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AB-303 Aquaculture: mariculture production and restoration: pilot program.(2021-2022)

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Date Published: 04/21/2021 09:00 PM
AB303:v96#DOCUMENT

Amended  IN  Assembly  April 21, 2021
Amended  IN  Assembly  March 30, 2021
Amended  IN  Assembly  March 15, 2021

CALIFORNIA LEGISLATURE— 2021–2022 REGULAR SESSION

Assembly Bill
No. 303

Introduced by Assembly Member Robert Rivas
(Principal coauthor: Senator Wiener)
(Coauthors: Assembly Members Cristina Garcia and Levine)
(Coauthor: Senator Hueso)

January 25, 2021

An act to amend Section 828 of, to add the heading of Article 1 (commencing with Section 825) to Chapter 4 of Division 1 of, to add and repeal Article 2 (commencing with Section 845) of Chapter 4 of Division 1 of, and to repeal and add Sections 829 and 830 of, the Public Resources Code, relating to aquaculture.


LEGISLATIVE COUNSEL'S DIGEST


AB 303, as amended, Robert Rivas. Aquaculture: mariculture production and restoration: pilot program.
Existing law provides for the regulation and development of aquaculture and requires the owner of each aquaculture facility to register with the Department of Fish and Wildlife. Existing law authorizes the department, among other powers, to assess annual registration fees on owners of aquaculture facilities and to prohibit an aquaculture operation or the culturing of any species at any location where it would be detrimental to adjacent native wildlife. Existing law authorizes the Fish and Game Commission to lease state water bottoms or the water column to any person for aquaculture, as prescribed, and requires the department to notify the State Lands Commission of all applications for water bottom leases and of all leases for aquaculture executed, renewed, or assigned. Under existing law, the California Coastal Act of 1976, the California Coastal Commission is responsible for the implementation of the act and for state coastal zone planning and management.
This bill would require the department department, in collaboration with the California Coastal Commission, to, by January 1, 2024, create a pilot program in state waters to test alternative shellfish and seaweed mariculture production and restoration strategies. The bill would require the department to designate tracts for shellfish and seaweed mariculture production and restoration as part of the pilot program, as specified. The bill would authorize an applicant with a proposed shellfish, seaweed, or shellfish and seaweed mariculture production and restoration project to apply for a lease of any pilot program tract, or a portion thereof. The bill would require the State Lands Commission or the Fish and Game Commission, or both, if applicable to approve, deny, or return for revision a lease application within 4 months.
The bill would authorize a local government to apply for a shellfish and seaweed mariculture production and restoration lease and designate individual mariculturalists as sublessees without authorization from the department, the State Lands Commission, or the Fish and Game Commission. A local government would be required to notify the department, the State Lands Commission, or the Fish and Game Commission of a sublease within 2 months of the beginning of the sublease.
The bill would provide the department, by January 1, 2024, within the pilot program tracts, with sole authority or jurisdiction to approve, deny, or otherwise affect the ability of shellfish and seaweed mariculture production and restoration projects to operate, as well as to enforce compliance with relevant regulations, excluding the roles and responsibilities of the State Water Resources Control Board and the relevant leasing authorities.
The bill would authorize a mariculturalist holding a lease to a pilot program tract to be able to begin cultivation without a permit, except any permit required by the State Water Resources Control Board.
The bill would require the department to conduct ongoing monitoring and enforce compliance with the rules and regulations of the pilot program and to work with noncompliant aquaculturalists to resolve any noncompliance issues if possible. The bill would authorize the department to close any operation in the pilot program due to noncompliance if no other reasonable resolution is possible.
The bill would require, on or before December 1, 2030, when sufficient data has been collected, the department to prepare a report on the pilot program and make recommendations to the Legislature on any relevant changes to the mariculture and restoration permitting and regulatory processes, as specified.
The bill would repeal the provisions establishing the pilot program on January 1, 2036, and upon termination, would require the department to offer participants in the pilot program, one year from the date of termination, to come into compliance with any rules and regulations not applicable in the pilot program tracts in order to keep operating.
The bill would require the department to consider and, if appropriate, investigate whether and how to seek state verification authority from the United States Army Corps of Engineers and any other federal agencies offering state verification authority in order to streamline the review and approval of federal permits issued by the United States Army Corps of Engineers or another federal agency that may be required by a mariculture project intending to operate in this state.
The bill would require the department to ensure the inclusion of socially disadvantaged aquaculturalists in the development, adoption, implementation, and enforcement of laws, regulations, and policies and programs relating to aquaculture production and restoration.
The bill would also make legislative findings and declarations and adopt definitions to implement its provisions.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) California has the potential to become a global leader in sustainable shellfish, seaweed, and other low-trophic mariculture production and restoration, while also increasing coastal resiliency and strengthening climate change adaptation.
(2) In the coming years, sustainable sources of food must become more broadly available to a growing population, even as climate change strains food supplies across the planet.
(3) The ocean, coastlines, and coastal communities are disproportionately impacted by increasing carbon dioxide and other greenhouse gas emissions. These impacts include changes in water temperature, ocean acidification and deoxygenation, rising sea levels, increased storm intensity, and changes in the diversity and abundance of marine species, among other effects. Climate-driven degradation of coastal and marine ecosystems threatens the physical, economic, and food security of California communities, and weakens the ability of the ocean to provide critical ecosystem services such as food production and carbon sequestration.
(4) In addition to, and partially as a result of, global climate change impacts, California has experienced historic and continued degradation of its ecosystems. For example, in the past decade, more than 96 percent of the bull kelp in Northern California has disappeared, and two species of abalone are now listed under the federal Endangered Species Act.
(5) A diverse portfolio of well-designed and managed aquaculture operations that includes shellfish, seaweed, and other low-trophic mariculture will help support a more sustainable and resilient food supply amidst changing environmental conditions, while simultaneously proving restorative in nature, reducing the impact of climate change on our coasts and oceans through ecosystem services such as carbon sequestration, water filtration, coastal defense, oxygen production, and provision of essential habitat for wild species.
(6) Recovery of depleted marine species and habitats can be advanced through conservation efforts led by traditional academic and conservation practitioners, as well as through focused mariculture, which in some instances can be led by commercial operators. Additionally, mariculture can provide real-time monitoring of changing climate and ocean conditions through an ongoing review of impacts on production and restoration, often in collaboration with academia.
(7) Through Executive Orders Nos. N-82-20 and B-55-18, California has acknowledged the role natural and working lands and waters can and will play in reducing the impacts of anthropogenic climate change. Mariculture production and restoration are among the most effective uses of natural and working marine ecosystems in providing ecosystem, water quality, and carbon sequestration benefits.
(8) Innovation and experimentation are critical to advancing mariculture and marine restoration in the state. In order to better engage and leverage the private sector to test mariculture and restoration techniques, and finance new marine restoration projects, new approaches are needed to expedite and harmonize permitting and approval for mariculture activities, restoration research, and experimental pilot projects that can, if successful, be expanded to full-scale operations.
(9) Demand for environmentally beneficial shellfish, seaweed, and other low-trophic mariculture projects far outpaces the regulatory approval process. As a result, shellfish, seaweed, and other low-trophic mariculture activities that could benefit California’s marine habitats and ecosystems are not being implemented.
(10) Recovery of depleted organisms through restoration, translocation, and reintroduction may help improve the resiliency of our coastal ocean ecosystems to climate and other anthropogenic stressors.
(b) It is the intent of the Legislature in enacting this act to pilot innovative new approaches to permitting efficiency and thereby encourage sustainable shellfish, seaweed, and other low-trophic mariculture operations and marine restoration projects.
(c) Furthermore, it is the intent of the Legislature that the enactment of this act does not preclude the integration of sustainable aquaculture activities other than sustainable shellfish, seaweed, and other low-trophic mariculture production and restoration.

SEC. 2.

 The heading of Article 1 (commencing with Section 825) is added to Chapter 4 of Division 1 of the Public Resources Code, to read:
Article  1. General Provisions

SEC. 3.

 Section 828 of the Public Resources Code is amended to read:

828.
 For purposes of this chapter, the following definitions apply:
(a) “Aquaculture” has the same meaning as defined in Section 25.5 of the Food and Agricultural Code. “Aquaculture” does not mean the culture and husbandry of commercially utilized inland crops, including, but not limited to, rice, watercress, and bean sprouts.
(b) “Department” means the Department of Fish and Wildlife.

(c)“Disproportionately affected community” means a community that is any of the following:

(1)A disadvantaged community as defined in Section 75005.

(2)A low-income community as defined in Section 39713 of the Health and Safety Code.

(3)A community within an area identified as among the most disadvantaged 25 percent in the state pursuant to Section 39711 of the Health and Safety Code.

(4)A community in which at least 75 percent of public school students in the project area are eligible to receive free or reduced-price meals under the National School Lunch Program.

(5)A community located on lands belonging to a federally recognized Indian tribe.

(d)

(c) “Mariculture” means aquaculture occurring in a marine or estuarine environment, including, but not limited to, a marine estuary, bay, harbor, or port.

(e)

(d) “Mariculture restoration” means activities in which the principal focus is the culture of degraded species intended to replace species or habitat types in locations where that species or habitat has recently existed, or bring a species or habitat back to a documented former state for purposes of environmental conservation, protection of biodiversity, or resiliency to sea level rise, storm surges, or other environmental hazards related to anthropogenic climate change.

SEC. 4.

 Section 829 of the Public Resources Code is repealed.

SEC. 5.

 Section 829 is added to the Public Resources Code, to read:

829.
 The department shall consider and, if appropriate, investigate whether and how to seek state verification authority from the United States Army Corps of Engineers and any other federal agencies offering state verification authority in order to streamline the review and approval of federal permits issued by the United States Army Corps of Engineers or another federal agency that may be required by a mariculture project intending to operate in this state.

SEC. 6.

 Section 830 of the Public Resources Code is repealed.

SEC. 7.

 Section 830 is added to the Public Resources Code, to read:

830.
 (a) The department shall ensure the inclusion of socially disadvantaged aquaculturalists in the development, adoption, implementation, and enforcement of laws, regulations, and policies and programs relating to aquaculture production and restoration.
(b) For purposes of this section, “socially disadvantaged aquaculturalist” means an aquaculturalist who is a member of a group whose members have been subjected to racial, ethnic, or gender prejudice because of their identity as members of a group without regard to their individual qualities, including those groups identified as socially disadvantaged groups in Section 512 of the Food and Agricultural Code.

SEC. 8.

 Article 2 (commencing with Section 845) is added to Chapter 4 of Division 1 of the Public Resources Code, to read:
Article  2. Mariculture Pilot Program

845.
 (a) (1) By January 1, 2024, the department department, in collaboration with the California Coastal Commission, shall begin a pilot program in state waters to test alternative shellfish and seaweed mariculture production and restoration strategies. The department, in consultation with the Fish and Game Commission, the California Coastal Commission, the Ocean Protection Council, and the State Lands Commission, as well as, if feasible, the National Oceanic and Atmospheric Administration, the United States Department of Defense, California Native American tribes as defined in Section 21073, and relevant academics, nongovernmental organizations, including environmental organizations, mariculture growers, ports, and other relevant stakeholders stakeholders, shall adopt regulations for shellfish and seaweed mariculture production and restoration in the pilot program tracts. In
(2) The department shall request consultation with the National Oceanic and Atmospheric Administration and the United States Department of Defense regarding the adoption of regulations pursuant to paragraph (1).
(b) In adopting the regulations, regulations pursuant to subdivision (a), the department shall do all of the following:
(1) Develop new or updated, or endorse existing, best management practices for shellfish and seaweed mariculture production and restoration projects in the pilot program tracts. The best management practices shall provide guidance on relevant subjects including, but not limited to, ecological impacts, plastics contamination, allowed cultivation techniques, viewshed management, allowed species for restoration, ongoing monitoring and compliance, and allowed species for production, including, but not limited to, all of the following:
(A) Atlantic oyster (Crassostrea virginica).
(B) Bay mussel (Mytilus species).
(C) Bull kelp (Nereocystis leutkeana).
(D) European flat oyster (Ostrea edulis).
(E) Giant kelp (Macrocystis pyrifera).
(F) Kumamoto oyster (Crassostrea sikamea).
(G) Manila clam (Venerupis philippinarum).
(H) Olympia Oyster (Ostrea lurida).
(I) Pacific Oyster (Crassostrea gigas).
(2) Designate no fewer than five, five 200-hectare tracts of estuary or ocean for shellfish and seaweed mariculture production and restoration as part of the pilot program. These tracts shall meet all of the following criteria:
(A) At least two shall be located north of Point Conception.
(B) At least two shall be located south of Point Conception.
(C) Be at least 20 miles apart from each other.
(D) Not primarily accessible from the same harbor as another tract.

(C)

(E) At least one shall have a recognized need for restoration of bull kelp forests.

(D)

(F) Not be narrower than 50 meters in width at any given point.

(E)

(G) Have sufficient access to nearby harbors and suitable parcels for onshore operations.

(F)

(H) Have minimal conflicting uses that would make shellfish and seaweed mariculture production and restoration inadvisable at the designated tract, including, but not limited to, all of the following:
(i) Regular ship traffic.
(ii) Military activities.
(iii) Significant commercial or recreational fishing activities.

(G)

(I) Have minimal environmental concerns or conflicts that would make shellfish and seaweed mariculture production and restoration inadvisable at the designated tract, including, but not limited to, all of the following:
(i) Water bottom habitat that is ecologically sensitive or otherwise improper for shellfish and seaweed mariculture production and restoration.
(ii) An elevated risk of marine mammal entanglement.
(iii) Potential to negatively affect brant or other waterfowl populations.

(H)

(J) Have an environment that is suitable for shellfish and seaweed mariculture production and restoration using contemporary cultivation practices and technologies, including, but not limited to, suitable water bottom substrate, water quality, temperature, and nutrient levels.

(I)

(K) Have an environment that may benefit from shellfish and seaweed mariculture production and restoration in areas including, but not limited to, water quality, water temperature, acidity, and provision of habitat.
(3) Adopt goals for shellfish and seaweed mariculture production and restoration in the pilot program tracts, regarding all of the following topics:
(A) Minimum levels of production, restoration, and participation in the pilot program.
(B) Provision of cobenefits through adjacent production of shellfish and seaweed and adjacent production and restoration where feasible.
(C) Provision of environmental benefits from shellfish and seaweed mariculture production and restoration, including advancement of the goals of Executive Orders Nos. N-82-20 and B-55-18.
(D) Ensuring at least 40 percent of the total area under the pilot program shall be allocated to projects that provide direct and meaningful benefits to aquaculturalists in disproportionally affected communities. any of the following communities:
(i) A disadvantaged community, as described in Section 39711 of the Health and Safety Code.
(ii) A low-income household, as defined in Section 39713 of Health and Safety Code.
(iii) Low-income communities, as defined in Section 39713 of the Health and Safety Code.
(iv)  Low-income households that are outside of, but within one-half mile of, communities described in Section 39711 of the Health and Safety Code.
(v) Low-income communities that are outside of, but within one-half mile of, communities described in Section 39711 of the Health and Safety Code.

(b)

(c) Notwithstanding any other law, a mariculturalist holding a lease to a pilot program tract may begin cultivation without a permit, except any permit required by the State Water Resources Control Board.

(c)

(d) (1)  Notwithstanding any other law, commencing January 1, 2024, the department shall, within the pilot program tracts, have sole authority or jurisdiction to approve, deny, or otherwise affect the ability of shellfish and seaweed mariculture production and restoration projects to operate, excluding the roles and responsibilities of the State Water Resources Control Board and the relevant leasing authorities.
(2)  Notwithstanding any other law, commencing January 1, 2024, the department shall, within the pilot program tracts, have sole authority or jurisdiction to enforce compliance with the rules and regulations of the pilot program, excluding the roles and responsibilities of the State Water Resources Control Board and the relevant leasing authorities.
(e) (1) The department shall do both of the following:
(A) Conduct ongoing monitoring and enforce compliance with the rules and regulations of the pilot program.
(B) Work with noncompliant aquaculturalists to resolve any noncompliance issues if possible.
(2) The department may close any operation in the pilot program due to noncompliance if no other reasonable resolution is possible.

846.
 (a) An applicant with a proposed shellfish, seaweed, or shellfish and seaweed mariculture production and restoration project shall apply for a lease of any pilot program tract, or a portion of a tract.
(b) Notwithstanding any other law, the State Lands Commission or the Fish and Game Commission, or both, if applicable, shall review completed applications under the pilot program in order to assess the need for a water bottom lease or ground lease of state lands by the applicant to implement and operate the proposed, applied-for shellfish and seaweed mariculture production and restoration project.
(c) Notwithstanding any other law, if the State Lands Commission or the Fish and Game Commission, or both, if applicable, determine that the shellfish and seaweed mariculture production and restoration applicant would require a water bottom lease or ground lease of state lands to implement and operate the applied-for shellfish and seaweed mariculture production and restoration project, the State Lands Commission or the Fish and Game Commission, or both, if applicable, shall prepare, review, and either approve or deny a water bottom lease or ground lease within four months of receiving the completed application. Once the water bottom or ground water lease is approved, no permit is necessary to begin the applied-for shellfish and seaweed mariculture production and restoration project, except a permit required by the State Water Resources Control Board.
(d) If the State Lands Commission or the Fish and Game Commission deny a water bottom lease or ground lease to an applicant, the State Lands Commission or the Fish and Game Commission, or both, if applicable, shall provide the applicant with a written explanation and reasons for the denial. Upon receipt of the written explanation, the applicant shall have 30 days to administratively appeal the denial of the water bottom lease or ground lease. If the applicant files an administrative appeal within the time provided, the State Lands Commission or the Fish and Game Commission, or both, if applicable, shall hold a hearing regarding the applicant’s appeal to determine whether to uphold or overturn the denial of the water bottom lease or ground lease. The State Lands Commission and the Fish and Game Commission shall accept revisions to shellfish and seaweed mariculture production and restoration project applications on an ongoing basis, and shall notify an applicant of needed revisions at the time the issue is detected and accept revisions on a rolling basis. The State Lands Commission and the Fish and Game Commission may develop procedures and adopt regulations for administrative appeals pursuant to this subdivision.
(e) A local government may apply for a shellfish and seaweed mariculture production and restoration lease and designate individual mariculturalists as sublessees without authorization from the department, the State Lands Commission, or the Fish and Game Commission. A local government shall notify the department, the State Lands Commission, or the Fish and Game Commission of a sublease within two months of the beginning of the sublease.

847.
 (a) On or before December 1, 2030, the department shall prepare a report on the pilot program and When sufficient data has been collected, the department shall make recommendations to the Legislature on any relevant changes to the shellfish and seaweed mariculture production and restoration permitting and regulatory processes. Specifically, the department shall examine all of the following:
(1) Environmental impacts and benefits of shellfish and seaweed mariculture production and restoration projects in the pilot program tracts as compared to state waters overall.
(2) Impact of the pilot program on coastal economies.
(3) Recommendations from the pilot program for state waters overall.
(4) Lessons learned and recommendations for mitigating conflicting uses with regular ship traffic, military activities, and significant commercial or recreational fishing activities.
(b) (1) The requirement for submitting a report imposed under subdivision (a) is inoperative on December 1, 2034, pursuant to Section 10231.5 of the Government Code.
(2) A report to be submitted pursuant to subdivision (a) shall be submitted in compliance with Section 9795 of the Government Code.

848.
 This article shall remain in effect only until January 1, 2036, and as of that date is repealed.

849.
 Upon termination of the pilot program pursuant to Section 848, the department shall offer participants in the pilot program, one year from the date of termination, to come into compliance with any rules and regulations not applicable in the pilot program tracts in order to keep operating.