California Legislature—2015–16 Regular Session

Assembly Bill No. 1325

Introduced by Assembly Member Salas

February 27, 2015

An act to add Chapter 7.1 (commencing with Section 1710) to Division 2 of the Fish and Game Code, relating to the Delta smelt, and making an appropriation therefor.

LEGISLATIVE COUNSEL’S DIGEST

AB 1325, as introduced, Salas. Delta smelt.

Existing law requires the Fish and Game Commission to establish fish hatcheries for the purposes of stocking the waters of California with fish, and requires the Department of Fish and Wildlife to maintain and operate those hatcheries.

This bill would enact the Delta Smelt Preservation and Restoration Act of 2016. The act would require the department to develop a Delta smelt hatchery program to preserve and restore the Delta smelt. The bill would require the department to enter into mitigation banking agreements with banking partners for the purpose of providing take authorizations to banking partners and to obtain funding from banking agreements.

The bill would appropriate an unspecified amount of money from an unspecified source to the department for purposes of implementing the bill’s provisions.

Vote: majority. Appropriation: yes. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

The Legislature finds and declares all of the
following:

(a) The Delta smelt (Hypomesus transpacificus) is a small fish
native to the Sacramento-San Joaquin Delta. The Delta smelt is a
particularly vulnerable species in the Delta, with a typical lifespan
of a single year. It has an unusually low fecundity for a fish with
a limited planktonic larvae diet. It resides primarily within the
interface between the salt and fresh water.

(b) In 1993, the Delta smelt was listed as threatened and has
henceforth been protected under state law pursuant to the California
Endangered Species Act.

(c) There are many known threats to the smelt in the Delta. Loss
of habitat, reduced food supply, invasive species, rising
temperatures, and toxic contaminants have all been identified as
playing a potential role in the decline of Delta smelt.

(d) It is critical to move forward with the appropriate
comprehensive strategy for a sustainable Delta that includes the
investments necessary to allow the Delta smelt and other sensitive
species to survive and thrive in their native habitat. This goal must
be accomplished in a manner that will also provide sufficient and
reliable water supplies to meet the public health and safety needs
of Californians throughout the state and support California’s vital
economic interests.

(e) A long-term comprehensive solution is vital to addressing
the myriad of issues affecting ecosystem health and species
recovery. However, immediate action is needed to address the
critical condition of the Delta smelt population. A Delta smelt
hatchery is a single element in what should constitute a suit of
actions aimed at improving habitat conditions and species recovery.
A Delta smelt hatchery can provide near-term benefits to ensure
the survival of this key Delta species.

SEC. 2.  

Chapter 7.1 (commencing with Section 1710) is added
to Division 2 of the Fish and Game Code, to read:

 

Chapter  7.1. Delta Smelt Preservation and Restoration
Act

 

1710.  

This chapter shall be known, and may be cited, as the
Delta Smelt Preservation and Restoration Act of 2016.

1711.  

As used in this chapter:

(a) “Banking partner” means any state, federal, or local public
agency, or person, that enters into a written agreement with the
department to participate in the Delta Smelt Hatchery Program.

(b) “Delta” means the Sacramento-San Joaquin Delta as
described in Section 12220 of the Water Code.

(c) “Delta smelt” means the Delta smelt (Hypomesus
transpacificus) of the family Osmeridae.

(d) “Mitigation bank” means a publicly or privately owned and
operated fish hatchery in which Delta smelt are spawned and reared
for the purpose of creating refugia populations or for release into
the delta to increase the population of Delta smelt in the delta or
for use as stock for scientific studies, and which is constructed
consistent with this chapter to mitigate the adverse impacts on
Delta smelt populations caused by the activities of banking
partners.

(e) “Mitigation banking agreement” means a written agreement
between the department and a banking partner that satisfies the
incidental take requirements of subdivision (b) of Section 2081
and that provides a uniform procedure and contribution from each
banking partner for receiving mitigation bank credits.

(f) “Program” means the Delta Smelt Hatchery Program
developed by the department pursuant to Section 1712.

(g) “Refugia” means a captive Delta smelt broodstock population
managed to maintain a genetic population representative of the
wild population.

1712.  

The department shall develop the Delta Smelt Hatchery
Program to preserve and restore the Delta smelt. The program shall
be implemented by January 1, 2018, and shall do all of the
following:

(a) Design a propagation facility for the following intended
purposes:

(1) Establishing a genetic refugia population.

(2) Developing broodstock for scientific and educational
purposes.

(3) Providing a source of fish for supplementation of wild
populations.

(b) Identify three potential sites within, or immediately adjacent
to, the delta that are suitable for the design, construction, and
operation of a Delta smelt hatchery.

(c) Result in the design and construction of at least one Delta
smelt hatchery on a site identified under subdivision (b) by January
1, 2019.

(d) Develop a hatchery management plan that identifies hatchery
management and implementation strategies to ensure the success
of the program in meeting its goals. The Hatchery Management
Plan shall be developed in consultation with the University of
California and the United States Fish and Wildlife Service, and
other mediums for scientific peer review, as deemed appropriate
by the department.

(e) Establish and operate a mitigation bank available to banking
partners in order to provide take authorization pursuant to Section
2081 to participating banking partners.

(f) Adopt guidelines that establish the procedures for entering
into a mitigation banking agreement and the cost of participation
in the mitigation bank.

1713.  

The department shall enter into mitigation banking
agreements with banking partners for the purpose of providing
take authorization under Section 2081. Mitigation banking
agreements shall meet both of the following requirements:

(a) Establish a requirement for the banking partner to participate
in the mitigation bank at a level that is roughly proportional to the
impact of the banking partner’s activity on Delta smelt.

(b) Set the financial contribution of the banking partner, together
with a method of making financial contributions to the mitigation
bank, that provide sufficient certainty that financing is available
for that banking partner’s share of the annual operations of the
Delta smelt hatchery in an amount sufficient to satisfy the
mitigation obligation of the banking partner under the permit issued
pursuant to Section 1714.

1714.  

If the department enters into a mitigation banking
agreement that satisfies all of the requirements of this chapter, the
department shall issue a permit authorizing an incidental take under
Section 2081 to participating banking partners.

1715.  

Delta smelt reared for refugia populations, scientific
research, and population augmentation shall be counted towards
mitigation credits. Hatchery production in excess of the obligations
of mitigation banking partners shall create mitigation credits
available to meet the obligations of future activities. Banking
credits shall be available to banking partners to satisfy mitigation
obligations required under the federal Endangered Species Act,
consistent with a mitigation plan approved by the United States
Fish and Wildlife Service.

1716.  

Funding necessary for the long-term operation and
maintenance of the program and a Delta smelt hatchery shall be
provided from revenues received from banking partners. Funds
provided through banking agreements shall be dedicated to program
implementation and not used for other purposes.

1717.  

Costs for the planning, design, and construction of a
Delta smelt hatchery, including purchase of any necessary lands,
easements, or rights-of-way shall be made from funds allocated
pursuant to Section 1718. An audit of all funds received for the
program shall be conducted every three years.

1718.  

The sum of dollars ($____) is hereby appropriated from
____ to the department for expenditure without regard to fiscal
year, for purposes of implementing this chapter.

1719.  

The department may contract with public agencies
outside of state government for the planning, design, construction,
and operation of one or more Delta smelt hatcheries.

1720.  

The department may partner with the United States Fish
and Wildlife Service in establishing and operating a Delta smelt
hatchery, provided that all requirements of this chapter shall be
complied with.

1721.  

The department shall cooperate on the development of
long-term comprehensive Delta ecosystem solutions to ensure
consistency with this chapter. A program implemented pursuant
to Section 1712 shall be included as one of the actions incorporated
into any state-adopted comprehensive Delta ecosystem program.

1722.  

Nothing in this chapter shall diminish the protections
provided to Delta smelt under state law, provide for illegal taking
of Delta smelt, or eliminate the requirements for compliance with
the California Endangered Species Act.