BILL ANALYSIS �
AB 1886
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Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Jared Huffman, Chair
AB 1886 (Chesbro) - As Introduced: February 22, 2012
SUBJECT : Aquaculture
SUMMARY : Increases the regulatory fees for aquaculture
facilities and expands the duties of the aquaculture program
coordinator position within the Department of Fish and Game
(DFG). Specifically, this bill :
1)Expands the duties of the existing aquaculture coordinator
position within DFG to include coordinating with the
Aquaculture Development Committee regarding the aquaculture
coordinator program, and provides that the duties of the
aquaculture coordinator are to be performed as part of an
aquaculture coordinator program.
2)Increases the registration, renewal, surcharge and penalty
base fees for aquaculture facilities, effective 2013, as
follows:
a) Increases the base registration fee from $549 to
$800;
b) Increases the base registration renewal fee from
$250 to $500;
c) Increases the registration surcharge for facilities
with gross annual sales of over $25,000 from $412 to
$600;
d) Increases the penalty for engaging in aquaculture
without paying registration fees from $50 to $150.
3)Requires DFG to provide an accounting of the aquaculture
coordinator program account balance and expenditures upon
request of the Aquaculture Development Committee or the Joint
Committee on Fisheries and Aquaculture, and requires DFG to
provide a report to the Legislature by February 1, 2017,
regarding the aquaculture coordinator program as specified.
4)Requires that revenues received from the payment of
aquaculture registration fees and surcharges be used only for
costs incurred in the administration and enforcement of the
program.
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5)Sunsets the entire chapter providing for the aquaculture
coordinator position and requiring registration of aquaculture
facilities and payment of fees after 5 years, effective
January 1, 2018.
EXISTING LAW :
1)Requires the owner of an aquaculture facility to register
annually with DFG and provide specified information regarding
the aquaculture operation, and to pay a registration fee or
registration renewal fee. Makes it unlawful to conduct
aquaculture operations unless registered.
2)Authorizes DFG to review information provided in aquaculture
registrations to ensure the operation will not be detrimental
to native wildlife, and requires DFG to impose fees for the
costs of reviewing registrations. The amount of the
registration fees are set in statute and are required to be
adjusted annually for inflation.
3)Authorizes DFG to prohibit an aquaculture operation or the
culturing of any species at any location where it is
determined it would be detrimental to adjacent native
wildlife.
4)Provides for an aquaculture coordinator position within DFG
whose duties include promoting understanding of aquaculture,
proposing methods of reducing the negative impact of public
regulation on the aquaculture industry, and providing
information on regulatory compliance to various sectors of the
aquaculture industry.
5)Establishes the amount of fees in statute for registration and
renewal of aquaculture facilities and surcharges, and requires
those fees to be adjusted by DFG annually based on changes in
the Implicit Price Deflator. The current statutory base fees
are $549 for registration, $275 for renewals, and $412
surcharge for larger aquaculture facilities. With annual
adjustments, the 2012 fees are $736 for registration, $372.25
for renewal, and $554.25 for the surcharge.
FISCAL EFFECT : Unknown. Increases fees for registration of
aquaculture facilities.
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COMMENTS : The author indicates the purpose of this bill is to
increase aquaculture fees, clarify that the aquaculture
coordinator position in DFG is part of an aquaculture
coordinator "program," require an annual accounting of account
balances and expenditures, require a report to the Legislature
after 4 years, and add a 5 year sunset to the program. The
author notes that DFG relates to the aquaculture industry as
both a regulator and a lead agency. The industry indicates it
is willing to pay increased fees if this will assist DFG in
offsetting DFG's costs for the services that the Aquaculture
Coordinator provides for the industry and to ensure that funds
are efficiently spent and accounted for. Examples of the
services the industry wants DFG to provide to meet industry
needs include but are not limited to a Programmatic
Environmental Impact Report for Coastal Marine Aquaculture,
state land leases for aquaculture, and private stocking permits.
The aquaculture coordinator position at DFG, which works with
the aquaculture industry to assist the industry with regulatory
compliance, has been vacant for about one year. A search for
candidates to fill the position is currently under way. This
bill, among other things, adds to the aquaculture coordinator's
duties the duty to coordinate with the Aquaculture Development
Committee. The Aquaculture Development Committee is an advisory
committee which consists of 12 members appointed by the DFG
director representing all sectors of the aquaculture industry.
The committee also includes one member from DFG, two members
from the University of California, and one member each from the
Department of Food and Agriculture, the California Coastal
Commission, the State Lands Commission, the State Water
Resources Control Board, the State Department of Health
Services, and the Joint Legislative Committee on Fisheries and
Aquaculture.
Suggested Clarifying Amendments : This bill requires that
revenues received from the payment of aquaculture registration
fees and surcharges may be used only for costs incurred in the
administration and enforcement of "the program." It is unclear
what "the program" referred to in this section means,
particularly since Section 1 of the bill refers to "the
aquaculture coordinator program." The aquaculture coordinator
is a staff position within DFG whose responsibilities include
coordination between the aquaculture industry and DFG, but the
aquaculture coordinator position is just one aspect of DFG's
aquaculture program. For example, DFG reviews registration
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applications to ensure that the operation will not be
detrimental to native wildlife, and may prohibit an aquaculture
operation or the culturing of a species at any location where it
is determined such operations would be detrimental to adjacent
native wildlife. The existing law provides that the aquaculture
registration fees collected shall be deposited in the Fish and
Game Preservation Fund and expended solely on the department's
aquaculture program pursuant to this division. The language in
this bill should be clarified to ensure that it is not
inappropriately narrowing the scope of what the aquaculture
registration fees are intended to fund, and to clarify that the
aquaculture coordinator position and duties are part of DFG's
overall aquaculture program.
Committee staff therefore recommends the following amendments:
On page 2, lines 4 and 5, strike " as part of the aquaculture
coordinator program ," on page 4, line 17 strike " coordinator ",
on page 4, line 22 strike program and insert " department's
aquaculture program ," and on page 4 line 25 strike the word
coordinator .
This bill also adds a 5 year sunset clause to the entire chapter
(both the changes made by this bill and the existing law) which
not only authorizes the aquaculture coordinator position and
increased registration fees but also includes the requirement
that aquaculture operations be registered, and makes it unlawful
to conduct aquaculture operations unless so registered. If this
sunset were to take effect in 5 years, essentially all of the
requirements for aquaculture operations to be registered, for
payment of registration fees, and DFG's authority to review the
information provided to ensure the operation will not be
detrimental to native wildlife, would be repealed. The broad
scope of the sunset provision in this bill may be unintended, as
it is not clear that the author's intent is to eliminate
regulation and oversight of aquaculture operations after 5
years. Committee staff recommends that the sunset clause either
be deleted from the bill or, alternatively, that it be amended
to apply only to the fee increases in the bill, so that the fees
would revert back after 5 years to those in effect prior to this
bill taking effect, without repealing the entire chapter.
Fee Increases : The fiscal rationale for the particular fee
increase amounts provided for in this bill are unclear. The fee
increases amount to about a 9% increase above current fees for
registration, a 34% increase for renewals, and a 9% increase in
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the surcharge. Under current law, the base fees are set in
statute but are adjusted annually by DFG based on changes in the
Implicit Price Deflator. If the current fees are determined to
be inadequate to cover the costs of the program, the Legislature
may wish to consider whether it would preferable to give DFG or
the Fish and Game Commission (FGC) authority to increase the
fees to a level sufficient to cover but not exceed program
costs.
Additional Related Background : As additional contextual
background related to private stocking permits, the committee
should be aware that in 2006 a lawsuit was filed against DFG
asserting that DFG's fish stocking program failed to comply with
the California Environmental Quality Act. The lawsuit raised
concerns about impacts of fish stocking on legally protected and
sensitive fish and wildlife species such as salmon, steelhead
and native amphibians. In July 2007, the court in Pacific
Rivers Council, et al v. California Department of Fish and Game
ordered DFG to comply with CEQA. DFG subsequently prepared an
Environmental Impact Report (EIR) that addressed fish stocking
operations, DFG hatchery operations, and issuance of private
fish stocking permits. The EIR identified a number of
biological impacts on native species from hatchery and stocking
operations, including potential spread of invasive species,
diseases and pathogens, and predation, competition and genetic
effects. The preferred alternative recommended by DFG in the
EIR would allow for continuation of stocking to provide
recreational angler opportunities, but subject to guidelines for
protection of native species. The preferred alternative also
included steps to reduce environmental impacts from private
stocking by requiring stocking permits, certification of
hatchery operations, and biological species surveys at planting
locations. The preferred alternative selected by DFG was also
the U.S. Fish and Wildlife Service and NEPA preferred
alternative. After the EIR was issued, DFG proposed adoption of
regulations to the FGC. In December 2011, the FGC rejected the
proposed DFG regulations that would have required biological
assessments for fish stocking and growing permits. The
regulations were opposed by the aquaculture industry. DFG
estimated the additional costs to the industry would have been
in the hundreds of dollars annually, whereas the industry
testified the costs could average as much as $133,000. The
regulations were tabled pending further stakeholder discussions
so that issue remains unresolved.
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REGISTERED SUPPORT / OPPOSITION :
Support
California Aquaculture Association (sponsor)
Coast Seafoods Company
Hog Island Oyster Company
Kent BioEnergy
Monterey Abalone Company
Pacific Aquafarms
Opposition
None on file
Analysis Prepared by : Diane Colborn / W., P. & W. / (916)
319-2096