BILL ANALYSIS Ó
AB 1325
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Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON WATER, PARKS, AND WILDLIFE
Marc Levine, Chair
AB 1325
(Salas) - As Introduced February 27, 2015
SUBJECT: Delta smelt
SUMMARY: Enacts the Delta Smelt Preservation and Restoration
Act of 2016 which would require the Department of Fish and
Wildlife (DFW) to develop a Delta smelt hatchery program, and to
enter into mitigating banking agreements authorizing take of
Delta smelt in exchange for funding of the hatchery program.
Specifically, this bill:
1)States legislative findings and declarations regarding the
Delta smelt, including its status, life cycle, and known
threats, the need for a comprehensive strategy for a
sustainable Delta that addresses ecosystem and reliable water
supply needs, and the need for a comprehensive solution.
Further finds that immediate action is needed to address the
critical condition of Delta smelt, and that a Delta smelt
hatchery is one element in what should be a suit of actions
aimed at habitat improvement and species recovery.
2)Requires DFW to develop a Delta Smelt Hatchery Program to
preserve and restore the Delta smelt to be implemented by
January 1, 2018.
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3)Requires that the hatchery program do all of the following:
a) Design a propogation facility for the purpose of:
i. Establishing a refugia population of Delta
smelt;
ii. Developing broodstock for scientific and
educational purposes;
iii. Providing a source of fish for
supplementation of wild populations.
b) Develop three potential sites within or adjacent to
the Delta for a hatchery.
c) By January 1, 2019, design and construct a hatchery
on one of the three sites.
d) Develop a hatchery management plan in consultation
with the University of California and the United States
Fish and Wildlife Service (USFWS), and other scientific
peer review as deemed appropriate by DFW.
e) Establish and operate a mitigation bank to provide
authorization for take of Delta smelt under the
California Endangered Species Act (CESA);
f) Adopt guidelines and procedures for entering into
mitigation bank agreements and regarding the cost of
participation.
1)Requires DFW to enter into mitigation banking agreements with
banking partners for the purpose of providing take
authorization for Delta smelt under CESA. Requires that the
mitigation banking agreements require a banking partner to
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participate in the mitigation bank at a level that is roughly
proportional to the banking partner's impacts on Delta smelt.
Requires that financial contributions to the mitigation bank
shall be determined to provide sufficient certainty that
financing is available to cover each banking partner's share
of the annual operations and to satisfy the mitigation
obligation of the banking partner under a CESA incidental take
permit issued by DFW.
2)Requires DFW to issue an incidental take permit under CESA for
take of Delta smelt if DFW enters into a mitigation banking
agreement that satisfies all the requirements of this bill.
3)Requires Delta smelt reared for refugia populations,
scientific research, and population augmentation to be counted
towards mitigation credits, and for hatchery production in
excess of the obligations of mitigation banking partners to be
available as mitigation credits to meet obligations of future
activities, and to satisfy mitigation obligations required
under the federal Endangered Species Act (ESA), consistent
with a mitigation plan approved by the USFWS.
4)Provides that funding necessary for long-term operations and
maintenance of the hatchery program shall be paid for by
revenues received from banking partners, and that funds
provided through banking agreements shall be dedicated to
program implementation, and not used for other purposes.
5)Appropriates an unspecified sum of money from an unidentified
source to DFW to implement this bill. Provides that the costs
of planning, design and construction of the hatchery,
including purchase of land, shall be made from this
appropriation. Requires an audit of all funds received every
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3 years.
6)Authorizes DFW to contract with public agencies outside state
government for planning, design, construction, and operation
of the hatchery.
7)Authorizes DFW to partner with the USFWS. Requires DFW to
cooperate on development of long-term comprehensive Delta
ecosystem solutions to ensure consistency with the hatchery
and mitigation bank program created by this bill. Mandates
that a Delta smelt hatchery program be included as an action
in any state-adopted comprehensive Delta ecosystem program.
8)States that nothing in this bill 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 CESA.
12)Defines various terms for purposes of this bill.
EXISTING LAW:
1)Provides, under the state CESA and the federal ESA for the
listing of species that are threatened or endangered for
additional legal protections, including a prohibition on
"taking" of such listed species, in order to avoid extinction.
Allows for the issuance of permits by DFW authorizing take of
listed species where the take is incidental to an otherwise
lawful activity, the impacts of the authorized take are
minimized and fully mitigated, as specified, and the take will
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not jeopardize the continued existence of the species.
2)Lists the Delta smelt as threatened under the federal ESA, and
as endangered under the state CESA.
FISCAL EFFECT: Unknown; Includes an appropriation of an
unspecified amount.
COMMENTS: This bill requires the DFW to construct a Delta smelt
mitigation hatchery and to enter into mitigating banking
agreements authorizing take of Delta smelt in exchange for
funding of the hatchery program.
1)Author's Statement: The author's stated purpose with this
bill is to require DFW to establish and operate a Delta smelt
fish hatchery as a mitigation bank to spawn and rear smelt for
release into the Delta, with the intent of increasing the
population to a level that warrants removal of the species
from the endangered species list. The author, in background
information provided to the committee, indicates that the
listing of the Delta smelt under federal and state endangered
species acts "has triggered a series of regulatory and legal
actions, and despite these measures, the Delta smelt
population has reached record lows. Water supplies have been
dramatically reduced for two-thirds of California residents
and for Central Valley farmers that grow half the nation's
fruits and vegetables. In addition to these cut-backs, more
protections have been put in place, which are expected to
reduce water deliveries by 30 percent, affecting at least 25
million Californians. For over 15 years, UC Davis' Fish
Conservation and Culture Lab have bread Delta smelt in
captivity, with the goal of preserving the population until
Delta conditions are such that the population can be released
into the wild. The Bureau of Reclamation has committed
funding of $2.5 million per year, but more resources are
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needed to continue research and breeding of a smelt population
that could replenish the population in the wild. The effect
of the Delta smelt crisis has been significant in many
communities. Not only is there a decrease in agricultural
production, but corresponding decreases in agricultural
employment. The restrictions on Delta pumping have not
improved the long-term prospects for the smelt."
2)Status of the Delta smelt: Delta smelt are a small fish endemic
to the Sacramento San Joaquin Delta. They inhabit the
freshwater-saltwater mixing zone of the estuary, and migrate
upstream to spawn in freshwater. They typically have a one year
life cycle, with some fish surviving for up to two years. The
Delta smelt was first listed as threatened under the federal ESA
and state CESA in 1993. Record low indices prompted the listed
of the species as endangered under CESA in 2010.
A Smelt working group, consisting of scientific fisheries
experts with the USFWS, United States Bureau of Reclamation,
United States Environmental Protection Agency, California
Department of Water Resources, DFW, and the National Oceanic
Atmospheric Administration (NOAA) Fisheries, has been meeting
for over a decade to address recovery efforts for the species.
The USFWS and Smelt working group have identified four
significant threats to Delta smelt, including: 1) direct
entrainment in state and federal water export facilities, 2)
summer and fall increases in salinity, 3) summer and fall
increases in water clarity, and 4) effects from introduced
species. Other potential threats include ammonium, predation,
entrainment in power plants, contaminants, and small population
size. According to the USFWS, low abundance, in concert with
ongoing threats throughout the species' range, indicate the
Delta smelt is now in danger of extinction throughout its range.
Leading fisheries biologists have warned that the Delta smelt is
on the verge of extinction and could disappear from the wild
within the next two years. The 2014 Fall mid-winter trawl
survey showed the lowest number of Delta smelt in 47 years of
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record keeping. The 2015 Spring trawl survey caught only 6
smelt. It is also worth noting that while the status of the
Delta smelt has in the past significantly affected operations at
state pumping facilities and water exports from the Delta, in
the past year federal fish officials placed no restrictions on
pumping from the South Delta because the smelt were mostly not
present.
It is also important to understand the Delta smelt crisis in the
larger context of the overall health of the Delta environment.
The Delta smelt has been significant because, as one of the
species most sensitive to changes in the Delta, it has served as
an indicator species of the overall health of the Delta
ecosystem. Fishery biologists warn that as the Delta smelt go,
so are other listed fish species affected by conditions in the
Delta. Such species include Chinook salmon, Longfin smelt,
green sturgeon, and Central Valley Steelhead. A Delta smelt
hatchery alone would not address the underlying problems in the
Delta that impair Delta smelt habitat, and the habitat of other
listed species.
3)Existing Delta Smelt fish hatchery programs are already in
operation: Two Delta smelt hatchery operations in California
already exist to protect a refugia population of Delta smelt in
the event of their extinction in the wild. The USFWS manages a
population of captive bread Delta smelt at its fish hatchery
below Shasta Dam. The University of California at Davis (UCD)
also manages a captive breeding program of Delta smelt for
experimental and conservation purposes at a lab in the Delta
south of Stockton. Both facilities raise hundreds of smelt at a
time through their entire life cyles.
The USFWS hatchery program is part of a pilot program at
Livingston Stone National Fish Hatchery, a small hatchery on the
Sacramento River near the base of Shasta Dam. Currently, there
is no plan to reintroduce the 20,000 smelt raised at Livinston
Stone into the Delta. Rather, they are being kept as a safety
net in case the ongoing population crash causes extinction in
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the wild. The pilot project is planned to last for about five
more years, and could be supplanted by a permanent
smelt-breeding operation.
Delta smelt being raised at the UCD Fish Conservation and
Culture Laboratory in the Delta are similarly being held as an
emergency stock. The facility has been operating for the past 7
years raising a refuge population, working to preserve their
genetic diversity, and to supply fish for scientific research.
Last month the facility was awarded a $10 million grant - $2.5
million per year for four years - from the United States Bureau
of Reclamation. In approving the grant award, the Bureau stated
that the lab, by maintaining a genetically diverse population of
Delta smelt in captivity, could provide a seed population for
future rehabilitation should their habitat in the Delta ever
recover. UCD indicates the goals of the project are: 1) to
continue to develop the Delta smelt refuge population as a
safeguard against species extinction, 2) to create a genetically
sound population of captive fish for research purposes, and 3)
to conduct experiments on smelt physiology, health, condition
and behavior.
4)Policy Questions for the Committee: The mitigation provisions
in this bill would allow entities who agree to pay a portion of
the costs of a mitigation hatchery, to receive an incidental
take permit for the take of Delta smelt under CESA. This is a
significant departure from current CESA requirements. Under
existing law, the state can issue an incidental take permit for
a species that is listed as endangered only if: 1) the take is
incidental to an otherwise lawful activity, 2) the impact of the
take is minimized and fully mitigated, and 3) the take will not
jeopardize the continued existence of the species. In contrast,
this bill would require DFW to issue a take permit to any entity
who enters into a mitigation banking agreement with DFW and
agrees to pay a proportional share of the costs of operating a
Delta smelt hatchery. This bill would also appear to provide
that this alone would be sufficient to satisfy all of the
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avoidance and mitigation required for an incidental take permit
under CESA. This is particularly significant since it is
appears extremely unlikely, at least at this time or for the
foreseeable future, that Delta smelt reared in the hatchery
would be able to be released or survive in the wild.
The committee may also wish to consider whether requiring a
third hatchery program to be developed by DFW at this point,
particularly if that hatchery is focused on maintenance of a
refuge population of Delta smelt, wouldn't be redundant and
duplicative of the existing hatchery programs operated by UC
Davis and the USFWS.
5)Can captive populations be used to restore Delta smelt in the
wild? According to Dr. Peter Moyle, this question is not an
easy one to answer, but it is clear that "this could not work as
long as the conditions that caused the Delta smelt to decline
continue. These conditions include competition and predation by
alien species, altered food supply, multiple water contaminants,
and water exports upstream and within the Delta. The extended
drought also presumably has worsened these conditions and pushed
the smelt over the edge of the extinction cliff, or close to
it." (quoting Dr. Moyle from March 18, 2015 article "Prepare for
Extinction of Delta smelt" posted by UCD's Center for Watershed
Science.) Dr. Moyle further states that "at the very least,
reintroduction would have to wait until we had wet years with
lots of inflow from the rivers . But if we wait too long for
reintroduction, the smelt may not be capable of living on their
own in the wild. Having multiple generations in captivity tends
to alter behavior and general "fitness" of fish. The problems
hatchery salmon have surviving in the wild are a reflection of
this lack of natural selection."
6)Prior and related legislation: SB 207 (Florez) of 2009 was
substantially similar to this bill. SB 207 was held in the
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Senate Natural Resources and Water Committee.
SB 994 (Florez) of 2008 was also substantially similar to this
bill. SB 994 was heard in this committee in April and May of
2008, and subsequently held in the Assembly Appropriations
Committee. The Assembly policy committee analysis noted that SB
994, as initially proposed, set objectives for a smelt hatchery
that were difficult if not impossible to achieve, including
removal of the Delta smelt from listing under the ESA. The
analysis pointed out that a hatchery population cannot be relied
on as a sustainable population for purposes of the ESA. Second,
the analysis noted that a hatchery or refuge population may in
fact impair the likelihood of the Delta smelt's survival, noting
that federal biologists have identified salmon hatcheries as a
stressor on wild salmon, due to problems such as spreading of
disease. Third, the analysis noted that the concept of a Delta
smelt hatchery had not been proposed by ESA regulators, or by
state or federal biologists that administer the ESA, in any
biological opinion or conservation recommendation.
SB 994 was then amended to shift the emphasis to mitigation bank
credits and take permits under the state but not the federal
ESA, and to require banking partners to pay all costs. The
amendments retained the requirement that DFW create a hatchery,
but focused the hatchery on creation of a refuge population
rather than on reintroduction or supplementation of wild
populations, though that continued to be one of three stated
purposes for the hatchery. The amended bill was then reheard
by the committee. The committee analysis again pointed out that
neither state nor federal biologists had recommended a new Delta
smelt refuge population as a conservation recommendation in any
federal biological opinions, or in BDCP drafts.
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Committee staff is not aware that any such recommendations have
been made by federal biologists since that time, and
recommendations for a Delta smelt hatchery were not included in
drafts of the BDCP. Moreover, since SB 994 was proposed there
have been two Delta smelt hatchery programs implemented in
California that are already rearing refuge populations.
Consequently, the same concerns that were raised with the
earlier proposals remain relevant today.
The Department of Fish and Game (now DFW) opposed SB 994,
finding it problematic on a number of fronts. Among the
objections raised by the department were the following:
1)It is unclear under the language if the bill would create an
exemption from all CESA requirements for export water
diverters who provide Delta smelt hatchery funding, by
establishing a presumption that funding a hatchery is adequate
to address the proportional minimization, avoidance and full
mitigation requirements for water exports. It also indicates
that the hatchery must be part of a long-term comprehensive
solution. If an assumption is created that a hatchery alone
compensates for the "proportional impacts" of export water
diversions, then the bill appears to pre-decide that the
balance of the comprehensive solution is to be funded by the
public or others.
2)The bill is too narrowly focused on growing Delta smelt, which
is only one of the imperiled species in the Delta, and ignores
other critical factors including the need for habitat and
revisions to water management.
3)The bill conflicts with existing CESA protections and current
mitigation banking practices, and would be expensive, with the
planning, design, construction, operation and maintenance of a
hatchery, costing many millions of dollars.
Support Arguments: Supporters assert this bill would help to
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restore the Delta smelt population and allow state, federal and
other water users to enter into agreements to provide funding to
operate smelt hatcheries. They argue this bill would provide
the dual benefits of developing methods of research to increase
the Delta smelt population and allowing Delta smelt reared in
the hatcheries to be counted toward mitigation credits for
mitigation bank partners so that more water will be available to
supply water users that rely on the State Water Project and the
Central Valley Project.
Opposition Arguments: Opponents assert this bill would gut the
requirements of the California Endangered Species Act,
undermining protections for fish and wildlife in the Bay-Delta
estuary, without addressing the underlying causes of the decline
of numerous fish and wildlife species in the Delta. By
requiring DFW to construct and operate a mitigation hatchery
(using taxpayer funding) that would provide authorization to
take listed species, opponents assert this bill would
effectively eliminate existing legal requirements that the
impacts of take be fully mitigated and that the take not
jeopardize the continued existence of the species. Opponents
further argue that hatcheries to not address the underlying
causes of numerous fish declines in the Bay-Delta estuary, do
not minimize and mitigate the effect of take on the species, and
are unlikely to prevent the extinction of the species in the
wild.
REGISTERED SUPPORT / OPPOSITION:
Support
Semitropic Water Storage District
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Opposition
California League of Conservation Voters
Center for Biological Diversity
Clean Water Action
Coastal Environmental Rights Foundation
Defenders of Wildlife
Friends of the River
Natural Resources Defense Council
Sierra Club California
Wholly H2O
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
319-2096
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