An act to add Chapter 7.1 (commencing with Section 1710) to Division 2 of the Fish and Game Code, relating to the Delta smelt, and making an appropriation therefor.

The people of the State of California do enact as follows:


SECTION 1.
The Legislature finds and declares all of the following:
(a) The Delta smelt (Hypomesus transpacificus) is a small fish native to the Sacramento-San Joaquin Delta. The Delta smelt is a particularly vulnerable species in the Delta, with a typical lifespan of a single year. It has an unusually low fecundity for a fish with a limited planktonic larvae diet. It resides primarily within the interface between the salt and fresh water.
(b) In 1993, the Delta smelt was listed as threatened and has henceforth been protected under state law pursuant to the California Endangered Species Act.
(c) There are many known threats to the smelt in the Delta. Loss of habitat, reduced food supply, invasive species, rising temperatures, and toxic contaminants have all been identified as playing a potential role in the decline of Delta smelt.
(d) It is critical to move forward with the appropriate comprehensive strategy for a sustainable Delta that includes the investments necessary to allow the Delta smelt and other sensitive species to survive and thrive in their native habitat. This goal must be accomplished in a manner that will also provide sufficient and reliable water supplies to meet the public health and safety needs of Californians throughout the state and support California’s vital economic interests.
(e) A long-term comprehensive solution is vital to addressing the myriad of issues affecting ecosystem health and species recovery. However, immediate action is needed to address the critical condition of the Delta smelt population. A Delta smelt hatchery is a single element in what should constitute a suit of actions aimed at improving habitat conditions and species recovery. A Delta smelt hatchery can provide near-term benefits to ensure the survival of this key Delta species.
SEC. 2.
Chapter 7.1 (commencing with Section 1710) is added to Division 2 of the Fish and Game Code, to read:
CHAPTER  7.1. Delta Smelt Preservation and Restoration Act
1710.
This chapter shall be known, and may be cited, as the Delta Smelt Preservation and Restoration Act of 2016.
1711.
As used in this chapter:
(a) “Banking partner” means any state, federal, or local public agency, or person, that enters into a written agreement with the department to participate in the Delta Smelt Hatchery Program.
(b) “Delta” means the Sacramento-San Joaquin Delta as described in Section 12220 of the Water Code.
(c) “Delta smelt” means the Delta smelt (Hypomesus transpacificus) of the family Osmeridae.
(d) “Mitigation bank” means a publicly or privately owned and operated fish hatchery in which Delta smelt are spawned and reared for the purpose of creating refugia populations or for release into the delta to increase the population of Delta smelt in the delta or for use as stock for scientific studies, and which is constructed consistent with this chapter to mitigate the adverse impacts on Delta smelt populations caused by the activities of banking partners.
(e) “Mitigation banking agreement” means a written agreement between the department and a banking partner that satisfies the incidental take requirements of subdivision (b) of Section 2081 and that provides a uniform procedure and contribution from each banking partner for receiving mitigation bank credits.
(f) “Program” means the Delta Smelt Hatchery Program developed by the department pursuant to Section 1712.
(g) “Refugia” means a captive Delta smelt broodstock population managed to maintain a genetic population representative of the wild population.
1712.
The department shall develop the Delta Smelt Hatchery Program to preserve and restore the Delta smelt. The program shall be implemented by January 1, 2018, and shall do all of the following:
(a) Design a propagation facility for the following intended purposes:
(1) Establishing a genetic refugia population.
(2) Developing broodstock for scientific and educational purposes.
(3) Providing a source of fish for supplementation of wild populations.
(b) Identify three potential sites within, or immediately adjacent to, the delta that are suitable for the design, construction, and operation of a Delta smelt hatchery.
(c) Result in the design and construction of at least one Delta smelt hatchery on a site identified under subdivision (b) by January 1, 2019.
(d) Develop a hatchery management plan that identifies hatchery management and implementation strategies to ensure the success of the program in meeting its goals. The Hatchery Management Plan shall be developed in consultation with the University of California and the United States Fish and Wildlife Service, and other mediums for scientific peer review, as deemed appropriate by the department.
(e) Establish and operate a mitigation bank available to banking partners in order to provide take authorization pursuant to Section 2081 to participating banking partners.
(f) Adopt guidelines that establish the procedures for entering into a mitigation banking agreement and the cost of participation in the mitigation bank.
1713.
The department shall enter into mitigation banking agreements with banking partners for the purpose of providing take authorization under Section 2081. Mitigation banking agreements shall meet both of the following requirements:
(a) Establish a requirement for the banking partner to participate in the mitigation bank at a level that is roughly proportional to the impact of the banking partner’s activity on Delta smelt.
(b) Set the financial contribution of the banking partner, together with a method of making financial contributions to the mitigation bank, that provide sufficient certainty that financing is available for that banking partner’s share of the annual operations of the Delta smelt hatchery in an amount sufficient to satisfy the mitigation obligation of the banking partner under the permit issued pursuant to Section 1714.
1714.
If the department enters into a mitigation banking agreement that satisfies all of the requirements of this chapter, the department shall issue a permit authorizing an incidental take under Section 2081 to participating banking partners.
1715.
Delta smelt reared for refugia populations, scientific research, and population augmentation shall be counted towards mitigation credits. Hatchery production in excess of the obligations of mitigation banking partners shall create mitigation credits available to meet the obligations of future activities. Banking credits shall be available to banking partners to satisfy mitigation obligations required under the federal Endangered Species Act, consistent with a mitigation plan approved by the United States Fish and Wildlife Service.
1716.
Funding necessary for the long-term operation and maintenance of the program and a Delta smelt hatchery shall be provided from revenues received from banking partners. Funds provided through banking agreements shall be dedicated to program implementation and not used for other purposes.
1717.
Costs for the planning, design, and construction of a Delta smelt hatchery, including purchase of any necessary lands, easements, or rights-of-way shall be made from funds allocated pursuant to Section 1718. An audit of all funds received for the program shall be conducted every three years.
1718.
The sum of dollars ($____) is hereby appropriated from ____ to the department for expenditure without regard to fiscal year, for purposes of implementing this chapter.
1719.
The department may contract with public agencies outside of state government for the planning, design, construction, and operation of one or more Delta smelt hatcheries.
1720.
The department may partner with the United States Fish and Wildlife Service in establishing and operating a Delta smelt hatchery, provided that all requirements of this chapter shall be complied with.
1721.
The department shall cooperate on the development of long-term comprehensive Delta ecosystem solutions to ensure consistency with this chapter. A program implemented pursuant to Section 1712 shall be included as one of the actions incorporated into any state-adopted comprehensive Delta ecosystem program.
1722.
Nothing in this chapter 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 the California Endangered Species Act.

Summary: Existing law requires the Fish and Game Commission to establish fish hatcheries for the purposes of stocking the waters of California with fish, and requires the Department of Fish and Wildlife to maintain and operate those hatcheries.
This bill would enact the Delta Smelt Preservation and Restoration Act of 2016. The act would require the department to develop a Delta smelt hatchery program to preserve and restore the Delta smelt. The bill would require the department to enter into mitigation banking agreements with banking partners for the purpose of providing take authorizations to banking partners and to obtain funding from banking agreements.
The bill would appropriate an unspecified amount of money from an unspecified source to the department for purposes of implementing the bill’s provisions.