Existing law establishes the Department of Fish and Wildlife and sets forth the powers and duties of the department with regard to the implementation and administration of, among other things, projects and programs to protect wildlife and wildlife habitat in the state.

This bill would require the department, on or before December 31, 2019, to adopt regulations to minimize the risk of Phytophthora pathogens in plant materials used for habitat restoration projects authorized, funded, or required by the state.

Existing law establishes the Department of Fish and Wildlife and sets forth the powers and duties of the department with regard to the implementation and administration of, among other things, projects and programs to protect wildlife and wildlife habitat in the state.

This bill would require the department, on or before December 31, 2019, to adopt regulations to minimize the risk of Phytophthora pathogens in plant materials used for habitat restoration projects authorized, funded, or required by the state.

SENATE COMMITTEE ON

Senator Ricardo Lara, Chair

2017 - 2018 Regular Session

SB 287 (Dodd) - Habitat restoration: invasive species: Phytophthora pathogens

This bill meets the criteria for referral to the Suspense File.

Bill Summary:

SB 287 requires the California Department of Fish and Wildlife (CDFW), on or before December 31, 2019, to adopt best management practices that minimize the risk of Phytophthora pathogens in plant material used for habitat restoration projects authorized, funded, or required by the state. The bill also specifies consultation, public comment, and reporting requirements.

Fiscal Impact:

• Significant, unknown costs (Fish and Game Preservation Fund), for the CDFW to develop best practices, consult with relevant agencies, and hold public meetings. (See staff comments)
• Minor costs (various special funds and General Fund) to various state entities for consultation.

Background:

1. Existing law establishes the CDFW and sets forth its powers and duties to protect wildlife and wildlife habitat in the state. The CDFW and other state agencies such as the regional water boards and local governments frequently require mitigation for projects that have environmental impacts.

Phytophthora are microscopic plant pathogens that can severely damage or kill a wide variety of agricultural, ornamental, and forest plants, including native vegetation. One species is particularly well-known in California as the cause of sudden oak death, which has devastated oak woodlands in several California counties.

Proposed Law:

This bill requires the CDFW to:

1. On or before December 31, 2019, to adopt best management practices that minimize the risk of Phytophthora pathogens in plant material used for habitat restoration projects authorized, funded, or required by the State and clean phytosanitary standards.
2. Consult with regional water boards, other state departments with responsibilities related to habitat restoration projects, and plant pathologists with expertise in Phytophthora diseases.
3. Hold three public meetings prior to adoption of the best management practices; and
4. Develop and submit a report to the Legislature and on or before December 31, 2018.

Staff Comments:

Implementation Cost. Staff notes that the CDFW has indicated minor and absorbable costs to implement this bill. However, staff notes an average cost of at least $50,000 to adopt regulations and $5,000 per public meeting (excluding staff time to plan and conduct the meeting, staff time to incorporate comments, meeting materials, travel costs, and incidentals). Given that this bill deals with a space that CDFW does not currently occupy, the development of the best practices related to Phytophthora pathogens in plant material will likely require a significant redirection of resources.

The Fish and Game Preservation Fund (FGPF). This bill would result in a cost to the FGPF. According to the Legislative Analyst Office (LAO), expenditures from the fund currently exceed annual revenues by more than $20 million. To address this deficit, the Governor’s proposed 2017 budget includes an increase in commercial fishing landing fees and a one‑time redirection of $10.6 million from the Lifetime License Account. According to the LAO, the proposed budgetary actions will sustain the current level of service, but more permanent measures must be implemented in 2018‑19 to address the deficit. The LAO also expressed concern about the increase to landing fees being too large for the industry to sustain, and recommended a lower increase in fees. If this recommendation is adopted by the Legislature, the fund may not be brought into balance.

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SENATE COMMITTEE ON NATURAL RESOURCES AND WATER

Senator Robert Hertzberg, Chair

2017 - 2018 Regular

Bill No: SB 287 Hearing Date: March 28, 2017

Subject: Habitat restoration: invasive species: Phytophthora pathogens

BACKGROUND AND EXISTING LAW

1. Establishes the California Department of Fish and Wildlife (CDFW) and sets forth its powers and duties to protect wildlife and wildlife habitat in the state. CDFW and other state agencies such as the regional water boards, local governments and others, frequently require mitigation for projects that have environmental impacts and the mitigation in many circumstances occurs on wildlife or habitat lands.
2. Phytophthora are microscopic plant pathogens that can severely damage or kill a wide variety of agricultural, ornamental, and forest plants, including native vegetation. One species is particularly well-known in California as the cause of sudden oak death, which has devastated oak woodlands in several California counties. The focus of this measure, however, is on those species that infest commercial horticultural plant nurseries.
3. Does not directly address the use of planting material infected with Phytophthora or other pathogens in restoration plantings authorized, mandated, or funded by the state.

PROPOSED LAW

This bill requires CDFW, on or before 12/31/19 to adopt best management practices that minimize the risk of Phytophthora pathogens in plant material used for habitat restoration projects authorized, funded, or required by the state and clean phytosanitary standards.

CDFW would consult with regional water boards, other state departments with responsibilities related to habitat restoration projects, and plant pathologists with expertise in Phytophthora diseases.

CDFW would also be required to hold three public meetings prior to adoption of the best management practices and the bill contains a reporting requirement to report back to the Legislature on or before 12/31/18.

ARGUMENTS IN SUPPORT

According to the author, more than 50 Phytophthora species, including species detected for the first time in the U.S. and California, and new hybrid species, have been identified in habitat restoration plantings and native plant nurseries in California.

The author further notes that many native plants have little or no resistance to these introduced pathogens which can persist in the soil and proliferate on the plants they infect, causing irreparable damage to sensitive habitats. Habitat restoration projects are frequently required as mitigation for projects. Phytophthora is a concern in restoration activities because nursery plants are placed into a wildland habitat providing a direct pathway for pathogen introduction and spread. Once these pathogens get into the wild, they are very difficult, if not impossible, to eradicate.

State agencies promote the use of nursery stock in wildlands through their vegetative cover standards for habitat restoration projects. As the California Invasive Plant Council notes, agencies such as CDFW, the Wildlife Conservation Board, California State Parks, and other agencies need to be able to rely on safe stock from native plant nurseries when they undertake restoration projects. Other supporters point out that the best defense against Phytophthora pathogens becoming established in wildlands and other areas is to prevent their inadvertent introduction through infested nursery stock.

Many of the supporters also point out that the death of plants in restoration projects increases the long-term costs of restoring these habitats, adds future remediation costs to the public, and places adjacent native vegetation at risk of infection.

ARGUMENTS IN OPPOSITION

The California Association of Nurseries and Garden Centers raises two concerns: (1) It views the involvement of CDFW as duplicative of regulations that involve the licensure of nurseries undertaken by the California Department of Food and Agriculture (CDFA); and (2) it argues the bill is misdirected by focusing on nursery stock, and not the conditions into which nursery plants are planted.

COMMENTS

Staff suggests that the licensing and annual inspections of nurseries conducted by the CDFA are not focused on the problem identified by this bill. In fact, it is safe to say that contaminated nursery stock has been used in restoration plantings that was obtained from nurseries that are in compliance with the annual inspection and certification process of CDFA and its related regulations.

SUPPORT

California Forest Pest Council

California Invasive Plant Council

California Native Plant Society—Willis Jepson Chapter

MidPeninsula Regional Open Space District

Phytophthoras in Native Habitats Working Group

Phytosphere Research

Sierra Club California

Watershed Nursery

Matteo Garbelotto, Director Forest Pathology Lab, UC Berkeley Extension

OPPOSITION

California Association of Nurseries and Garden Centers

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