BILL ANALYSIS Ó SENATE COMMITTEE ON NATURAL RESOURCES AND WATER Senator Fran Pavley, Chair 2015 - 2016 Regular Bill No: SB 1114 Hearing Date: April 12, 2016 ----------------------------------------------------------------- |Author: |Allen | | | ----------------------------------------------------------------- ----------------------------------------------------------------- |Version: |March 29, 2016 | ----------------------------------------------------------------- ----------------------------------------------------------------- |Urgency: |No |Fiscal: |Yes | ----------------------------------------------------------------- ----------------------------------------------------------------- |Consultant:|William Craven | | | | ----------------------------------------------------------------- Subject: Commercial fishing: swordfish BACKGROUND AND EXISTING LAW The Fish and Game Code, beginning at section 8561, contains the existing provisions of law regarding the drift gill net shark and swordfish fishery. Those provisions establish criteria for permits, transfers of permits, the information required for permits, size of nets and other gear restrictions, restricted areas for gill net fishing, as well as additional provisions. In addition, the State of California has fishery policies to protect endangered sea turtles and other marine life by prohibiting commercial swordfish shallow-set longline fishing within state waters and federal regulations currently prohibit commercial longlining for swordfish within 200 miles of the coast. The California Ocean Protection Council has supported the research and development of alternatives for catching swordfish, most notably deep-set buoy gear. The gear works by dropping weighted hooks as deep as 1,200 feet below the surface, where swordfish tend to stay during the daytime. When an indicator float drops below the surface, fishermen immediately pull in the line. According to the Department of Fish and Wildlife (department), the department issued 71 drift gill net permits and 42 harpoon permits in 2015. It considers 26 fishermen to be active drift SB 1114 (Allen) Page 2 of ? gill net fishers, and 5 harpoon fishers are also considered to be active. In 2015, the fleet landed approximately 132 metric tons of swordfish, shark and other marketable species, valued at just under $800,000. Of that, 72.5 metric tons were swordfish, with a value of $630,000. In comparison, the US imported nearly 11,000 metric tons of swordfish valued at nearly $90 million in 2015. There are provisions under federal law for what are called "federal exempted fishing permits." These allow activities that may otherwise be prohibited and in the case of California swordfish, these permits allow the use of modified drift gill net gear in the Pacific Leatherback Turtle Conservation Area. PROPOSED LAW This bill would do all of the following: 1. Findings and declarations include statements regarding the environmental damage caused by drift gill nets to non-target and often rare species such as whales, dolphins, sharks, pinnipeds, and sea turtles. They also contain data related to by-catch, and argue that California should set the standard for sustainable swordfish fishing globally. The findings also point to alternatives that have been developed that are selective and sustainable, most notably deep-set buoy gear. The findings set the stage for a phase out of drift gill nets and for a transition, with economic incentives, of the California swordfish fleet to the use of lower impact fishing gear. 2. The bill, as of March 31, 2017, repeals the existing section on transferring drift gill net swordfish permits and replaces it with a new section that establishes conditions for transfers that would become effective on the same date: The permittee permanently retires the permit by transferring the permit to an entity engaged in retiring permits, or the permittee exchanges the permit for deep set buoy gear permit. (Note: The entity engaged in retiring permits is likely a nonprofit.) 3. The bill sunsets the current fee for drift gill net permits ($330) and increases it to $1500. SB 1114 (Allen) Page 3 of ? 4. The department would be prohibited from issuing new drift gill net shark and swordfish permits after March 31, 2017. Permits for which the department has not been notified of any landings for two successive fishing seasons would be revoked. Permits that have been revoked or surrendered or exchanged would not be transferred or re-issued. Additionally, the bill defines "latent drift gear net permit" as one for which no swordfish or thresher shark landings were reported in at least 3 years between 2010 and 2015. 5. The bill defines an actively fished drift gill net permit as one under which swordfish or thresher shark landings were reported in at least 3 years between 2010 and 2015. It also establishes thresholds of risk and acceptable take and provides options to the department to assess the risk to protected marine wildlife based on available information. 6. The bill authorizes the department to adopt regulations for a deep-set buoy gear fishery for swordfish consistent with the terms of the bill and federal law. 7. It authorizes the department to issue deep-set buoy gear or similar gear to take swordfish pursuant to federal law when that gear is authorized pursuant to federal law. 8. The bill establishes a protocol and incentives for the issuance of the new permits, as follows: a) To an active drift gill net permit holder pursuant to Article 16 of the Fish and Game Code. b) To a person who has fished with deep set buoy gear under a federal exempted fishing permit since January 1, 2010. c) To a person who holds a valid swordfish permit pursuant to Section 8394. d) Two additional deep-set buoy gear permits may be issued to each actively fished drift gill who fished pursuant to a federal exempted fishing permit if that federal permit is surrendered within two years of a future federal authorization to use deep-set buy gear or similar gear. e) One additional deep-set buoy gear permit may be SB 1114 (Allen) Page 4 of ? issued to each actively fished drift gill net permit holder and each person who fished under a federal exempted fishing permit if the drift gill permit is surrendered within 4 years of the upcoming federal authorization to use deep set buoy gear or similar gear. f) One permit may be issued to a person who held a latent drift gill permit prior to January 1, 2017. g) No additional permits other than those mentioned in (b)-(f), above, may be granted until 5 years after deep set buoy hear or similar gear is authorized under federal law. The department would be able to issue additional permits to accommodate additional fishing effort and demonstrated demand if no more than a negligible risk to protected marine wildlife is shown. 1. The department is charged with the responsibility to create measures and incentives to avoid and minimize the incidence of derelict deep-set buoy gear left at sea which may include provisions for registration and labeling gear as well as incentives for the retrieval and retention of gear. 2. A new fee shall be established at or below a rate sufficient to cover the costs of the department and to transfer the new permits. 3. The Ocean Protection Council (OPC) is directed to provide funding for the innovation and adoption of sustainable commercial fishing methods in the swordfish fishery which may include assistance in purchasing deep-set buoy gear for persons with an exempted fishing permit as of January 1, 2016, issued by the National Marine Fisheries Service and for the first 10 persons who exchange their drift gill net permits for deep-set buoy gear. The OPC is also directed to develop marketing and propose business structures to support a high and stable price for swordfish landed pursuant to these new provisions. ARGUMENTS IN SUPPORT According to the author, California is the last state on the West Coast that still allows the use of drift gill nets in its swordfish fishery. California's drift gill nets kill or injure approximately 7 times more whales and dolphins than all other observed fisheries in California Oregon, Washington, and Alaska combined, and 13 times more than any other single observed fishery. SB 1114 (Allen) Page 5 of ? A coalition of marine environmental groups and other conservation groups considers the drift gill net fishery for swordfish "the most harmful fishing practice on the West Coast." It supports the aspects of the bill that reduces the number of drift gill nets and the incentives and transition to the more sustainable deep-set buoy gear. The coalition states that California is the last state on the West Coast that still uses drift gillnets in the swordfish fishery and that this gear type has been banned on the high seas, in other states, and in many countries worldwide because of the unavoidable by-catch. Sperm whales (endangered) and Pacific leatherback turtles (endangered) have been prominent victims of by-catch. Two-thirds of the catch in drift gill nets is said to be by-catch. The alternative gear of deep-set buoy gear has had successful trials in California achieved with partial funding from the Ocean Protection Council. The coalition considers this technology to be sustainable by which it means that 94 percent of the catch from this gear can be kept and sold at market. ARGUMENTS IN OPPOSITION Morro Bay Commercial Fisherman's Organization is in opposition because the phase out of drift gill nets is likely to occur through the regulatory process now underway by state and federal fisheries agencies. Because all swordfish fishing is outside of state waters, this group and most of the opposition believes that there is little or no role for California statute to regulate gear types. The Santa Barbara Chamber of Commerce believes the legislation will destroy a healthy and sustainable California fishery. It considers deep-set gear to be unproven technology and estimates the value of the fishery at $14 million (far exceeding the estimate from the department). SB 1114 (Allen) Page 6 of ? The California Fisheries and Seafood Institute believes that the deep-set buoy gear is experimental and unproven and inadequate to replace the income of the current participants in the fishery. Contrary to the supporters, it states that 90 % of the fish caught by nets in the West Coast swordfish fishery are landed and enjoyed by consumers or released alive. It says that only 3 sea turtle interactions have occurred in the last decade and all three were recorded as being released alive by federal observers. In California, it says there have been no sea turtle mortalities observed since 1999 compared to 42,000 turtles that were hunted and killed legally in 42 countries around the world in 2013 alone. COMMENTS 1. Assuming the bill moves forward, the author may want to consider amplifying that other sustainable gear types in addition to deep set gear are covered by the bill. The bill contains an occasional reference to such an option which could provide needed flexibility if in the future other sustainable gear types become technically feasible and commercially available. 2. The author may want to harmonize the two definitions of "latent drift gill net permit" which, while perhaps not inconsistent, are also not identical. 3. The provisions relating to the Ocean Protection Council are perhaps understandably vague at this first hearing pending discussions with the OPC. The provisions relating to the development of a business model for marketing sustainably harvested swordfish, in particular, could use further development. 4. Although not stated affirmatively in the bill, it is clear from the language that the bill does not affect the legality of existing drift gill net permits. Those fishermen would be able to hold those permits indefinitely but their transfer to others would be covered by this bill. 5. There is no provision for hardship cases or new entrants who would not have landed fish in 3 years, as set forth in the bill. 6. While it is contained in the language of the bill, it is clear the opposition has missed the provision on page 8, line 8, that the department would not issue permits for deep-set buoy gear until it is authorized by federal law. SB 1114 (Allen) Page 7 of ? Double-referral The Rules Committee referred this bill to both the Committee on Natural Resources and Water and to the Committee on Environmental Quality. Therefore, if this bill passes this committee, it will be referred to the Committee on Environmental Quality, which will consider the issues within their jurisdiction. SUPPORT Turtle Island Restoration Network (sponsor) American Cetacean Society SF Bay Chapter Azul BlueVoice.org California Coastal Protection Network California League of Conservation Voters Climate Parents Coastal Environmental Rights Foundation Defenders of Wildlife Environment California Ghost Fishing Hollywood Divers Kurmalliance Marine Animal Rescue Ocean Defenders Alliance Oceana Public Interest Coalition San Diego Coastkeeper Save the Sea Save the Turtles, Inc Sierra Club California Surfrider The Leatherback Trust The Otter Project WILDCOAST OPPOSITION Alliance of Communities for Sustainable Fisheries California Fisheries and Seafood Institute Morro Bay Commercial Fishermen's Association Santa Barbara Chamber One individual SB 1114 (Allen) Page 8 of ? -- END --