition of 
          "precautionary principle" contained in the previous version of 
          this bill.  It should be noted that some of the points raised by 
          the opposition appear to have been addressed in the March 23rd 
          amendments, such as, removal of the definition of "precautionary 
          principle," clarification of the definition of "established 
          fishery" and other terms, the inclusion of references to existing 
          FMPs and other amendments.   These amendments have not, however, 
          removed the opposition.

           Issues and Suggested Amendments  :

           1)Definition of Forage Species  :  The stated intent of this bill 
            is to establish a state policy of ecosystem-based management of 
            forage species that form the foundation or base of the oceanic 
            food web.  The definition of "forage species" in this bill, 
            however, may be overly broad, as virtually every fish in the 
            ocean is a food source for other species.  For instance, salmon 
            contribute significantly to the diets of sea lions, and could 
            thus be considered a forage species under the definition in 
            this bill which is not intended by the author.  The committee 
            and author may therefore wish to consider an amendment refining 
            the definition of forage species to more narrowly include only 
            those species that form the base of the food web, and to name 
            the specific species included in the definition, such as 
            sardines, anchovies, herring, small squid, American shad, 
            Pacific saury, sand lance, smelts, lantern fish, grunion, etc.

          2)Adoption of Regulations  :  This bill on page 4, line 29, refers 
            to regulations adopted by DFG.  Generally, it is the FGC rather 
            than the department that adopts regulations.  It is recommended 
            that this bill be amended to insert "or the Fish and Game 
            Commission" after "department" on line 29.

           3)Definition of "Significant Expansion  ":  This bill requires the 
            FGC to restrict the development of an emerging fishery or the 
            significant expansion of an established fishery unless it makes 
            certain findings.  "Significant expansion" is not defined.  The 
            committee and author may wish to consider an amendment defining 
            "significant expansion" or clarifying that what constitutes a 
            significant expansion shall be determined by the FGC based on 


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            the science.

           4)Standard Required for Development/Expansion  :  The opposition 
            makes the point that this bill would require the FGC to make a 
            finding that available scientific information "establishes" 
            that the development or expansion of a fishery "would not have" 
            a significant negative impact on the population of a forage 
            species or ecological services rendered by the forage species 
            before the fishery could be developed or expanded, and that 
            this standard essentially requires a scientific consensus and 
            proof of a negative, which is very difficult if not impossible 
            to do.  To address this concern and in recognition of the fact 
            that scientific certainty is rarely achieved, the committee and 
            author may wish to consider an amendment clarifying the 
            standard required by amending page 5, lines 25 through 29 to 
            read as follows:

              "scientific information  establishes   indicates  that the 
              development or expansion of the fishery would  not have   be 
              unlikely to have  a significant negative impact on the 
              population of the forage species or the ecological services 
              rendered by the forage species in the larger ecosystem."



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           Oceana (sponsor)
          Audubon California
          Center for Oceanic Awareness, Research & Educ.
          Defenders of Wildlife
          Friends of the Earth
          Golden Gate Fishermen's Association
          Marine Conservation Biology Institute
          Monterey Fish Market
          Passionfish Restaurant
          Pacific Environment
          Point Reyes Bird Observatory
          Save Our Shores
          Sealife Conservation, Inc.
          The Humane Society
          The Otter Project
          The Sportfishing Conservancy
           Alliance of Communities for Sustainable Fisheries
          CA Assoc. of Harbor Masters & Port Captains
          California Fisheries and Seafood Institute
          California Marine Parks and Harbors Assoc., Inc.
          California Wetfish Producers Association
          California Yacht Brokers
          City of Monterey
          Marina Recreation Association
          Moss Landing Harbor District
          Southern California Trawlers Association
          State Fish Company, Inc.
          Sun Coast Calamari, Inc.


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           Analysis Prepared by  :    Diane Colborn / W., P. & W. / (916)