BILL ANALYSIS Ó
AB 1325
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Date of Hearing: January 12, 2016
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 propagation facility for the purpose of:
i. Establishing a refugia population of Delta
smelt;
ii. Developing brood stock 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, and 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.
8)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.
9)Mandates that a Delta smelt hatchery program be included as an
action in any state-adopted comprehensive Delta ecosystem
program.
10)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:
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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
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
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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
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)Background:
a) 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 listing 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
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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 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.
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b) 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 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.
In the Spring of 2015 the facility was awarded a $10 million
grant - $2.5 million per year for four years - from the United
States Bureau of Reclamation (Bureau). 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
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behavior.
c) 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 avoidance
and mitigation required for an incidental take permit under
CESA. This is particularly significant since it 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.
d) 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
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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."
3)Prior and related legislation: SB 207 (Florez) of 2009 was
substantially similar to this bill. SB 207 was held in the
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
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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
re-heard 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 drafts of the Bay Delta Conservation Plan
(BDCP).
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:
i) 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,
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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.
ii) 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.
iii) 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.
1)Support Arguments: Supporters assert this bill would help to
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.
2)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
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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 do 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.
Prior Committee Action: This bill was previously heard by this
committee on April 28, 2015, and failed passage.
Reconsideration was granted and this bill is scheduled to be
heard for VOTE ONLY on January 12, 2016.
REGISTERED SUPPORT / OPPOSITION:
Support
Semitropic Water Storage District
Kern County Water Agency
Metropolitan Water District (in concept)
Opposition
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California League of Conservation Voters
Center for Biological Diversity
Clean Water Action
Coastal Environmental Rights Foundation
Defenders of Wildlife
Environmental Water Caucus
Friends of the River
Natural Resources Defense Council
Restore The Delta
Sierra Club California
The Nature Conservancy
Wholly H2O
Analysis Prepared by:Diane Colborn / W., P., & W. / (916)
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319-2096