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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.
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.
4) 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 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.
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5) 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.
6) 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.
7) 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.
8) 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 3 years.
9) Authorizes DFW to contract with public agencies outside state government for planning,
design, construction, and operation of the hatchery.
10) Authorizes DFW to partner with the USFWS.
11) 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.
12) Mandates that a Delta smelt hatchery program be included as an action in any state-adopted
comprehensive Delta ecosystem program.
13) 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 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.
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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 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 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
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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.
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
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)
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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 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 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
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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, 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.
4) 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.
5) Opposition Arguments: Opponents assert this bill would gut the requirements of the
California Endangered Species Act, undermining protections for fish and wildlife in the BayDelta 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 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.
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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
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) 319-2096