BILL ANALYSIS
SB 994
Page 1
Date of Hearing: June 4, 2008
ASSEMBLY COMMITTEE ON WATER, PARKS AND WILDLIFE
Lois Wolk, Chair
SB 994 (Florez) - As Amended: May 1, 2008
SENATE VOTE : (vote not relevant)
SUBJECT : Delta smelt hatchery
SUMMARY : Creates a Delta Smelt Hatchery Program to preserve
and restore the Delta smelt. Specifically, this bill :
1)Requires the Department of Fish and Game (DFG) to develop the
Delta Smelt Hatchery Program to preserve and restore the delta
smelt, and serve as a mitigation bank, requiring that the
Hatchery do all of the following:
a) Be designed to establish a sustainable population of
delta smelt sufficient to warrant the species removal from
the endangered species list under the federal and state
Endangered Species Act (ESA);
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.
c) Construct at least one delta smelt hatchery by January
1, 2011.
d) Implement research methods and strategies to help
increase the population of delta smelt.
e) Establish a mitigation banking program, including costs
and agreements for mitigation.
2)Requires DFG to enter into mitigation banking agreements
providing authorization of take of delta smelt under the state
ESA, provided the agreements require:
a) Mitigation bank partners to participate in the bank "at
a level that is roughly proportional to the impact of the
banking partner's activity on delta smelt."
b) Financial contributions sufficient to meet the
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mitigation obligation of the banking partner for the
purposes of obtaining a take authorization.
3)Requires DFG to issue a take authorization to mitigation bank
partners.
4)Provides for excess hatchery production to create mitigation
credits for future activities.
5)Pays hatchery costs with an unspecified transfer from an
unspecified source.
6)Makes legislative findings regarding the deteriorating
condition of the delta smelt population and its effects on
water resources from the Delta.
EXISTING LAW provides for DFG to list species that are
threatened or endangered for additional legal protections, such
as a prohibition on "taking" such listed species, in order to
avoid extinction.
FISCAL EFFECT : Unknown
COMMENTS : 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.
In recent years, federal/state monitoring has shown the delta
smelt population dropping precipitously. Delta smelt monitoring
dates back 40 years and includes 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 28 (2007).
During the recent catastrophic decline in delta smelt, the State
Water Project substantially increased Delta pumping, to
record-high levels. Then, last August, Delta smelt was the
ESA-listed fish that led to federal Judge Oliver Wanger (E.D.
Cal/Fresno) restricting Delta pumping by the federal/state water
projects, after he found that the federal "biological opinions"
violated the ESA.
SB 994 proposes creation of a delta smelt hatchery to reverse
this decline and help those parties who "take" delta smelt to
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get authorization for their take. ("Take" of an ESA-listed
species may include destruction, harassment or alteration of
habitat.) Such parties may include state and federal agencies
that export water from the Delta, and possibly those who
contract for delivery of such export water.
The bill sets objectives for the hatchery that are difficult, if
not impossible, to achieve, including removal of the delta smelt
from its listing as threatened under the ESA and using research
methods/strategies to increase the population. First, a
hatchery population cannot be counted as a sustainable
population. Federal courts have upheld the federal government's
distinction between wild salmon and hatchery salmon. Therefore,
even if hatchery salmon thrived, the wild salmon would remain on
the ESA list. A similar principle would apply to delta smelt,
making removal from the ESA list based on hatchery fish an
impossible objective.
Second, a hatchery or a refuge population may impair the
likelihood of the delta smelt's survival. Federal biologists
have identified salmon hatcheries as a stressor on wild salmon,
due to problems with spreading of disease and other problems.
The existing process to "salvage" Delta smelt at water export
pumps and transport them to the North Delta, away from the
pumps, has led to substantial delta smelt losses. A research
population of delta smelt was recently destroyed, due to disease
in that population.
Third, the concept of a hatchery has not been proposed by ESA
regulators. Neither federal nor state biologists that administer
the ESA have proposed a hatchery for delta smelt in a biological
opinion, conservation recommendation, or in the Delta
Multi-Species Conservation Strategy. The DFG report submitted
by the author, for example, mentions mitigation banks, but for
land and habitat, not for creating a hatchery.
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Federal and state agencies are now developing a "Bay-Delta
Conservation Plan" (BDCP), in order to obtain 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.
A hatchery does not address the underlying problems in the Delta
that impair delta smelt habitat. Dr. Peter Moyle, a UC Davis
professor and one of the foremost experts on delta smelt,
commented 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 oversees a refuge population of delta smelt, which has
shown that they can survive and reproduce in captivity, but
notes that such refuge programs are "prone to failure" for a
range of reasons. He adds that it "is worth noting that the
salmon fishery has collapsed despite hatcheries releasing
millions of young each year, into the wild."
The California Farm Bureau Federation (CFBF) opposes SB 994
because DFG would operate the mitigation bank, which conflicts
with CFBF policy against governmental regulators operating
mitigation banks. CFBF has proposed amendments to move the
mitigation bank operation to the Department of Water Resources
and the University of California, but the author declined to
accept the amendments.
REGISTERED SUPPORT / OPPOSITION :
Support
Association of CA Water Agencies (if amended)
Friant Water Authority (if amended)
Kern County Water Agency
Metropolitan Water District (if amended)
San Diego County Water Authority
Santa Clara Valley Water District (in concept)
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Southern California Water Committee
Westlands Water District
Opposition
The Bay Institute
California Farm Bureau Federation (unless amended)
Defenders of Wildlife
Environmental Defense Fund
Natural Resources Defense Council
Sierra Club California
Analysis Prepared by : Alf W. Brandt / W., P. & W. / (916)
319-2096