BILL ANALYSIS Ó
AB 1299
Page 1
Date of Hearing: April 5, 2011
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
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
consumption.
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
AB 1299
Page 2
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
2005.
AB 1299
Page 3
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
anchovies.
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
management.
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.
AB 1299
Page 4
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
AB 1299
Page 5
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,
AB 1299
Page 6
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
AB 1299
Page 7
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
AB 1299
Page 8
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
AB 1299
Page 9
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."
REGISTERED SUPPORT / OPPOSITION :
AB 1299
Page 10
Support
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
Opposition
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.
AB 1299
Page 11
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096