BILL ANALYSIS Ó
SENATE COMMITTEE ON ENVIRONMENTAL QUALITY
Senator Wieckowski, Chair
2015 - 2016 Regular
Bill No: SB 1363
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|Author: |Monning |
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|Version: |3/28/2016 |Hearing |4/20/2016 |
| | |Date: | |
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|Urgency: |No |Fiscal: |Yes |
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|Consultant:|Dan Brumbaugh |
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SUBJECT: Ocean Protection Council: Ocean Acidification and
Hypoxia Reduction Program
ANALYSIS:
Existing law:
1) Under federal law, pursuant to the Magnuson-Stevens Fishery
Conservation and Management Act (1976) and subsequent revisions
and reauthorizations in 1996 and 2007, designates eelgrass beds
as an Essential Fish Habitat (EFH) habitat area of particular
concern (HAPC) for various federally-managed fish species
within the Pacific Coast Groundfish Fishery Management Plan,
developed by the Pacific Fisheries Management Council in 2008.
EFH is defined as the waters and substrate necessary for fish
for spawning, breeding, feeding, or growth to maturity, and an
HAPC is a subset of EFH that is rare, particularly susceptible
to human-induced degradation, especially ecologically
important, and/or located in an environmentally stressed area.
HAPC designations are used to provide additional focus for
conservation efforts (16 USC §1855).
2) Considers vegetated shallows that support eelgrass as special
aquatic sites under the 404(b)(1) guidelines of the Clean Water
Act (40 CFR §230.43).
3) Under state law, pursuant to the McAteer-Petris Act (Government
Code §66600 et seq.) and the California Coastal Act (Public
Resources Code §30000 et seq.), mandates protection and
restoration of submerged marine habitats.
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4) Created the California State Coastal Conservancy in 1976 to
protect and improve natural lands and waterways, to help people
get to and enjoy the outdoors, and to sustain local economies
along California's coast. The Conservancy is a non-regulatory
agency that supports projects to protect coastal resources and
increase opportunities for the public to enjoy the coast.
(Chapter 1441, Statutes of 1976; PRC §31000 et seq.)
5) Establishes the California Ocean Protection Council (OPC) and
the California Ocean Protection Trust Fund (OPTF) through SB
1319 (Burton, Alpert, Chapter 719, Statutes of 2004) to
coordinate, streamline, and improve the effectiveness of the
state's oversight of its ocean resources; designate ocean and
marine ecosystems as a public trust; and promote ocean
protection policies based on sound science. The OPC
administers the OPTF to carry out its duties, and to make
grants or loans to public agencies, non-profits or private
entities for projects that protect and enhance ocean resources,
as specified, including the development of monitoring and
scientific data to improve state efforts to protect and
conserve ocean resources. (PRC §35600 et seq.)
6) Through Proposition 84, also known as the "Safe Drinking Water,
Water Quality and Supply, Flood Control, River and Coastal
Protection Bond Act of 2006" (Chapter 7, Statutes of 2006),
provides $90 million dollars over the course of 10 years to the
OPTF to fund priority OPC projects. (PRC §75060(g))
This bill:
1) Makes a series of findings and declarations regarding eelgrass
ecosystems, as specified.
2) Requires the OPC, in coordination with the State Coastal
Conservancy and to the extent that funds are available from
bonds or other sources, to establish and administer the Ocean
Acidification and Hypoxia Reduction Program (Program) for the
purposes of achieving the following goals:
a) Developing demonstration projects to evaluate the best
locations that are optimal for implementing carbon for
implementing carbon dioxide (CO2) removal strategies,
including the protection and restoration of eelgrass beds;
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b) Generating an inventory of locations where conservation
or restoration of aquatic habitats, including eelgrass, can
be successfully applied to mitigate ocean acidification and
hypoxia; and
c) Incorporating consideration of CO2 removal during the
habitat restoration planning process in order to fully
account for the benefits of long-term carbon storage of
habitat restoration in addition to the habitat value.
3) Directs the OPC, in advancing the Program to remove CO2 from
seawater to consider approaches that provide multiple
co-benefits, including, but not limited to, providing essential
fish and bird habitat, improving water quality, and mitigating
sea level rise.
Background
1) Emergence of general concern about ocean acidification. A
series of reports over the last two decades have documented
large-scale declines in the health of the state's ocean and
coastal ecosystems. These include the 1997 Resources Agency
report, California's Ocean Resources: An Agenda for the Future,
the 2003 Pew Oceans Commission report, America's Living Oceans:
Charting a Course for Sea Change, and the 2004 United States
Commission on Ocean Policy report, An Ocean Blueprint for the
21st Century. These earlier reports were wide-ranging,
synthetic, and influential in the state in that they led to the
creation of the OPC. Looking back, however, the limited
attention they devote to ocean acidification (OA) is striking
yet understandable, as the phenomenon was then relatively
poorly appreciated and studied. Ocean acidification is caused
by a series of chemical reactions that occur as the surface
waters of the ocean absorb a portion (about a third) of the
extra carbon dioxide (CO2) produced by human activities and
emitted into the atmosphere. These reactions result in seawater
that is more corrosive, with a lower pH ("acidification") and a
lower concentration of dissolved carbonate ions that many
marine organisms use to grow their shells and skeletons.
More recently, awareness of OA impacts has grown within the
marine science, resource use, and management communities, which
has resulted in the ramping up of more OA research and
discussion of its implications for resource users and
management. Growing practical experience with impacts from
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changing ocean chemistry includes oyster farms, some of which,
for example, have learned to avoid in-taking seawater during
periods when it is harmful to young shellfish. Others are now
chemically treating batches of seawater in their facilities to
make it more suited to the needs of shellfish, but such
treatments are currently only feasible at the scale of smaller,
closed-system operations.
The threats posed by increasing OA will be further compounded
by other dimensions of climate change, such as the
intensification and expansion of low dissolved oxygen - or
hypoxic - zones in the ocean. These regions form in part from
runoff that carries nutrients and organic carbon into the
ocean. When spread across large enough areas, low levels of
dissolved oxygen can result in "dead zones" where mass die-offs
of fish and shellfish occur. In the coming decades, the impacts
of OA and hypoxia (OAH), which are already being felt across
West Coast systems, are projected to grow rapidly in intensity
and extent.
2) Ocean acidification and California. In January 2016, the Senate
Natural Resources and Water Committee convened an Informational
Hearing where scientists discussed aspects of the emerging
science of OA. In April 2016, the multi-year, multi-state West
Coast Ocean Acidification and Hypoxia Science Panel (OAH Panel)
released an extensive report that summarizes current knowledge
of the science (which is still in its infancy), research
priorities, and recommendations for actions that can
nevertheless be taken by management now.
According to the report, because of oceanographic circulation
dynamics in the North Pacific, California's coastal ecosystems
are particularly exposed to impacts of OA. And as with other
mitigation and adaptation aspects of carbon emissions, when it
comes to addressing OA, there is a cost to management inaction.
This is because OA impacts, and the difficulties of addressing
them, will only get worse in the foreseeable future.
Although the changes to ocean carbonate chemistry that
California is experiencing are unavoidably linked to changes in
the concentration of atmospheric CO2 globally, there is a lag
of decades in the linkage between global atmospheric conditions
and our local coastal waters. This is because our upwelled
coastal waters originated as surface waters off of Japan 30-50
years prior. There at the surface, they absorbed CO2 from the
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atmosphere before sinking hundreds of feet below the surface as
they were transported across the North Pacific to the west
coast of North America. As the water was transported,
continuing biological respiration of organic particles released
more CO2, making the water naturally CO2 rich and lower in pH
and carbonate. This water then traveled down the west coast,
where, especially along certain parts of the coastline and
under certain seasonal wind conditions, it was upwelled and
spread across the continental shelf. Because of this transport
and enrichment process, the state of ocean chemistry off of
California's coast is 30-50 years behind the state of the
atmosphere. In other words, if rising atmospheric carbon
concentrations were to become instantaneously stabilized, we
would still be "locked into" increasing OA impacts for another
three or more decades.
Although research about possible impacts is still emerging,
there is evidence to suggest that more extreme ocean chemistry
will push ecosystems beyond certain biological thresholds, such
as pH levels and carbonate concentrations that small young
shelled organisms in the plankton and along shores need to grow
and survive.
3) Eelgrass ecology, conservation, and restoration. Eelgrass
refers to species of temperate seagrasses, which are a group of
flowering plants that grow submerged in marine, brackish, and
freshwaters. Two species, Zostera marina L. and Z. pacifica S.
Watson, are native to California, and a third, introduced
species, Z. japonica, is considered invasive and a threat to
tidelands where some commercial clam farms and recreational
clamming occur. Hereafter, "eelgrass" refers only to the native
species.
According to NOAA Fisheries "California Eelgrass Mitigation
Policy and Implementing Guidelines" (October 2014), the state
supports dynamic eelgrass habitats that range in extent from
less than 11,000 acres to possibly as much as 15,000 acres
statewide. This includes estimates for poorly documented beds
in smaller coastal systems as well as open coastal and insular
areas. While among the most productive of habitats, the overall
low statewide abundance makes eelgrass one of the rarest
habitats in California. Collectively, just five systems -
Humboldt Bay, San Francisco Bay, San Diego Bay, Mission Bay,
and Tomales Bay - support over 80% of the known eelgrass in the
state. The uneven distribution of eelgrass resources increases
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the risk to this habitat, and the narrow depth range within
which eelgrass can occur further places this habitat at risk in
the face of global climate change and sea level rise
predictions.
Due to recognition of cumulative threats to the extent and
quality of eelgrass beds, and their ecological importance as
foundational species that provide food and habitat structure to
many other species within sheltered bay and estuarine
communities, eelgrass is a species of conservation concern.
Therefore, there are many examples of where eelgrass beds have
been inventoried and mapped at fine geographic scales as parts
of environmental impact assessments and mitigation plans for
coastal developments. There are also many small-scale eelgrass
restoration efforts underway as part of local, state, federal,
and international projects, often in partnership with
non-profit organizations. Variable degrees of success have
resulted from these efforts in California and around the world.
Ecological research on seagrasses, including their responses to
changing ocean conditions, their ability to capture sediment
and sequester carbon, and their ability to modify local water
chemistry through photosynthesis and respiration, is still
growing, but the evidence to date suggests that some of these
ecological functions can vary substantially from place to
place, and over time. Further research is necessary to
determine the extent to which such complexity can be routinely
understood enough to be reasonably predictable.
Comments
1) Purpose of Bill.
According to the author, "by investing in the restoration of
eelgrass beds on California's coast, SB 1363 leverages the
cobenefits of ocean acidification mitigation, sea-level rise
mitigation, carbon sequestration, water quality benefits, and
providing essential fish habitat, while also supporting the
state's coastal economy."
2) Current OPC efforts and priorities. The OPC already has
existing authority to create an OAH Reduction Program, but
explicit statutory direction may increase the OPC's ability to
fund work in this area in the future. The OPC played a major
role in the development of the OAH Panel project, and the
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project goals mentioned in SB 1363 - demonstration research
projects, predictive spatial analyses, and more holistic
analysis and planning of restoration - are in line with OPC
interests in the areas of OA and hypoxia.
Larger-scale, proof-of-concept demonstration projects, for
example, could estimate the extent to which the potential
OAH-mitigating benefits of photosynthesis within eelgrass beds
are balanced by respiration across daily and seasonal cycles.
Related questions include how far, for a given amount of
eelgrass and in what environmental conditions, does the spatial
"footprint" of such effects extend? What are the range of
settings and locations where eelgrass protection and
restoration will be most successful and beneficial? Can such
measures be employed in concert with other management actions
(e.g., improvements in water quality) to maximize conservation
benefits?
3) Restoration challenges and expectations. Restoration of complex
ecosystems is always challenging, and eelgrasses and the
associated parts of their ecosystems are no exception. At a
minimum, ecosystem recovery is only likely to be effective
where ongoing threats and stressors to eelgrass beds and their
inhabitants have been largely eliminated. To the extent that
such issues remain, or the original eelgrass habitat has been
irreversibly changed (e.g., through dredging of ship channels
and building of port facilities), restoration of eelgrass
ecosystems will be impossible. Reviews of previous
transplantation efforts also reveal that, even where ecological
conditions seem conducive to eelgrass re-establishment,
expensive transplant efforts often have mixed levels of
success. These issues have repercussions for the cumulative
amount of carbon-mitigation and other co-benefits that the
state should realistically expect through eelgrass restoration
efforts.
4) Funding? SB 1363, as an unfunded mandate, will require new,
unspecified funding to the Ocean Protection Trust Fund for full
OPC implementation. By the time SB 1363 comes into effect,
current funding for OPC programs through the Proposition 84
bond will have expired. The question therefore arises as to the
source of funding for this program.
5) Programmatic flexibility & scientific rigor. SB 1363 mandates
in §35631(a), that the OPC, "in coordination with the State
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Coastal Conservancy, shall establish and administer" the new
Program, but there is no rationale in the bill for this
particular pairing of agencies, and an arbitrary statutory
mandate for one agency to coordinate with another in one of its
programs could be problematic. On the other hand, given the
role of the Ocean Science Trust (OST) in coordinating the OAH
Panel, coordinating the monitoring of the state's network of
marine protected areas, and co-chairing the OPC's Science
Advisory Team, OST could be considered as one of several
important partners in the listed projects. Because the bill is
focused on improving the scientific basis for OAH-mitigation
through eelgrass restoration, and the Coastal Conservancy is
not primarily a scientific agency, the committee may wish to
amend the bill to also require OPC to consult with other
relevant agencies in the design and implementation of the
mandated research projects.
6) Research needs. In §35631(a)(1), the bill specifies "to
evaluate the best locations that are optimal for implementing
carbon dioxide removal strategies, including the protection and
restoration of eelgrass beds."
To provide additional guidance, changes are needed that
preserve the legislative intent, but suggest greater
impartiality about the most appropriate research approaches
while also recognizing some of the dynamic ecological
complexities in finding optima. An amendment is therefore
needed to replace the above language with "to research how
important environmental and ecological factors interact across
space and time to influence how geographically dispersed
eelgrass beds function for carbon dioxide removal and hypoxia
reduction."
7) Clarifying amendments. There are places where proposed bill and
existing statutory language could be clarified.
a) In §35630(5), the bill states "?helping to mitigate sea
level rise." The committee may wish to clarify this to read
"?helping to mitigate the impacts of sea level rise."
b) In §35650(c), which SB 1363 will amend, statute states
"Grants or loans may be made to a private entity pursuant to
this section only for projects or activities that further
public purposes?" While technically not precluding grants or
loans to public entities, the existing language raises the
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question of whether greater clarity might be achieved with a
change to "Grants or loans may be made to a public or
private entity pursuant to this section only for projects or
activities that further public purposes?"
Related/Prior Legislation
AB 2139 (Williams) requires that the Ocean Protection Council
shall facilitate research and compile data on the causes and
effects of ocean acidification and, no later than January 1, 2018,
shall adopt recommendations for further legislative and executive
actions to address ocean acidification. AB 2139 is currently in
the Assembly Natural Resources Committee.
DOUBLE REFERRAL:
This measure was heard in Senate Natural Resources and Water
Committee on
April 12, 2016, and passed out of committee with a vote of 7-2.
SOURCE: Audubon California
SUPPORT:
Azul
Big Sur Land Trust
Bolsa Chica Land Trust
California Coastal Protection Network
California League of Conservation Voters
California Waterfowl Association
Clean Water Action
Monterey Bay Aquarium
Morro Bay Oyster Company
Ocean Conservancy
Pacific Coast Shellfish Growers Association
Peninsula Open Space Trust
Sonoma County Agricultural Preservation and Open Space District
Surfrider Foundation
OPPOSITION:
None received
ARGUMENTS IN
SUPPORT:
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According to Audubon California and other supporters, SB 1363
addresses the growing threat of ocean acidification and hypoxia
and the significant loss of critical eelgrass habitat along
California's coast. Recognizing the important role that eelgrass
plays in maintaining the overall health of coastal ecosystems,
migratory species, mitigating the effects of ocean acidification
and hypoxia, and sea level rise, Audubon California and others
support the overall framework of this bill.
The California Waterfowl Association makes particular note of the
value of eelgrass beds for many waterfowl species, but especially
black brant, a sea goose species of Management Concern and a Focal
Species of the U.S. Fish and Wildlife Service.
The Monterey Bay Aquarium supports the bill, but also suggested
strengthening it with an amendment to require monitoring of the
effectiveness of carbon dioxide removal strategies applied under
the new Program. "Such monitoring would provide
management-relevant science to help the region better understand
ocean acidification and hypoxia, and measure success in addressing
it."
The Pacific Coast Shellfish Growers Association and the Morro Bay
Oyster Company state that they generally support SB 1363's goals
to address ocean acidification and hypoxia, but request amendments
that better emphasize that shellfish farming, as a form of
sustainable aquaculture, is not the problem, but a victim when it
comes to ocean acidification. Moreover, according to the letters,
oyster farms can facilitate conditions conducive to eelgrass
growth. The letters also request, among other changes, that an
amendment expand OPC program coordination to include fisheries,
aquaculture, and harbor stakeholders.
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