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Reviewed By: DH CM CA

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CITY OF DANA POINT

AGENDA REPORT DATE: OCTOBER 12, 2009 TO: CITY MANAGER/CITY COUNCIL FROM: BRAD FOWLER, DIRECTOR OF PUBLIC WORKS AND ENGINEERING

SERVICES SUBJECT: MARINE LIFE PROTECTION ACT BRIEF RECOMMENDATION: That the City Council review the report and provide direction as desired. BACKGROUND: The Southern California regional process of the Marine Life Protection Act (AB 993 Shelley) Initiative has been under way now for a little over 12 months. A summary of the Marine Life Protection Act (MLPA) was provided in the Dana Point Agenda Report of 1/12/09, attached here for your review as Supporting Document A. City staff has been actively involved in following the process for creating Marine Protected Areas (MPAs) for the southern coast region (Santa Barbara to the Mexican border). This summary provides both what has occurred thus far in the State run process, the current status and next steps. Three “internal” proposals to create new MPAs along the Southern California coastline were developed by the Regional Stakeholder Group of the MLPA. This 64 member group was chosen by the MLPA staff to represent various groups that have knowledge and a stake in the oceans and local coastal ecosystems of Southern California. This group is comprised of individuals throughout the region with various backgrounds. From the immediate Orange County area, members include two city council members (Newport Beach and San Clemente), one city staff member (Laguna Beach), a local commercial fisherman (out of Dana Point Harbor), a commercial passenger fishing vessel captain (Newport Beach) and a member of a local nonprofit for the conservation of watersheds and the oceans (OC Coast Keepers). This 64 member group was subdivided into three work groups to develop proposals of Marine Protected Areas for the entire coast of Southern California. These subgroups (initially labeled as “gem” groups) developed proposals that were evaluated by scientists and Fish and Game staff to make sure they were meeting the goals and guidelines of the legislation of the MLPA.

10/12/09 Page 2 Item #13 As a refresher, there are currently three types of MPAs recognized by the Department of Fish and Game from most restrictive to least restrictive; a State Marine Reserve (complete no take of any species); a State Marine Park (no commercial take of species, but allowed recreational take) and a State Marine Conservation Area (defined take or restrictions on taking of some recreational and commercial species). There are currently three State Marine Conservation Areas (SMCAs) in the city limits of Dana Point which allow almost unrestricted take of all commercial and recreational species. In fact, with the exception of restricting tidepool takes, these SMCAs are essentially conservation areas is name only. The Regional Stakeholder Group was divided into the “gem” groups that were equally comprised of individuals who were interested in the conservation of marine resources (non-consumptive) and those that were interested in the harvest of marine resources (consumptive). Clearly there were individuals who do not meet these black and white characteristics and are interested in both conservation and consumption; however, the political nature of the process played out by labeling individuals into one of these two camps. The three gem groups developed MPA network proposals for the entire study region. During this time the MLPA process also allowed outside proposals to be accepted as long as they were developed for the entire coastline. Three outside or “external” proposals met this criteria; one developed by fishermen nicknamed “FIC/FIN” after the group (Fishermen Information Network) who put the proposal together, another developed by recreational fisherman from United Anglers and a third developed by a collaborative of conservation groups known as External C. There was considerable conflict within the working groups to meet a compromise for the network of MPAs. The negotiations in each of the gem groups stalled and efforts to meet the scientific guidelines outlined by the MLPA Master Plan were not being met. None of the six proposals (3 gem group proposals and 3 external proposals) met the scientific guidelines. A Blue Ribbon Task Force, consisting of policymakers, was formed by the California Secretary of Natural Resources to make a recommendation to the Fish and Game Commission of which Stakeholder proposals should be adopted They oversee the MLPA process and make the final recommendation to the Fish and Game Commission. It was decided by the Blue Ribbon Task Force to move forward with only three of the six proposals and shuffle the membership of the three gem groups in an effort to move forward. The membership of the new workgroups to develop proposals were then comprised of: a compromise group with individuals of varying backgrounds who were viewed as able to get along and make concessions to a common goal (proposal 1), a fishermen minded group (proposal 2) and a conservation minded group (proposal 3). These three work groups (now labeled 1, 2 and 3 respectively) came up with the final three proposals that are now being evaluated. These three proposals will go through scientific and Fish and Game feasibility analysis and then will be forwarded to the Blue Ribbon Task Force. At their upcoming October 20 – 22, 2009 meeting, the Blue Ribbon Task Force will make a decision to either forward one of the three proposals on to the Fish and Game Commission or they can take the best pieces of all three proposals and develop their own “Integrated Preferred Alternative” which they will recommend to the Commission for adoption.

10/12/09 Page 3 Item #13 During this whole process to date, City staff has attempted to develop a local consensus for MPAs that would work for our local interest groups (as outlined in the plan for the City Council Agenda report of 1/12/09). Early on City staff met with local constituents outside of the State meeting process. Initially meetings were held with City staff and local constituents individually to attempt to understand the concerns and desires of the local “big name” players who benefit from our local marine resources. The City initially met with representatives from State Parks, Dana Wharf Sportfishing, the Ocean Institute and the County of Orange. It was determined that the two groups with the biggest concerns with the process locally were the Ocean Institute and the Dana Wharf Sportfishing (where Dana Wharf has represented both local recreational and commercial fishing interests). At this point, City staff initiated a series of meetings between Dana Wharf and the Ocean Institute, with the City acting as a compromise builder to determine if a local solution might be developed. The goal was to develop a compromise solution for the waters directly off Dana Point, and to present it to the Regional Stakeholder Group for inclusion in the formal proposals. The area off Dana Point Headlands and Salt Creek are an area of interest due to the rich habitat and ecological communities found in these areas. Also as outlined in the previous staff report, the coastal waters of Dana Point are already covered by three fairly unrestrictive Marine Protected Areas (MPA), which during this process could be eliminated or fixed/expanded to meet the guidelines set by the MLPA. This area was of particular interest to both Dana Wharf Sportfishing and the Ocean Institute with one wanting to continue running half day fishing trips to the Headlands, while the other submitted proposals to better protect and further their research, education and monitoring agenda by developing programs and protocols that would suggest some portion of the Dana Point Headlands and the current MPA to become a more protective Marine Reserve, that would exclude some fishing from the immediate area. Local constituents and the City met and discussed if a compromise between the six proposals for Dana Point in the formal process would work to meet the desires of our local constituents, between having a State Marine Reserve (the Ocean Institute’s desire) and only retaining the tide pool protection as defined by the current SMCAs (as desired by Dana Wharf). To this end City staff was not able to mediate a local compromise. DISCUSSION:

New proposals from the Regional Stakeholder Group have been completed. The maps and justification for these boundaries were posted on the Department of Fish and Game website on 9/25/09 and the maps of the immediate area are attached for review in supporting documents B, C and D. City staff attended the last Regional Stakeholder Group meeting where the final three proposals were presented. As reported for our local area, no restrictive State Marine Reserves or Marine Parks which would prohibit commercial or recreational fishing were proposed within the Dana Point city limits (the area off shore from the southern city border to the northern city border). All three proposals have a Marine Reserve off of much of Laguna Beach, but each of the three

10/12/09 Page 4 Item #13 proposed MPA’s vary some in size and shape. Also, no MPA’s are proposed for San Clemente or Camp Pendleton, and the majority of local recreational fishing is done south of Dana Point (see supporting document E, showing the entire MPA networks for proposals 1, 2 and 3). That means that commercial and recreational fishing in all of Dana Point would be permitted perhaps with some minor restrictions in the SMCAs in all three proposals. The level of take (restriction) is still up for discussion, as is the exact geographic location off of Laguna Beach where a State Marine Reserve would begin and end. Locally the affects of these proposals are as follows. Compromise Proposal 1 has an SMCA that starts at the jetty and moves north toward Laguna Beach where it ends at Aliso Creek: allowed in this area is the recreational catch of all species except for California Sheephead and allows the commercial take of lobster, sea urchins and squid. Fishing Interest Proposal 2, supported by Dana Wharf, has an SMCA for Dana Point that starts at the jetty and runs to about Victoria Street in Laguna Beach and allows the take of all species while providing for some protection of tide pool creatures. Conservation Proposal 3 has an SMCA beginning at the jetty and going north to the City border between Dana Point and Laguna Beach and allows for recreational catch of all species except Sheephead, rockfish, sharks/rays and allows the commercial take of lobster, and urchin. Sheephead help keep urchins from taking over the reef and therefore promote kelp forest growth, an important habitat for numerous fish species. Rockfish are a small genus of fish and do not include the half day boat faire such as bass, cod, sculpin, etc. It should be noted that these proposals have differing impacts outside the City boundaries as the maps provided in supporting documents B, C, D and E depict. In general, as you might imagine, Proposal 2 has fewer marine reserves and restrictions, Proposal 3 greater marine reserves and restrictions and the compromise Proposal 1 is in the middle. During this time City staff also received updates and met with the Orange County Marine Protected Area Committee (OCMPAC) group, comprised of State Parks, City of Laguna Beach, City of Newport Beach, County of Orange, marine biological Consultants, Laguna Ocean Foundation and the Ocean Institute as well as a commercial lobster fishing representative. This group was also represented in the Regional Stakeholder Group by a staff person from the City of Laguna Beach. This staff person worked toward a compromise solution that would include an active management plan for Orange County coastal resources. This solution is included in the “conservation” minded group and they have asked for an MOU between the OCMPAC group and the Department of Fish and Game that local groups within Orange County would take some recognition and management over the local MPAs set up through this process (much like is already being done with our local tide pools). These three proposals are currently being evaluated and the next public meeting will be October 20-22, 2009 where the Blue Ribbon Task Force will decide which proposal will move forward to the Fish and Game Commission for CEQA review and finally some

10/12/09 Page 5 Item #13 months down the line, for adoption. The City of Laguna Beach has taken a stand that will support Proposal 3, including a larger reserve along their City shoreline. The Ocean Institute has not taken a position in support of one of the three proposals at this time. The Dana Point fishing interest, both recreational and commercial, has taken a position in support of Proposal 2. State Parks has maintained a stance that balances both recreational interests and environmental protection, supporting the maintenance of existing SMCAs in Dana Point. They have not taken a position on the three proposals at this time and will likely not support a specific proposal. Local environmental nonprofits groups such as Orange County Coast Keepers are supporting Proposal 3. Brad Gross at the Harbor would like the City to send a letter to the commission asking them to carefully consider the economic and public recreation impacts of any change in order to avoid serious impact on local commercial and recreational fishing industry as well as public recreational activities and associated businesses. Dana Point Staff has maintained a neutral position through this process while trying to ascertain the facts and facilitate compromise. At this point, due to the limited and minor differences between the three proposals and their limited impacts as they affect Dana Point, all of them would appear acceptable. Taken as a whole in South Orange County, they all protect our tidepools and improve marine protection without significant impact to recreational and commercial fishing interests of the Harbor or Dana Wharf Sportfishing. During this process it has been clear that there are a multitude of requirements and considerations from the scientific community, the Department of Fish and Game and the many other stakeholders which means our voice is relatively minor in the overall process. STAFF RECOMENDATION: The local community has long supported and benefited from the protection provided by the existing MPAs along our coast, specifically the Dana Point and Niguel State Marine Conservation Areas. Recent participation by City staff has further involved the City in the protection and management of our valuable coastal resources, especially the tidepool and nearshore habitats along the Headlands. While we recognize that a marine reserve in Dana Point could impact local recreational and commercial fishing interest, none of the proposals have an MPA that severally restricts fishing in Dana Point. All three proposals have a State Marine Conservation Area that helps protect our coastal resources and provides a level of protection similar to what is currently in place. It is important that we do not lose this protection and continue to support the endeavors that are currently in place for educating and managing our coastal resources. In our estimation at this point, taking a position supporting Proposal 2 or Proposal 3 would signal that the City is either pro-commercial or pro-conservation to the detriment of the other party. Since the differences amongst all proposals are relatively minor (for our immediate geography) either taking a position for compromise Proposal 1 or

10/12/09 Page 6 Item #13 remaining neutral on a specific proposal but supporting a State Marine Conservation Area in general, might be good options to consider. STRATEGIC PLAN IMPLEMENTATION: This action is in compliance with the Strategic Plan Initiative to restore and maintain the integrity of our ocean waters and beaches and to provide, acquire and retain open space, parks, recreational facilities, greenbelts and trails, and community serving property. FISCAL IMPACT: None ALTERNATIVE ACTIONS: 1. Other actions as determined by City Council. ACTION DOCUMENTS: None SUPPORTING DOCUMENTS: PAGE NO. A. City of Dana Point Agenda Report (1/12/09) MLPA Initiative Strategy..............7 B. MLPA Stakeholder Round 3 MPA “compromise” Proposal 1

Subregion 4 (Orange County)...................................................................18 C. MLPA Stakeholder Round 3 MPA “fishermen” Proposal 2

Subregion 4 (Orange County)...................................................................19 D. MLPA Stakeholder Round 3 MPA “conservation” Proposal 3

Subregion 4 (Orange County)...................................................................20 E. Maps of complete (entire southern California MPA network)

Proposals 1, 2, and 3................................................................................21

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SUPPORTING DOCUMENT A - City of Dana Point Agenda Report (1/12/09)

MLPA Initiative Strategy

CITY OF DANA POINT

AGENDA REPORT DATE: JANUARY 12, 2009 TO: CITY MANAGER/CITY COUNCIL FROM: BRAD FOWLER, DIRECTOR OF PUBLIC WORKS AND ENGINEERING

SERVICES SUBJECT: CALIFORNIA MARINE LIFE PROTECTION ACT INITIATIVE

STRATEGY RECOMMENDATION: That the City Council review and approve subject strategy. BACKGROUND: In 1999 the California State legislature approved and the governor signed the Marine Life Protection Act (AB 993). The law instructs the California Department of Fish and Game to prepare a Master Plan that will guide the adoption and implementation of a network of Marine Protected Areas in California State waters (high tide mark to three miles offshore). The State recognizes the intrinsic value of healthy ocean ecosystems and wants to conserve these systems for future generations. The primary goals of the Marine Life Protection Act (MLPA) are to protect marine life, marine ecosystems and marine natural heritage, as well as to improve the recreational, educational and research opportunities provided by marine ecosystems.

Two previous attempts to implement the law failed due to a lack of public participation and a lack of funding. The current attempt to implement the law was endorsed by Governor Schwarzenegger in 2004 and has been made possible by a public/private partnership between the California Natural Resources Agency, the Department of Fish and Game and the Resource Legacy Fund Foundation (RLFF). The Resource Legacy Fund Foundation has funded the creation, adoption and implementation of the MLPA Initiative guided by the MLPA Master Plan. The Master Plan calls for a transparent, science based, but stakeholder driven process of designing a network of Marine Protected Areas (MPAs). The MLPA Initiative process has divided the State into five different working regions for Marine Protected Area design consideration. Each region undergoes the “process” individually until a marine

10/12/09 Page 8 Item #13 protected area design proposal is adopted for that region by the Fish and Game Commission. During the process all meetings and MLPA documents will be open to the public and the public is encouraged to participate and comment. Two regions have completed the process; the north central coast and central coast areas of the State. The south coast regional process (Santa Barbara to the Mexican Border) began in the June of 2008 with a series of public workshops and the nomination of members to the Blue Ribbon Task Force (BRTF), Science Advisory Team (SAT) and the Regional Stakeholder Group (RSG). The Regional Stakeholder Group (RSG) includes members from Santa Barbara to San Diego and the offshore Channel Islands, has been charged with the design and placement of Marine Protected Areas. These stakeholders will meet an estimated 8 –12 times over a timeframe of 18 months to develop several proposed packages as possible Marine Protected Area networks for the south coast region. The first step in the Marine Protected Area designation process is to evaluate the existing MPAs and determine if they meet the Marine Life Protection Act goals. If they do not meet the MLPA goals and adopted scientific guidelines, existing Marine Protected Areas could be consolidated, expanded, abolished, or reclassified. The state currently recognizes 3 types of Marine Protected Areas (MPAs);

! State Marine Reserve - “no take” (no marine life removal), ! State Marine Park – limited recreational take, and ! State Marine Conservation Area – defined commercial and recreational take.

The process of determining Marine Protected Area designations and locations is stakeholder driven, but also based upon the latest science. The Regional Stakeholder Group will be given a set of guidelines and a regional profile to create the Marine Protected Area network. A team of scientist (Science Advisory Team) has been nominated to advise the stakeholders and review all proposed packages to determine how each proposed package meets the defined science guidelines. The regional profile for the south coast region includes detailed scientific information about the area between Point Conception and the Mexican Border; including all of the offshore Channel Islands. The scientific guidelines suggest that several “no take” Marine Reserves be designated within each biogeographical area. The guidelines also make suggestions as to the size and spacing of all Marine Protected Areas. The size and spacing will be determined by the larval distribution and adult movements of critical species in the south coast region.

The placement of Marine Protected Areas is the first step of the process in a region. After the California Fish and Game Commission adopt one of the proposed packages, the package must go through regulatory analyses (including CEQA), public testimony and action by the Commission before it is implemented. The Master Plan recognizes that implementation of these Marine Protected Areas will require education, enforcement, continued monitoring, research, adaptive management and most importantly funding. Although funding mechanisms are suggested in the Master Plan and the Resource Legacy Fund Foundation is committed to this project, it is unclear as to how successful the Department of Fish and Game will be in the implementation and management of the statewide Marine Protected Area network. It has been suggested

10/12/09 Page 9 Item #13 by current Department of Fish and Game staff that a memorandum of understanding (MOU) modeled after MOUs between the California Department of Fish and Game and the Federal National Marine Sanctuaries program, could be enacted in Orange County between the Department of Fish and Game and the Orange County Marine Protected Area Council (OCMPAC) for localized cooperative management. DISCUSSION:

The City of Dana Point will have to comply with the outcomes of the south coast regional MLPA process as part of a larger effort for local coastal resource management. There is concern about the potential adverse socioeconomic impacts of “no take” Marine Reserves on our local economy, especially on both the commercial and the recreational fishing industry, as well as concern for the conservation of our marine resources for future generations to enjoy.

Dana Point is currently protected by three State Marine Conservation Areas, which span most of the shoreline length of the City. The City has recently taken an active role in the conservation and stewardship of these areas with Jeff Rosaler’s docent program for the intertidal (tidepool) areas, where “take” is currently prohibited. These Conservation Areas were historically enacted to protect the rich intertidal ecosystems along the Dana Point coastline, while allowing defined commercial and recreational “take” (e.g. offshore fishing and lobstering is allowed). The coastal waters off Dana Point have a high likelihood of remaining Marine Protected Areas through the MLPA process. A possible outcome of the MLPA is that these currently protected areas might remain as State Marine Conservation Areas. Under this scenario the intertidal life would continue to be protected and there would be no additional effects to local fishermen. However, it is more likely that these areas will be expanded and their status designated to become more restrictive to commercial and recreational interest. It is expected that the area surrounding and offshore of the Headlands will be considered as a candidate for a “no take” Marine Reserve. In a Marine Reserve there is “no take” for commercial or recreational use, i.e. no fishing, lobstering, etc. Staff believes that a local compromise will be necessary for Marine Protected Area placement within City boundaries in order to recognize the interests of all of our local stakeholders, the recreational and commercial fishermen as well as the interests of education groups, non-consumptive recreational users, scientists, and conservationists. Staff recommends that we initiate a dialog with those who will be most affected by the outcomes of this process, to discuss a compromise strategy with that works for local stakeholders at a local level. Without proactive leadership in submitting a local Dana Point stakeholder driven proposal, it is feared that a broad brush bureaucratic one size fits all decision may be made that will not recognize all of our local stakeholder’s interests. Staff believes a pragmatic and agreeable solution can be developed and that the MLPA Regional Stakeholder Group will respect a well developed local proposal for Dana Point. Once a compromise position is developed it is recommended that staff introduce the position to the Marine Life Protection Act Initiative process.

10/12/09 Page 10 Item #13 NOTIFICATION/FOLLOW-UP: Individual meetings with local stakeholders from the sport fishing community, the commercial fishing industry, the OC Dana Point Harbor, California State Parks, and the Ocean Institute. STRATEGIC PLAN IMPLEMENTATION: This action is in compliance with the Strategic Plan Initiative to restore and maintain the integrity of our ocean waters and beaches and to provide, acquire and retain open space, parks, recreational facilities, greenbelts and trails, and community serving property. FISCAL IMPACT: None ALTERNATIVE ACTIONS: 2. Other actions as determined by City Council. ACTION DOCUMENTS: None SUPPORTING DOCUMENTS: PAGE NO. A. MLPA South Coast Study Region Informational Brochure……………...…. 13 B. MLPA Central Coast completed MPA Network Brochure………………….. 14 C. Marine Protected Area Definitions and Maps of Current Local MPAs……. 15

10/12/09 Page 11 Item #13 SUPPORTING DOCUMENT A – MLPA South Coast Brochure

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10/12/09 Page 13 Item #13 SUPPORTING DOCUMENT B – MLPA Central Coast Completed MPA Network Brochure

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10/12/09 Page 15 Item #13 SUPPORTING DOCUMENT C – Marine Protected Area Definitions and Maps of Current Local MPAs Marine Protected Area (MPA) Named discrete geographic marine area seaward of the mean high tide line that has been designated by law or administrative action to protect or conserve marine life and habitat. The State of California recognizes three types of MPAs to protect living resources: State Marine Reserve (SMR): The most restrictive classification of MPA, theses is no-take areas (all extractive activities are prohibited). State Marine Park (SMP): May allow recreational take, or limit it in some way, but does not allow commercial take. State Marine Conservation Area (SMCA): May limit recreational and/or commercial take to protect a specific resource or habitat. Current MPAs in the City of Dana Point Dana Point Marine Conservation Area This area was originally designated as a marine life refuge. A specific purpose for the Dana Point Marine Life Refuge was the complete protection from take of intertidal zone in 1993 to provide improved opportunities for educational and research activities associated with the adjacent Orange County Ocean Institute (DFG 2005).

10/12/09 Page 16 Item #13 Niguel State Marine Conservation Area This area was originally designated as a marine life refuge. Although no specific objectives were provided for the marine life refuge designation, Fish and Game Code Section 10500 states that “Except under specific permit or authorization, it is unlawful to take or possess any invertebrate or specimen of plant life in a marine life refuge.” Established in the late 1960’s and 1970’s to primarily protect intertidal organisms from collecting by the general public and large educational groups (DFG 2005).

10/12/09 Page 17 Item #13 Doheny Beach and Doheny State Marine Conservation Areas This area was originally designated as a marine life refuge. Although no specific objectives were provided for the marine life refuge designation, Fish and Game Code Section 10500 states that “Except under specific permit or authorization, it is unlawful to take or possess any invertebrate or specimen of plant life in a marine life refuge.” Established in the late 1960’s and 1970’s to primarily protect intertidal organisms from collecting by the general public and large educational groups (DFG 2005).

10/12/09 Page 18 Item #13 SUPPORTING DOCUMENT B – MLPA Stakeholder Round 3 MPA “compromise” Proposal 1 Subregion 4 (Orange County)

10/12/09 Page 19 Item #13 SUPPORTING DOCUMENT C – MLPA Stakeholder Round 3 MPA “fishermen” Proposal 2 Subregion 4 (Orange County)

10/12/09 Page 20 Item #13 SUPPORTING DOCUMENT D – MLPA Stakeholder Round 3 MPA “conservation” Proposal 3 Subregion 4 (Orange County)

10/12/09 Page 21 Item #13 SUPPORTING DOCUMENT E – Maps of complete (entire Southern California MPA Network) Proposals 1, 2, and 3

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