California Aquaculture Association

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June 23, 2009
President Cindy Gustafson
California Fish and Game Commission
1416 Ninth Street
Sacramento, California 95814
Dear Ms. Gustafson:
The California Aquaculture Association (CAA) writes to express our interest and concern regarding proposed revisions of Section 671 in Title 14 of the California Code of Regulations, now scheduled for a discussion hearing at the June 25 meeting of the Commission in Woodland.
We are pleased that the Department is suggesting a (dramatic) change in its policy from a complete prohibition of barramundi aquaculture in California to allowing barramundi farming under appropriate conditions. We feel that the proposed 671 revisions may provide a welcome opportunity and a precedent for aquaculture production of non-native species in California. With that said, the Department’s dramatic reversal in policy and the process used to get us to this point has been perplexing and therefore concerning, relative to immediate and future actions. The comments and recommendations we provide here are intended to improve the proposed regulation changes for barramundi and the process used in the future for any new species being considered for listing under Section 671.
CAA’s overarching premise is that California’s umbrella of regulations must allow its aquaculture producers a reasonable opportunity to work. This premise is paramount to our industry’s survival. Aquaculture production in California is presently contracting, at least in part, because the sum of all the state, local, and federal regulations makes it increasingly difficult to compete and succeed. Anyone familiar with the barramundi issue at hand will appreciate our high level of concern with the current regulatory process (for those not familiar with the issue, we provide a brief summary in Appendix I). If the present 671 revisions are adopted, live fish will be imported and sold live in California markets years before they can be brought to market by lawful California producers, including one producer who applied for a permit to farm barramundi more than two years ago! We hope to avoid such inequitable situations in the future.
Embodied in CAA’s premise are the following specific concerns related to the proposed changes to 671 regulations.
1. The regulatory process must be clearly defined, especially as it evolves.
It appears that the status of restricted species in California has changed dramatically to include any and all exotic and non-native species that are not established in California. Rather than its original focus towards truly ‘noxious’ and ‘invasive’ species, 671 now uses the term ‘detrimental’ and evidently any species not established in California fulfills that definition. The terms ‘non-native’ and ‘detrimental’ are neither equivalent nor synonymous. We recommend that the 671 language be revised to reflect the actual policy.
2. The basis for regulation must be supported and documented by the best available science and the process must be more transparent.
The process of establishing regulations for the culture and importation of barramundi has been plagued by poor communication, and a lack of science and transparency in
decision making. The lack of documented scientific evidence for decision making is the most problematic matter. Without supporting scientific documentation, it is difficult to comprehend the Department’s dramatic change in position related to the farming and importation of live barramundi. What has changed? One must logically assume that the initial review of scientific information was flawed or some new, very important information has been made available. Without appropriate documentation, interested parties are left confused and potentially suspicious. We recommend that the Department provide a written biological opinion document for barramundi and any new species proposed for listing under 671.
To facilitate this recommendation, we have provided a biological synopsis in Appendix II. This synopsis focuses on the risk of barramundi establishing anywhere in California based on the biology of the species. We have also provided a detailed assessment of the information provided in FishBase because it is our understanding that the Department has used FishBase as a primary reference in its decision making process.
3. Regulatory burdens must be equitable within the state to the fullest extent practicable.
As written, we feel that the 671 regulations are unnecessarily biased toward production and sales of barramundi in Northern California. Firstly, as evident from the biological information we provide in Appendix II, the risk of barramundi escaping and establishing breeding populations in California is negligible. Appropriate water temperatures do not occur in the north or south of the state. Even if water temperatures were warm enough in the south, permanent river systems required for reproduction do not exist. We recommend that markets for barramundi be opened state-wide.
Secondly, two separate inspection fee schedules are proposed for northern and southern California. We believe this is inequitable because operators have no control over their relative distance from Sacramento and they should not be penalized for living in the south. We recommend either striking the fee provision or creating a statewide flat fee.
4. Regulatory requirements must be extended to out-of-state producers to the fullest extent practicable.
California’s regulatory structure is among the most rigorous in the nation. Ensuring that California safe-guards are met by imported aquaculture products should be a clear component of the regulatory process. In addition to the environmental implications to the state, a balanced playing field is a necessity for California producers to remain competitive. It is unclear in the proposed regulations how this is being addressed. For example, relative to inspections of imported barramundi or barramundi facilities, there is no explicit language. The regulations state that the Department “may” inspect the imported fish, but there is no mandatory requirement for inspection and certification of fish or facilities. We recommend that the regulations clearly identify the key elements of the Department’s risk management plan for barramundi and how they are being addressed in and out of state.
In closing, we urge the Commission to consider the recommendations we have offered here. Moreover, we offer our resources and counsel to the Commission as it continues the revision process from this point. If we are included in the process from an early point, we can provide valuable information about the impact of proposed changes from those most intimately acquainted with aquaculture in California.
Sincerely,
_________________________________ _______________________________
Mark Drawbridge, President Anthonie M. Schuur, Vice President
California Aquaculture Association CAA Government Affairs
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APPENDIX I - RECENT BACKGROUND ON BARRAMUNDI AND 671 REGULATIONS
Much of our present apprehension originates from a series of events conducted in an atmosphere of misunderstanding and very poor communication between the aquaculture industry and the Department during 2007-2008, which was a period when the position of Aquaculture Coordinator was vacant.
A brief review of those events from this perspective includes:
1. Late in 2006, Blue Beyond Fisheries represented by Mark Eglington, prepared and submitted to the Department, application for a permit to grow barramundi, which at that time was not a restricted species. His application was opposed by the Department and rejected by action of the Commission on February 1, 2007, on the grounds that barramundi is a potentially invasive species in California and that it that might transmit dangerous viral disease to native species. Mr. Eglington refuted these objections at the time without effect.
2. Within the next few months the Department recommended to the Commission the addition of barramundi to the restricted species list because of its invasive potential. At a discussion hearing before the Commission on October 12, Mr. Rogers, President of the Commission at that time, instructed the Department to continue gathering information on barramundi.
3. During and prior to the Commission meeting on November 1, 2007, Mr. Eglington and the CAA presented testimony before the Commission, wrote letters, and submitted supporting materials sharply disagreeing with the Department’s opinion supporting restricted species status.
4. Despite our efforts to avert the new listing, the Commission adopted the Department’s recommendation. However, the Commission did respond to the aquaculture position with a compromise that we readily endorsed. It instructed the Department to review and revise Section 671 with the purpose of providing regulations that would reasonably allow the commercial culture of a restricted species such as barramundi. That instruction culminates with the present proposed 671 revisions that are to be discussed on June 25 at the Commission Meeting in Woodland.
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APPENDIX – II Barramundi Life Cycle and Reproduction The Department’s evaluation of barramundi as an invasive threat lacks a scientific basis and is not supported by any written documentation. The Department’s evaluation overlooks substantial evidence that the probability of barramundi reproduction and subsequent survival in California waters is negligibly low. Once again, we submit the following information from well-documented sources:
1. Barramundi spawn in seawater of 26-34C, with the range of 28-30C being best. The salinity range for spawning is 28-36ppt with 30-32 being best (Tucker, 20061). These conditions do not exist along the coast of southern California.
2. Similarly, barramundi larvae require temperatures of 26-30C, with the range of 27-28C being best. The salinity range for larvae is 20-35ppt with 25-31 being best (Tucker, 2006). These conditions do not exist along the coast of southern California.
3. Barramundi is a diadromus species whose life cycle includes protandrous hermaphrodism, whereby young male fish live in fresh water for five to six years before returning to seawater estuaries where they change into females that breed with males. There are no permanent river estuaries (that are essential to their life cycle) in southern California.
FishBase Barramundi Information We recently learned that the Department cites FishBase (a global fish information source sponsored by the FAO) materials as justification for the unacceptable risk of live barramundi sales in southern California. Ironically, on close inspection we find the FishBase website reference contradicts the Department’s assertion and fails to provide any grounds for an unacceptable risk. The FishBase ‘satisfactory habitat’ map is an attempt to correlate a few physical criteria for the typical barramundi habitat that are limited to average sea surface temperature, salinity, depth, primary productivity, distance from land, and percentage ice cover from 152 typical barramundi habitats within their natural range. Note that none of the biological factors that characterize barramundi are among these variables. Values from these 152 sites are compared to those from more than six thousand around the world and assigned a probability of 0.01 to 1.00. The probabilities assigned to the ten sites nearest southern California waters are 0.01 to 0.03. None of the 6,513 data comparison points are within 150 miles of the California coast. The New Jersey coast has a much higher probability for satisfactory barramundi habitat than southern California. It should also be pointed out that the nearest of the 152 sample sites is about 93 degrees of longitude or about 6,000 miles from California. Certainly FishBase maps have a useful purpose. One such purpose might be to identify coastal waters with very high probabilities that would be suitable for barramundi aquaculture. California would not rank among even the poorest marginal selections. Another purpose might be to determine the probability that a barramundi might survive if it were accidentally released into the ‘suitable’ habitat. In the small range on the map that reaches the southern extreme coast of California, it would be very poor. California’s cold coastal currents guarantee that spring-winter-late fall temperatures are far below barramundi’s critical low temperature (15 C) and that any opportunity to become established or even survive more than a brief period, in California waters is nil. FishBase maps indicate that the Department’s assertion of risk that barramundi might prove to be an invasive species is far less plausible than the opposite opinion. Sales of the fish to terminal markets in southern California present a very small risk that a barramundi might be carried to natural waters by an illegal conspirator seeking to establish the fish in California. The chance that fish would survive, much less reproduce, is essentially non-existent.
1 John W. Tucker, Jr., D. John Russell, and Michael A. Rimmer. (2006). Barramundi culture. In “Aquaculture in the 21st Century”. Edited by Anita M. Kelly and Jeffrey Silverstein. A publication of the American Fisheries Society, Symposium 46, 643 pages.