BILL ANALYSIS
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| SENATE COMMITTEE ON NATURAL RESOURCES AND WATER |
| Senator Fran Pavley, Chair |
| 2009-2010 Regular Session |
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BILL NO: SB 207 HEARING DATE: April 28, 2009
AUTHOR: Florez URGENCY: No
VERSION: March 31, 2009 CONSULTANT: Bill Craven
DUAL REFERRAL: No FISCAL: Yes
SUBJECT: Delta smelt.
BACKGROUND AND EXISTING LAW
The California Endangered Species Act (CESA) authorizes the
Department of Fish and Game (DFG) to list species that are
threatened or endangered based on appropriate scientific
information. Such species are then entitled to receive
additional legal protections, such as a prohibition on "taking"
such listed species, in order to avoid extinction.
Section 2081 of the Fish and Game Code authorizes, but does not
require, DFG to grant incidental take permits to applicants if
various conditions are met. The conditions include provisions
requiring the DFG to ensure that endangered and threatened
wildlife are adequately protected, that the direct and indirect
impacts from a project are fully mitigated, and that the
issuance of the permit would not jeopardize the continued
existence of the species.
The delta smelt is a species of tiny fish that are unique to the
Sacramento-San Joaquin Delta (Delta). Annually, they migrate
from spawning areas in the upper Delta, where water is less
saline, downstream to Suisun Marsh, and then return upstream to
spawn and die. They were listed as threatened under the federal
and state ESA in 1993. On March 4, 2009, they were downgraded
to "endangered" under CESA.
In recent years, federal/state monitoring has shown the delta
smelt population dropping precipitously. Delta smelt monitoring
dates back 40 years and includes more than 30 Delta monitoring
sites. In the last decade, the Fall Mid-Water Trawl Abundance
Index for delta smelt dropped from a high of 864 (1999) to 2 in
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2008. The population of this species has clearly crashed.
During the recent catastrophic decline in delta smelt, the State
Water Project substantially increased Delta pumping, to
record-high levels. Then, in 2007, the Delta smelt decline
prompted federal Judge Oliver Wanger (E.D. Cal/Fresno) to
restrict Delta pumping by the federal/state water projects,
after he found that the federal "biological opinions" violated
the federal ESA.
SB 207 proposes creation of a delta smelt hatchery and
additional refuge population to reverse this decline and obtain
for those parties who "take" delta smelt the legal permission
for their take, at least under state law. The eligible parties
include state and federal agencies that export water from the
Delta, and others who qualify as "banking partners" and enter
into agreements with DFG to participate in the program.
State and federal agencies already have begun programs to
preserve a refuge population of delta smelt. Before the 2007
prohibition on taking delta smelt for scientific purposes, UC
Davis acquired approximately 600 delta smelt for breeding a
refuge population, located at the State Water Project's Delta
pumping facility. The Department of Water Resources and the
State Water Resources Control Board have committed $2.1 million
to expand the facility and staff at the UC Davis Fish
Conservation and Culture Lab. The Fish and Wildlife Service
(FWS) also transferred 200 of those delta smelt to create a
separate refuge population at its hatchery at Lake Shasta.
Last year, Senator Florez authored a similar bill, SB 994, that
was held in Assembly Appropriations.
PROPOSED LAW
This bill would require the Department of Fish and Game (DFG) to
develop, by January 1, 2011, the Delta Smelt Hatchery Program
that would be designed to preserve and restore the delta smelt,
and serve as a mitigation bank. The bill would require that the
hatchery program accomplish all of the following:
a) Design a fish propagation facility to establish a
genetic refugia population for research brood stock and
source for supplementing wild populations.
b) Identify three potential sites within, or immediately
adjacent to the Delta that are suitable for the design,
construction and operation of the delta smelt hatchery and
construct at least one delta smelt hatchery by January 1,
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2011. DFG would also be required to develop a hatchery
management plan to ensure success of the program.
c) Establish a mitigation banking program, with
guidelines for agreements to provide "banking partners"
with authorization of take of delta smelt under CESA.
d) Requires DFG to enter into mitigation banking
agreements providing authorization of take of delta smelt
under the state ESA, provided the agreements require
participation in the bank at a level "roughly
proportional" to the impact of the banking partner on
delta smelt, and that the partner contributes sufficient
funding for the purpose of obtaining take authorization
under CESA.
e) Requires DFG to issue a take authorization to
mitigation banking partners under the state ESA.
f) Requires delta smelt reared in the hatchery to be
applied toward mitigation credits for mitigation bank
partners, including credits to satisfy federal ESA
obligations consistent with a mitigation plan approved by
the United States Fish and Wildlife Service (USFWS).
g) Requires banking partners to pay for long-term
operation and maintenance of the hatchery, and dedicates
banking partner funding exclusively to the hatchery.
h) Requires an audit of the hatchery program every three
years.
i) Transfers an unspecified sum of money from an
unspecified source of funding to DFG, and continuously
appropriates such funding.
j) Allows DFG to contract with public agencies outside of
state government and partner with USFWS for construction
and operation of delta smelt hatchery.
aa) Requires DFG to cooperate in the development of
long-term, comprehensive Delta ecosystem solutions to
ensure consistency with the hatchery program.
bb) Requires DFG to incorporate the hatchery into
"any state-adopted comprehensive Delta ecosystem program."
ARGUMENTS IN SUPPORT
According to the author, the crisis with the delta smelt has
triggered a series of regulatory and legal actions that has
severely impacted the Central Valley, specifically including a
reduction in water deliveries for agriculture. The affect has
been significant in many communities. Not only is there a
decrease in agricultural production, but corresponding decreases
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in agricultural employment. The restrictions on Delta pumping
have not improved the long-term prospects for the smelt, he
contends.
The author believes that the ongoing, small-scale captive
breeding programs for delta smelt are insufficient to replenish
the population. A larger-scale hatchery program, paid for by
water users, would be a part of a comprehensive Delta solution,
in his view.
ARGUMENTS IN OPPOSITION
A coalition of conservation organizations opposes the bill. The
coalition, consisting of the Natural Resources Defense Council,
Environmental Defense Fund, Bay Institute, Planning and
Conservation League, Friends of the River, The Nature
Conservancy, Defenders of Wildlife, and others, make these
points: (1) the bill requires that mitigation bank partners
receive "take" authorization without regard to whether the
normal provisions of Sec. 2081 of the Fish and Game Code have
been met by an applicant for incidental take permit authority;
(2) The bill requires that a delta smelt hatchery be included in
any "comprehensive Delta ecosystem program" regardless of
whether such a hatchery is recommended by the ongoing
legislative, executive branch, or stakeholder working groups
currently underway. (None of the already completed efforts such
as the Delta Vision Blue Ribbon Task Force recommended a delta
smelt hatchery).
The coalition is concerned that a hatchery program will not
address the systemic problems in California's water supply
system or ameliorate the conditions that have caused the
downward spiral in smelt numbers over the last few years.
COMMENTS
The author is clearly concerned about the health of the Delta
and the consequences that are posed to those who depend on water
supplies from that source. This bill presents the issue of
whether a delta smelt hatchery should be among the first major
projects that is undertaken not only to create more fish, but
also to provide Delta water exporters with incidental take
authorizations under the state endangered species act. This
Committee's oversight hearings conducted by then-Chairman
Darrell Steinberg conclusively proved the absence of lawful
permitting by DWR or the operation of the pumps that clearly
"take" delta smelt, and nothing has changed in the past three or
four years since those hearings.
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These new legislatively-mandated incidental take permits would
be granted prior to the enactment of any recommendation of the
ongoing bicameral, bipartisan legislative working groups on the
Delta convened by the Pro Tem and the Speaker that are
considering a comprehensive approach to the Delta, and prior to
consideration of any of the pending Delta legislation or pending
agency actions such as the proposed Bay Delta Conservation Plan
(BDCP) by the Natural Resources Agency.
The proposed BDCP is specifically proposed in order to confer
ESA take permits for the federal/state water project export
pumps in the South Delta. The BDCP does not include any
proposal for a delta smelt fish hatchery. Instead, it focuses
on Delta water conveyance and developing new delta smelt
habitat. Neither state nor federal biologists have recommended
a new delta smelt refuge population as a conservation
recommendation in federal ESA biological opinions or the BDCP.
Last year, the Assembly policy committee analysis of SB 994
quoted Dr. Peter Moyle, a UC Davis professor and one of the
foremost experts on delta smelt, on the hatchery concept:
"Trying to keep delta smelt going by raising them
in
hatcheries and releasing them is like trying to
raise sheep
in a drought-seared pasture surrounded by a
forest full of
hungry wolves. Life expectancy of the animals
would be
short, probably measured in days or hours. The
environment
for smelt has to be there if they are to survive
in the
wild."
Moyle, who oversees the UC Davis refuge population, has stated
that smelt can survive and reproduce in captivity, but he is
convinced that such efforts are "prone to failure" for a range
of reasons. He added that it is "worth noting that the salmon
fishery has collapsed despite hatcheries releasing millions of
young each year, into the wild."
TECHNICAL AMENDMENT
AMENDMENT 1
Page 2, line 12, add: In 2009, the delta smelt was listed
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as endangered under state law.
SUPPORT
None received
OPPOSITION
California Sportfishing Protection Alliance
Defenders of Wildlife
Environmental Defense Fund
Environmental Water Caucus
Friends of the River
Natural Resources Defense Council
Northern California Council, Federation of Fly Fishers
Pacific Coast Federation of Fishermen's Associations
Planning and Conservation League
Sierra Club California
The Bay Institute
The Nature Conservancy
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