Improving Water Quality and Ecosystem Health in California's Marine Managed Areas
| Date | 01 September 2018 |
| Author | Elizabeth Taylor, Stephanie Talavera, and Alejandro E. Camacho |
48 ELR 10818 ENVIRONMENTAL LAW REPORTER 9-2018
Improving Water
Quality and
Ecosystem Health
in California’s
Marine Managed
Areas
by Elizabeth Taylor, Stephanie Talavera,
and Alejandro E. Camacho
Elizabeth Taylor is a Sta Attorney for the Center for Land,
Environment, and Natural Resources (CLEANR) at the
University of California, Irvine School of Law. Stephanie
Talavera is an Associate Attorney at Newmeyer & Dillion, LLP,
and a former Fellow at CLEANR. Alejandro E. Camacho is
a Professor of Law and the Faculty Director of CLEANR.
Summary
California’s marine conservation regime is a model for the
world, and includes a statewide network of marine pro-
tected areas and other marine managed areas (MMAs).
But management authority remains distributed across
multiple government entities, potentially compromising
ecosystem-based approaches and adaptive management.
e University of California, Irvine School of Law's Cen-
ter for Land, Environment, and Natural Resources con-
ducted extensive interviews and roundtable discussions to
explore the current framework for managing coastal water
quality and monitoring in the context of MMAs. is
Article synthesizes the results of those discussions, and
identies challenges to and opportunities for enhancing
MMAs through California’s existing water quality and
coastal protection programs, coordinating water quality
monitoring and data access, and osetting resource con-
straints on programs that protect marine water quality.
California’s marine conservation regime, including
those areas protected through t he state Marine
Life Protection Act (MLPA)1 and Mari ne Man-
aged Areas Improvement Act (MMA IA),2 is one of the
most advanced in the world.3 ese Acts, in addition to
the California Ocea n Resources Stewardship Act4 and the
California Ocea n Protection Act (COPA),5 were integral in
paving the way for a partnership-based approach to man-
aging C alifor nia’s marine resources. Nonetheless, marine
resource management authority in California remains dis-
tributed across multiple government entities with overlap-
ping jurisdiction and diering ma ndates.6 is regulatory
fragmentation may compromise marine resource conser-
vation approaches such as ecosystem-based mana gement,7
and impair each agency’s ability to adapt and learn.8
Decentralized and overlapping regulatory systems can a lso
result in signicant impediments to addressing overarch-
ing issues, such as climate change.9
A wide range of resource managers and stakeholders
acknowledge these challenges and are pursuing more inte-
grated, ecosystem-based approaches to promote marine
ecosystem health and ma nage conicting coastal uses.10
e unique role of the Ocean Protection Council (OPC)
Authors’ Note: is Article is adapted from an April 2018 report
by CLEANR, available on its website at https://www.law.uci.edu/
centers/cleanr/publications.html.
1. C. F G C §§2850-2863.
2. C. P. R. C §§36600-36900.
3. See J M. W S L. Y, M E-
B M P 76-78 (2017); Jason Patlis et al., e
National Marine Sanctuary System: e Once and Future Promise of Compre-
hensive Ocean Governance, 44 ELR 10932, 10956 (Nov. 2014) (noting that
the MLPA Initiative serves as an example of a process that integrates best
available science, stakeholder interests, and private funding to protect valu-
able ecological and economic resources); Mary M. Gleason et al., Designing
a Network of Marine Protected Areas in California: Achievements, Costs, Les-
sons Learned, and Challenges Ahead, 74 O C M. 90, 91
(2013).
4. C. P. R. C §§36970-36995.
5. Id. §§35500-35650.
6. D C. B ., A-B M M R-
: A C A N M S A
O F S L A 79 (2013); Deborah
A. Sivas & Margaret R. Caldwell, A New Vision for California Ocean Gover-
nance: Comprehensive Ecosystem-Based Marine Zoning, 27 S. E. L.J.
209, 228 (2009) (attributing past marine management failures to Califor-
nia’s highly fractured system of ocean and coastal governance).
7. Sivas & Caldwell, supra note 6, at 228-30 (noting that California’s piece-
meal regulatory structure impedes the state’s ability to manage for ecosystem
health and long-term sustainability).
8. Alejandro E. Camacho, Adapting Governance to Climate Change: Manag-
ing Uncertainty rough a Learning Infrastructure, 59 E L.J. 1, 25-27
(2009).
9. Id. at 26-32 (discussing the poor adaptive capacity of fragmented regula-
tory systems).
10. See Evan Fox et al., Addressing Policy Issues in a Stakeholder-Based and Sci-
ence-Driven Marine Protected Area Network Planning Process, 74 O
C M. 34, 37-38 (2013); see also W C RPB C
(2016), available at http://www.westcoastmarineplanning.org/documents/;
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
9-2018 NEWS & ANALYSIS 48 ELR 10819
under California law,11 the MLPA Implementation Memo-
randum of Under standing (MOU),12 the Ma rine Protected
Areas (MPAs) Statewide L eadership Team,13 recent updates
to the California Ocea n Plan,14 and investments in inte-
grated regional water management (IRWM)15 exemplify
these eorts to break down regu latory silos and coordinate
across ag encies and legal aut horities.
e University of California, Irv ine (UCI) School of Law
Center for Land, Environment, and Natural Resources, in
partnership with UCI OCEANS, convened two dialogues
with policymakers, managers, scientists, and sta keholders
involved in marine water quality protection or implemen-
tation of California’s marine managed area s (MMAs)—
a June 2016 scoping session and a January 2017 plenary
roundtable. is Article, produced through rese arch, inter-
views, and these dia logues, explores the current framework
for managing coast al water quality and monitoring in the
context of MMAs, and identies challenges to and oppor-
tunities for enhanced coordination and improved manage-
ment. Its focus is on three areas identied as presenting
the most concrete opportunities under existing statutory
regimes for improving marine water quality management
in California.
Part I explores opportunities for enhancing MM A water
quality through existing water quality and coastal protec-
tion programs and collaborations. Part II focuses on the
coordination of water quality monitoring and data access.
Telephone Interview With Cyndi Dawson, Marine Protected Area Policy
Advisor, Ocean Protection Council (Mar. 17, 2016).
11. OPC is tasked with coordinating activities of ocean-related state agencies
and establishing policies to coordinate the collection and sharing of scien-
tic data related to coastal and ocean resources among agencies. C. P.
R. C §§35600-35625.
12. e 2010 MOU was amended in 2015; it recognizes the need for coop-
erative and coordinated eorts to implement the marine protected areas
(MPAs) and is signed by 15 government and nongovernmental entities,
including the State Water Board. MLPA Implementation MOU, available
at http://www.opc.ca.gov/webmaster/_media_library/2016/08/151104-
FINAL-MPA-implementation-MOU_scannedsigs.pdf [hereinafter MLPA
Implementation MOU].
13. e MPA Statewide Leadership Team includes state and federal agencies
and other partners that play a direct or key support role in management of
the network. e Leadership Team is led by the OPC, and includes the De-
partment of Fish and Wildlife (CDFW), DFW Law Enforcement Division,
Fish and Game Commission, California Coastal Commission (CCC), Cali-
fornia State Lands Commission, Department of Parks and Recreation, State
Water Resources Control Board, California Ocean Science Trust (OST),
MPA Collaborative Network, the National Park Service, Resources Legacy
Fund, and West Coast Regional Oce of National Marine Sanctuaries.
14. S W R C B, C O P
(2015) [hereinafter O P].
15. IRWM brings local agencies and other stakeholders, with a range of water-
related roles and interests, together to address water management needs
collaboratively within self-identied regions. Subsequent to the IRWM
Planning Act of 2002, three state bond measures allocated funds to sup-
port IRWM planning and implementation eorts by regional water man-
agement groups. See D W R, S
P, R S S
I R W M (2017).
Part III considers numerous ways to oset resource con-
straints on programs protecting marine water quality, and
Part IV concludes.
I. Improving Coordination of Coastal
Water Quality and Ocean Health
Protection
Water quality impacts ocean health, including the marine
ecosystems designed to be protected by California’s areas
of special biological signicance (ASBS) and MPAs.16 Yet ,
ASBS and MPAs are regulated under dierent regimes
with disparate mana gement practices. e MLPA men-
tions concerns regarding water quality eects on MPAs,17
but does not provide any independent mechanism for
restricting or abating sources of such pollution. Rather,
California regulates coastal water qua lity through a sepa-
rate regulatory regime. Moreover, while recent policies
adopted by the State Water Resources Control Board
(State Water Board) attempt to integrate MPAs into water
qualit y regulation,18 t here are a number of opportunities to
improve the coordination of marine resource management
and water quality regulation.
A. Background: Bifurcated MPA and
Water Quality Protection
As discussed below, the two major categories of protected
areas along California’s coasts—MPAs and ASBS— are
managed under separate legislative mandates: MPAs by
the California Depar tment of Fish and Wildlife (CDFW)
in the Natural Resources Agency, and ASBS by the State
Water Board in the California Environmental Protection
Agency (CalEPA). e dierent missions of the two agen-
cies are reected in their implementing regulations, with
MPA management focused on protecting marine resources
and limiting direct ex tractive activities, a nd ASBS man-
agement focused on regulation of coasta l discharges.
Although both agencies aim to protect ecosystem function
and integrity, these two regulatory regimes address dier-
ent sets of stressors on coastal waters, a nd there are lim-
ited incentives to promote joint management. Some eorts
have been made to enhance integration, but additional
opportunities remain.
16. e MLPA establishes six overall goals for California’s statewide MPA net-
work, including protection of the natural diversity and abundance of ma-
rine life, and the structure, function, and integrity of marine ecosystems.
C. F G C §2853; ASBS are ocean areas requiring protec-
tion of species or biological communities. O P, supra note 14,
app. I. at 28.
17. See, e.g., C. F G C §§2851(c), 2852(d), 2853(b)(1), (3),
2857(b)(2).
18. See infra notes 50-54 and accompanying text.
Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.
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