Online Guide To California's Marine Life Management Act
Specific Tools for Acheiving The MLMA's Goals
The MLMA identifies several tools for achieving its goals:



EXTERNAL PEER REVIEW

The MLMA identifies several ways in which management decisions can be based on the best available scientific information. The first is external peer review of the scientific basis of key documents[7062(a)]. At a minimum, these documents include fishery research protocols [7074], fishery research plans [7062.1], and fishery management plans [7075(a)].

The MLMA authorizes the Department to contract with an outside, non-advocacy organization, such as Sea Grant, or other groups approved by the Commission, to select and administer panels of reviewers [7062(b)]. These reviewers are to have relevant expertise for evaluating the document. The reviewers are not to have participated in the document's preparation or be Department or Commission employees.

The panel of peer reviewers is to provide a written report evaluating the scientific basis of a document [7062(c)]. The report should state whether any scientific parts of the document are not based on sound scientific knowledge, methods, and practices. If the Department does not revise the document to address such a finding, it is to explain its reasons for doing so. Both the peer review report and the Department's response are to be submitted to the Commission.

The Department may determine that a particular fishery management plan does not require an external peer review, based on criteria adopted by the Commission [7075(a)]. If it does so, the Department must submit its reasons to the Commission. A similar process applies to exempting interim fishery research protocols discussed later [7074(d)]. But, for both fishery management plans and research protocols, a peer review is the default requirement.


FISHERY RESEARCH PROTOCOLS

The MLMA requires that fishery management plans and amendments contain a fishery research protocol that includes the following information [7081]:
  • Past and current monitoring of the fishery,


  • Essential fishery information, such as age structure of a population and spawning season, and other relevant information, and


  • Plans for additional monitoring and research needed to acquire essential fishery information.

The only management plans identified specifically in the MLMA are the plans for white seabass and for nearshore finfish. The MLMA also requires that the Department prepare interim research protocols for at least the top three priority fisheries identified in the master plan [7074(a)]. In preparing these interim protocols, the Department is to involve fishermen, conservationists, marine scientists and others [7074(b)]. These protocols also must be submitted to external peer review unless the Department determines there is no need, based on criteria approved by the Commission [7074(c) and (d)].


FISHERY MANAGEMENT PLANS (FMPs)

As elsewhere in the United States and the world, the management of fisheries in California has generally been undertaken in a piecemeal fashion. Borrowing from experience with federal fishery management law, the MLMA has initiated a more comprehensive approach to fisheries management. The primary vehicle for this approach is the development of fishery management plans for all of the State's major recreational and commercial fisheries. Initially, the MLMA authorizes the development and implementation of two fishery management plans: one for white seabass and the other for the nearshore finfish fishery.

Fishery Management Plan Policies
The MLMA emphasizes that achieving its goals in managing California's sport and commercial marine fisheries requires fishery management plans [7070; 7072(a)]. These plans, or FMPs, are to be based on the best scientific information available, as well as other relevant information [7072(b)]. FMPs are to allocate any increases or decreases in allowable catches fairly between commercial and recreational fishermen [7072(c)].

Fishery Management Plan Process
The MLMA makes the Department responsible for developing fishery management plans and implementing regulations, as well as amendments to any existing plans [7075(a)]. The Department may have a fishery management plan developed under contract [7075(b)]. Whether an FMP is developed by the Department itself or under contract, the Department is to seek the views and help of fishermen, conservationists, marine scientists, and other people, as well as California Sea Grant, NMFS, the PFMC, the Pacific States Marine Fisheries Commission, and the Department's own advisory committees [7076(a)].

As in the cases of other decision documents, the scientific basis of a plan is to be reviewed by an independent panel of experts [7075(a)]. The Department is to provide the peer review panel with any written comments it has received from the public regarding the plan [7076(b)]. If the Department determines external peer review is unnecessary, it must provide the Commission with its reasons, based on criteria previously adopted by the Commission [7075(a)].

The Department then submits a completed fishery management plan and implementing regulations to the Commission for its consideration [7075(a)]. The Department must also make the plan and implementing regulations available for public review and comment at least 30 days before the Commission holds a hearing on the plan [7077]. The Department must also post plans and hearing schedules on its Internet website.

After the 30-day period, but within 60 days of the submission of the plan, the Commission is to hold at least two public hearings [7078(a)]. The Commission may take action on the plan at the second public hearing or at any later Commission meeting [7078(b)]. If the Commission rejects a plan, including its regulations, the Commission is to provide the Department with its reasons. The Department then has 90 days to revise and resubmit the plan. The Commission then reviews the plan, as before, and either approves or rejects it.

The Commission must adopt implementing regulations within 60 days after approving an FMP [7078(e)]. While adoption of these regulations must follow the Administrative Procedure Act, it does not trigger additional review under the California Environmental Quality Act, whose requirements are satisfied by the FMP. If the Commission's adoption of an FMP would supersede any existing statute, the Commission is to provide the Legislature with a copy of the plan before adoption [7078(d)].

While the MLMA itself specifies two fisheries for which FMPs are to be developed (nearshore finfish and white seabass), fishermen, scientists, conservationists, and other people may propose plans or provisions of plans for other fisheries [7075(d)]. After its review of such proposals, the Commission may recommend that the Department develop an FMP or incorporate provisions in an FMP, as proposed.

The process just described also applies to amendments to fishery management plans.

Contents of a Fishery Management Plan
Fishery management plans (FMPs) are just that: planning documents. FMPs assemble information, analyses, and management alternatives that allow the Department to provide a coherent package of information and management measures to the Commission. FMPs also provide a focus and basis for discussions among scientists, fishermen, conservationists, processors, and other people about the many issues that affect the sustainability of a fishery.

Since we have only a limited understanding of how fish populations, their habitats, and human activities change and affect each other, we must make assumptions in selecting management measures for a particular fishery. An FMP can articulate these assumptions, so that they can be tested through monitoring, and improvements can be made in the management of the fishery. Finally, an FMP describes how fishery management measures reflect the standards of the MLMA, from ensuring sustainability to limiting bycatch.

Under the MLMA, fishery management plans are to include at least the seven following elements:
  1. Description of the fishery


  2. Fishery science and essential fishery information


  3. Basic fishery conservation measures


  4. Habitat provisions


  5. Bycatch and discards


  6. Overfishing and rebuilding


  7. Amendment and other modification of an FMP

The MLMA describes the contents of each of these sections. FMPs will include other elements to satisfy requirements of other law such as the California Environmental Quality Act.

  1. Description of the Fishery: Marine fisheries are complex phenomena, in which fish, habitats, ocean conditions, fishermen, markets, and broader economic conditions all interact. A first step in managing such a complex thing is to describe its parts and their interactions. With this in mind, the MLMA calls for the Department to summarize readily available information about a fishery (7080). This summary is to include what is known about the following and other types of information:

    • The species of fish and their location, their natural history and population dynamics, and effects of ocean conditions;


    • The habitat of the fish and threats to the habitat;


    • The role of the target species in the ecosystem and the fishery's effect on that role;


    • The fleet, fishing effort, and landings by commercial and recreational fishermen;


    • Economic and social factors in the fishery; and


    • Past conservation and management measures in the fishery.

    Note that in preparing this and other sections of an FMP, the Department is to seek out the best available scientific information as well as other relevant information that can be obtained without substantially delaying the FMP [7072(b)]. Indeed, there may be little available information in some areas, such as socio-economic factors in a fishery and the population dynamics of individual species of fish or shellfish. The MLMA requires that research protocols identify these gaps and the steps that will be taken to fill them.


  2. Fishery Science and Essential Fishery Information: Management of marine fisheries is more likely to succeed if it is based on solid information and an understanding of the fish and the fishermen. Often, however, key pieces of information are lacking to begin with. Furthermore, fisheries change in response to regulations, fishing, and other factors such as climate. Effective management depends on clearly understanding what is known and not known. Collecting information will help us learn how well our view of the workings of a fishery actually track with reality.

    Under the MLMA, the vehicle for initiating this critical task is the fishery research protocol that each FMP is to include [7081]. This protocol is to describe the following:

    • Past and current monitoring of the fishery,


    • Essential fishery information for that fishery,


    • The time and resources needed to fill gaps in this information, and


    • The steps the Department is taking to monitor a fishery and to obtain essential fishery information.

    "Essential fishery information" includes information about the life history and habitat requirements of a species, status and trends in fish populations, effects of fishing on the age structure of a fish populations and on other marine living resources and users and whatever other information is needed to manage a fishery sustainably (93).

  3. Basic Fishery Conservation Measures: As mentioned above, the primary goal of the MLMA's fishery management policies is sustainability. Sustainability is to be achieved by:

    • Preventing overfishing,


    • Rebuilding depressed stocks,


    • Ensuring conservation, and


    • Promoting habitat protection and restoration.

    Management and conservation measures are the principal direct means for achieving these goals. The MLMA identifies several types of measures [7082]:

    • Limitations on area, time, amount of catch, species, type or amount of gear, Restricted access,


    • Review and adjustment of catch quotas, and


    • Personal, gear, or vessel permits and fees.

    The Department is to incorporate existing management measures into a fishery management plan if they will contribute to a sustainable fishery [7083(a)]. If the Department proposes additional measures, it must summarize anticipated effects on fish populations and habitats, fishermen, and coastal communities that rely on a fishery [7083(b)].


  4. Habitat Provisions: Healthy habitats are important for maintaining the productivity and diversity of marine ecosystems and viable commercial and recreational fisheries. With this in mind, the MLMA calls for minimizing damage to habitats [7056(b)]. While a lot of effort and funding has been devoted to the protection, conservation, and restoration of coastal habitats damaged by development and other activities on land, until recently the effect of some kinds of fishing gear and practices has been ignored. Now, however, research has shown that some fishing methods can dramatically alter seabed habitats.

    The MLMA recognizes the importance of protecting fisheries habitat from all types of activities, including fishing. It requires FMPs to include measures that minimize habitat damage caused by a fishery [7084]. Measures are limited to those that are "practicable."

    The Legislature exempted kelp harvesting from this requirement, since kelp is both a target of the fishery and a habitat. The other requirements of the MLMA will apply to any fishery management plan that might be developed for kelp.


  5. Bycatch and Discards: To one degree or another, nearly all types of sport and commercial fishing gear capture marine life other than the fish that are being sought. Trawls fishing for shrimp and prawns capture finfish and other marine life. Traps set for lobster may capture finfish as well. Longlines set for tunas may catch sharks, swordfish, or sea turtles. Gillnets may catch marine mammals, birds, and sharks. Because of the behavior of rockfish, commercial and recreational fishermen using hook and line often cannot tell which species of rockfish they will catch. Indeed, the only predictably "clean" fishing gears are the harpoon, the spear gun, sea urchin rake, and the human hand. Since discarded marine life often does not survive, bycatch can be a serious problem.

    While recreational and commercial fishermen may retain some bycatch, they discard fish that are of an undesirable species, size, or quality, or that regulations require that they release [91.1]. In the past, such bycatch and discards were so accepted as a part of fishing that they were not even monitored. But, in the last thirty years, the decline of vulnerable species of marine mammals, sea birds, sea turtles, and some fish gradually changed this view. Government agencies, fishermen, and scientists have been collecting information on bycatch in some fisheries. Fishermen and government scientists have also developed several new types of gear and fishing practices that have dramatically reduced bycatch.

    The MLMA aims to reduce the impact of bycatch and discards as a matter of standard management of fishing activities. The MLMA calls for making positive efforts to limit bycatch to "acceptable types and amounts" [7056(d)]. To meet this goal, the MLMA requires that an FMP for a fishery with bycatch include information on the amount and type of bycatch [7085]. An FMP is to determine the following:

    • The legality of the bycatch,

    • The threat posed to the bycatch species,

    • The impact on fisheries that target the bycatch species, and

    • The impact on ecosystems.

    If the amount or type of bycatch is unacceptable, the MLMA calls for adopting management measures that minimize the bycatch and the mortality of discards that cannot be avoided.

    Note that the MLMA defines and addresses bycatch differently from federal fisheries law, which defines bycatch as "fish which are harvested in a fishery, but which are not sold or kept for personal use, and includes economic discards and regulatory discards. Such term does not include fish released alive under a recreational catch and release fishery management program" [16 U.S.C. 1802]. The MLMA, on the other hand, includes marine life other than fish if it is not the target of the fishery, and whether or not the bycatch is discarded [90.5].

    This difference in the definition of bycatch has several important consequences. Among other things, the MLMA does not defer to other law in addressing bycatch of marine life such as marine mammals, seabirds, and endangered and threatened species. Under the Magnuson-Stevens Act, on the other hand, bycatch of such animals is addressed under other law, such as the Marine Mammal Protection Act.

    One national standard of the federal Magnuson Act calls for minimizing all bycatch. In contrast, the MLMA recognizes that the bycatch of marine animals in fisheries may have no appreciable effect. For instance, under-size lobster and crabs may be incidentally captured and released many times before they reach legal size. The MLMA only calls for the minimization of bycatch when the amount or type is "unacceptable".


  6. Overfishing and Rebuilding: For the last century, the primary focus of fisheries management has been the development of fisheries. As government and private investment poured into fisheries and technology developed, the power of fishing fleets grew so that catches were no longer limited by the number or size of fishing boats, but by the size of fish populations. Together with other factors, such as habitat loss and changes in ocean conditions, this increased fishing power led to overexploitation of some fish populations. Besides damage to ecosystems, overfishing has led to economic and social disruption, including lost jobs, higher consumer prices, lost investments, and the decline of fishing communities.

    Two of the goals of the MLMA are to prevent overfishing and to rebuild depressed fish populations [7055(b)]. To understand these goals, it is necessary to understand the use of several terms: depressed fishery, overfishing, and overfished.

    Depressed Fishery: The MLMA classifies a fishery as depressed if it meets either of two standards:

    1. If the fishery has been declining over a period of time appropriate for the fishery [90.7]. For instance, a population of a species that fluctuates widely in response to oceanographic changes, such as squid, probably would not qualify as de-pressed if it declined over a few years. However, the population of another species that was more vulnerable to fishing such as some rockfish might be classified as depressed if its abundance were at very low levels for the same number of years.


    2. If the abundance of a fish populations is below the level needed to produce what is called Maximum Sustainable Yield (MSY).
    The concept of depressed fisheries is not found in federal fisheries management law, which focuses only overfishing. The MLMA's depressed fishery classification is meant to foster conservation action for populations that are declining for unknown reasons or for a variety of reasons, such as habitat degradation, fishing, or changes in ocean conditions.

    Overfishing: The MLMA uses MSY also as one standard for determining whether there is overfishing in a fishery. According to the MLMA, overfishing is a rate or level of taking that the Department determines is not sustainable or that jeopardizes the capacity of a fishery to produce MSY in the future [98]. The MLMA does not require that the Department determine what the maximum sustainable yield of fishery is before concluding that overfishing is occurring.

    Overfished: If a fish population is depressed, and the principal means for rebuilding the population is a reduction of take, then the fishery is to be classified as "overfished" [97.5].
    As a first step in preventing overfishing, the MLMA requires that an FMP include criteria for determining when a fishery is overfished [7086(a)]. This measure, which is borrowed from a broader suite of precautionary measures found in several international treaties, is a major innovation in California fisheries. If properly set, these criteria will provide a way of identifying unsustainable trends in a fishery before drastic cut-backs in fishing have become inescapable.

    If a fishery is already overfished or overfishing is occurring, an FMP is to include measures to prevent or end overfishing and rebuild the fishery [7086(b)]. In these cases, an FMP is to specify a time period in which overfishing will be prevented or ended and the fishery will be rebuilt [7086(c)]. The rebuilding period is to be no longer than ten years, unless the biology of the fish or environmental conditions call for a different period of time. For example, it may not be possible to rebuild a depressed population of long-lived rockfish in ten years or less. The rebuilding program's restrictions and benefits must be equitably allocated among different parts of a fishery.


  7. Amending and Modifying FMPs: Fisheries change constantly. Fish populations may change with increasing or decreasing fishing effort or changes in ocean conditions. Commercial fishing effort may change with new technology or new markets. Broader economic trends can influence fish prices or the affordability of recreational fishing. Our understanding of fisheries also changes, as better monitoring or research provides new information. The ability to effectively implement fishery measures may change through better enforcement or new fishing gear. As a result, FMPs must be able to change.


    8. With this in mind, the MLMA requires that FMPs establish a procedure for regular review and amendment, if that is appropriate [7087(a)]. Because the review and amendment of an FMP is generally a lengthy process, the MLMA allows greater flexibility in responding to changes in a fishery by allowing an FMP to specify the kinds of regulations that may be changed without amending the FMP itself [7087(b)]. This process mirrors the federal government's process, where annual quotas or in-seasons adjustments in management measures may generally be made without resorting to the lengthy process of amending the FMP itself.


FMP MASTER PLAN

The white seabass fishery and the nearshore finfish fishery hardly exhaust California's commercial and recreational fisheries in need of comprehensive management under the MLMA. Because the preparation and adoption of FMPs requires considerable time and effort and there are a large number of fisheries, it is critical to set some priorities.

With this in mind, the Legislature directed the Department to submit to the Commission a master plan for the State's fisheries. The master plan must identify the resources needed to prepare and adopt FMPs and to list fisheries in order of priority for preparing fishery management plans [7073(a and b)]. In preparing the draft plan, the MLMA requires that the Department seek the help of fishermen, conservationists, marine scientists, and other people. The MLMA requires that the plan include the following elements [7073(b)]:

  • A list of the fisheries managed by the state;


  • A priority list for FMPs, with the highest priority going to those fisheries whose management is least consistent with the policies and requirements of the MLMA;


  • A description of current research and monitoring of each of the fisheries and any additional efforts needed to obtain essential fishery information for each fishery;


  • A process that ensures the opportunity for meaningful involvement of fishermen, conservationists, scientists, and others in the development of FMPs and research plans; and


  • A process for periodic review and amendment of the master plan.

Once the Department has completed its consultations with various interests and has prepared a draft plan, it must submit the plan to the Commission no later than September 1, 2001 [7073(a)]. The Commission must hold at least one public hearing on the draft plan, then may adopt the plan, or reject it entirely or in part [7073(c)]. The Commission must return any rejected part of the master plan to the Department, together with a written statement of the reasons for rejection [7073(c); 7075(a)]. The Department and the Commission then follow the same procedures as for the rejection and resubmission of a fishery management plan [7075(a)]. The Department must revise the rejected parts of the master plan and resubmit them to the Commission within 90 days.

Once the master plan is adopted, the MLMA requires the preparation of interim research protocols for at least the three highest priority fisheries [7074(a)]. The interim research protocol for a fishery remains effective until an FMP, which includes a research protocol, is prepared by the Department and adopted by the Commission. Like other such fisheries management documents, the interim research protocol and the FMP must be based partly on the involvement of interested people and peer review [7074(b) through (d)].


EMERGING FISHERIES

It may be difficult to imagine, but even after many centuries of fishing, new fisheries emerge. As species rise or decline in abundance, as general economic conditions and social tastes change, as new uses and markets are developed, as some fisheries become more restricted, species once scorned become valuable. Likewise, fishermen who find themselves increasingly restricted in their favorite fisheries may look to new fisheries to sustain themselves.

A key to sustainable fisheries is to ensure that new fisheries do not make the mistake of many old fisheries - growing more quickly than the knowledge and understanding necessary for managing them for sustainability. The Legislature recognized the special place of emerging fisheries in the MLMA by calling for the Commission to "encourage, manage, and regulate" emerging fisheries using the policies of the MLMA [7090(a)].

What is an emerging fishery? The Legislature identified several conditions for classifying a fishery as emerging and required the Commission to specify others. The Legislature specified that an emerging fishery cannot be an "established fishery"-that is, a fishery that has any of the following features [7090(b)(2)]:

  • A restricted access program,


  • Limitations on catch and fishing season under a federal fishery management plan,


  • A population estimate and annual catch quota,


  • Regulations that are considered by the Commission every two years, or


  • At least two management measures adopted by the Commission or the Legislature, including minimum or maximum size limits, seasons, time, gear, or area restrictions, and prohibitions on the sale or possession of fish.

The MLMA also requires the Commission to adopt a set of standards, which must be based on increasing landings or participants as well as the degree of regulation [7090(b)(1)]. The Director of the Department will then use these standards in determining whether or not a fishery is an emerging fishery.

The Department must monitor landings and other relevant factors and alert the Commission to new emerging fisheries [7090(c)]. Upon the Department's recommendation, the Commission may then either adopt regulations to limit the catch in the fishery, or direct the department to prepare an FMP and regulations for the fishery [7090(d)]. Whatever regulations the Commission issues remain effective for 12 months or until an FMP is prepared and adopted, if that takes less than 12 months.

In preparing an FMP for an emerging fishery, the Department must follow the MLMA's guidelines [7090(e)]. In addition, the FMP is to include an evaluation period of up to three years-a period that may be extended by the Commission. During this period, the FMP must use such measures as restricted landings or access, as well as time or area closures, to prevent excess fishing effort from entering the fishery [7090(e)(1)]. These measures must restrict effort in the fishery only to the level that the Department determines is necessary for evaluation of the fishery. The FMP must also contain a research plan outlining objectives, methods, and a timetable for evaluating the fishery [7090(e)(2)].

To support the research and management program, the Commission may impose a fee, which it may reduce in later years [7090(f)]. The Commission and Department must also consult with fishermen and others regarding alternative sources of funding.

As long as they do not conflict with the MLMA, other provisions in the Fish and Game Code may apply to emerging fisheries, particularly to the use of new types of fishing gear, or the use of existing gear in new areas or in new ways [8606(a)]. For example, earlier legislation requires that in order to use new fishing gear or existing gear in new areas or new ways, fishermen must obtain an "experimental fishing permit." The Commission may grant a permit for no more than one year at a time; a permit may be renewed up to three times, until the Legislature approves or disapproves of the use of the gear [8606(a)(2)]. In granting a permit, the Commission must set conditions to ensure proper use and protection of marine living resources and to minimize conflicts between user groups [8606(a)(1)]. The Commission is to revoke a permit if it is damaging marine living resources or is creating conflicts among user groups [8606(a)(d)].


EMERGENCY MANAGEMENT

The MLMA amended provisions regarding emergency management of fisheries. Under these provisions, the Director of the Department may close or restrict fishing for particular species if the best available scientific or other information indicates the fishing is unsustainable [7710(a)]. Before doing so, however, the Department must hold at least one public hearing in the area of the fishery.

Emergency regulations, which expire within 30 days unless the Commission or Director extend them, may be challenged by appealing to the Commission [7710.1]. The Director may suspend emergency restrictions within 30 days by issuing another emergency regulation under the Administrative Procedure Act [7710.5].


ANNUAL STATUS OF FISHERIES REPORT

Good fisheries managers periodically take stock of the effectiveness of their programs. Under the MLMA, there are two principal measures of effectiveness: sustainable fisheries, and fair and reasonable dealings with constituents [7056(m)]. To help ensure that the effectiveness of California's management programs is regularly evaluated, the MLMA requires that the Department prepare an annual report on the status of sport and commercial marine fisheries managed by the state [7065]. While later reports are to cover one-fourth of the state's fisheries, the first report is to cover all fisheries. The first report, which is due to the Commission by September 1, 2001, may be combined with the master plan described above [7065(a) and (c)]. The MLMA directs the Department to involve experts outside the Department, such as Sea Grant staff, other marine scientists, fishermen, and others, in preparing the report.

In assessing each fishery, an annual report must present information on landings, fishing effort and location, as well as other matters that the Department and Commission may decide are relevant [7065(b)]. Each annual report is to note if a fishery does not meet the sustainability policies of the MLMA [7066(b)]. If a fishery is classified as depressed, the report is to describe the causes, steps being taken to rebuild the fishery, and any recommendations for further action. The report must also describe any habitat problems and recommend solutions. An annual report must evaluate the effectiveness of the management system in achieving the sustainability goals of the MLMA and the fairness and reasonableness of its dealings with affected people [7066(c)]. The report may recommend changes in the overall management system itself.

Finally, at least every five years, each restricted access program is to be reviewed for consistency with the Commission's Policy on Restricted Access in the annual report. (See Appendix D)


SPECIFIC FISHERY MANAGEMENT PLANS

The preparation of FMPs is a complex process that requires considerable research and discussion before adoption. Recognizing the size of this task, the Legislature did not call for the adoption of FMPs for all California fisheries. Rather, the Legislature called initially for the adoption of two FMPs: one for the white seabass and one for nearshore finfish fisheries by January 1, 2002.

White Seabass Fishery
The dramatic decline of white seabass in southern California and increasing competition between recreational and commercial fishermen during the late 1980s and early 1990s triggered several responses. In 1990, for instance, California voters approved Proposition 132, which ended the use of gill nets within state waters South of Point Conception after January 1993. This greatly reduced the coastal set gillnet fishery for white seabass, reducing commercial landings by 70 percent.

In 1993, the Legislature directed the Department to prepare an FMP for both recreational and commercial white seabass fisheries by June 30, 1995. As it was, the Legislature had delegated management authority to the Commission only for recreational fisheries for white seabass. In preparing the white seabass FMP, the Department drew upon the knowledge and advice of the Director's Marine Resources Advisory Committee and a panel of scientists in a way that the Legislature cited as a model in the MLMA.

The FMP, which the Commission approved on March 8, 1996, proposed that the Legislature give the Commission general authority to adopt annual regulations for the commercial and recreational fisheries for white seabass. The Commission then forwarded the FMP to the Legislature. For a variety of reasons, however, the Legislature did not enact legislation that would authorize implementation of the FMP.

The MLMA clarifies the Commission's authority to manage both the recreational and commercial fisheries for white seabass under the FMP it adopted in 1996 [7071]. However, the legislation directs the Commission to bring the existing white seabass FMP into compliance with the MLMA's standards for FMPs by January 1, 2002.

Nearshore Finfish Fishery
Until relatively recently, finfish within a mile of land attracted little commercial fishing effort. This area was the domain of recreational fishermen, who fished with hooks and lines from small boats and kayaks or with spears while free-diving or scuba-diving. However, in the 1980s, commercial fishermen in southern California began targeting some nearshore species, especially California sheephead, for a growing market for live fish in restaurants. More recently, commercial fishermen in northern California, who were hard pressed by reductions in other fisheries, began fishing for nearshore rockfish to supply the live-fish market. Conflicts between recreational and commercial fishermen are growing, while some populations of finfish have been showing signs of decline.

At the same time that the Legislature was considering the Marine Life Management Act, it was also considering legislation to bring the nearshore finfish fishery under management. Late in the 1998 legislative session, the two bills were combined and the Nearshore Fisheries Management Act became part of the MLMA.

Under the MLMA, the Commission must adopt an FMP for the nearshore finfish fishery no later than January 1, 2002 [7072(d)]. In articulating its reasons for adopting these provisions, the Legislature noted increasing fishing pressure, the biology of many species that makes them vulnerable to overfishing, and the lack of information on many species [8585.5]. The Legislature also stated that "whenever feasible and practicable," the state aims to maintain commercial and recreational nearshore fisheries, and the employment that they support. For these reasons, the Legislature granted authority to the Commission to regulate commercial and recreational nearshore fisheries "to assure the sustainable populations of nearshore stocks."

The MLMA is quite specific about its scope in the nearshore fishery: fisheries for finfish that are found primarily within one nautical mile of land [8586(c)]. The Act goes on to list specific groups of fish as nearshore fish stocks, including certain species of rockfish, California sheephead, greenlings, cabezon, and scorpionfish. The Commission may also add "other species of finfish found primarily in rocky reef or kelp habitat in nearshore waters."

The MLMA gave the Commission broad authority to adopt regulations regarding nearshore fisheries prior to adoption of an FMP, based on the advice and recommendations of the Department [8587.1(a)]. Among possible management measures, the Legislature specifically cited requirements for landing information, logbooks, restricted access, limitations on time, area, type and amount of fishing gear, as well as catch quotas and size limits [8587.1(a)]. In developing and adopting such measures, the Department and Commission are to consult with fishermen and others interested in the fishery [8587.1(d)].

As a first step in bringing some controls to bear on the nearshore commercial fishery, the Legislature included size limits for nine species caught for sale. (The MLMA exempts trawl fisheries from these size limits.) The minimum size limits are as follows [8588]:
Black and yellow rockfish 10"
Gopher rockfish  10"
Kelp rockfish  10"
California scorpionfish or sculpin  10"
Greenlings (Genus Hexagrammos)  12"
China rockfish  12"
Grass rockfish  12"
California sheephead  12"
Cabezon  14"
The Commission may also change these size limits, set maximum size limits, or set size limits for additional species after at least one public hearing [8588(c); 8586(a)].

The MLMA requires commercial fishermen to obtain a nearshore fishery permit, which the Commission can suspend or revoke for violations [8587; 8589.5]. Funds generated by the purchase of the $125 permit are to be deposited in the Fish and Game Preservation Fund and used for preparing the nearshore FMP as well as other activities, including research on nearshore fish and their habitat, enforcement, direction of volunteer groups, presentations at conferences and educational institutions, and relevant publications [8589.7(a)].

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