BILL NUMBER: SB 207 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 31, 2009
INTRODUCED BY Senator Florez
FEBRUARY 23, 2009
An act to add Chapter 2.10 (commencing with Section
35575) to Part 5 of Division 13 of the Water Code, relating to the
Westlands Water District. An act to add Article 7
(commencing with Section 1225) to Chapter 3 of Division 2 of the Fish
and Game Code, relating to the Delta smelt, and making an
appropriation therefo r.
LEGISLATIVE COUNSEL'S DIGEST
SB 207, as amended, Florez. Westlands Water District:
electricity generation and delivery. Delta smelt.
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 Game to maintain
and operate those hatcheries.
This bill would enact the Delta Smelt Preservation and Restoration
Act of 2009. The act would require the department to develop a Delta
smelt hatchery program to preserve and restore the Delta smelt. The
program would operate as a mitigation bank that provides take
authorizations to banking partners and obtains funding from banking
agreements. The bill would transfer an unspecified amount of funds
from an unspecified source which would be continuously appropriated
to the department for purposes of the act.
Existing law, the California Water District Law, specifies the
powers and purposes of a California water district. The district law
authorizes a California water district to construct, maintain, and
operate plants for the generation of hydroelectric power. The
district law authorizes a California water district to use the power
generated from the hydroelectric plant for its own purposes, or for
the production or transmission of water, but prohibits a district
from offering the electricity for sale directly to customers, other
than a public utility or public agency, for any use other than the
production or transmission of water.
This bill would authorize the Westlands Water District, a
California water district, to generate, provide, sell, and deliver
electricity, and to construct, own, lease, operate, contract for, and
maintain any works, facilities, improvements, or property necessary
or convenient for that generation and delivery. The district would be
generally required to use the electricity generated by the district
for the development, conveyance, and delivery of surface water and
groundwater supplies or to implement programs to address subsurface
drainage within the district's boundaries. The bill would authorize
the district to sell, dispose of, or distribute electricity to
others, as specified, only if the district does not require the use
of all electricity generated by the district.
The bill would make legislative findings and declarations
regarding the need for special legislation.
Vote: majority. Appropriation: no yes
. Fiscal committee: no yes .
State-mandated local program: no.
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 (Chapter 1.5 (commencing with Section 2050) of
Division 3 of the Fish and Game Code).
(c) There are many known threats to the smelt in the Delta. Loss
of habitat, reduced food supply, invasive species, rising
temperatures, and toxic contaminates 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 suite 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. Article 7 (commencing with Section 1225)
is added to Chapter 3 of Division 2 of the Fish and Game
Code , to read:
Article 7. Delta Smelt Preservation and Restoration Act
1225. This article shall be known, and may be cited, as the Delta
Smelt Preservation and Restoration Act of 2009.
1226. As used in this article:
(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 article 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 1227.
(g) "Refugia" means a captive Delta smelt broodstock population
managed to maintain a genetic population representative of the wild
population.
1227. The department shall develop the Delta Smelt Hatchery
Program to preserve and restore the Delta smelt. The program shall be
implemented by January 1, 2010, 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, 2011.
(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.
1228. 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 1229.
1229. If the department enters into a mitigation banking
agreement that satisfies all of the requirements of this article, the
department shall issue a permit authorizing an incidental take under
Section 2081 to participating banking partners.
1230. 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 of 1973
(16 U.S.C. Sec. 1531 et seq.), consistent with a mitigation plan
approved by the United States Fish and Wildlife Service.
1231. 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.
1232. Costs for the planning, design, and construction of a Delta
smelt hatchery, including purchase of any necessary lands,
easements, or rights-of-ways shall be made from funds allocated by
Section 1233. An audit of all funds received for the program shall be
conducted every three years.
1233. The sum of ____ is hereby transferred from ____ to the
department for the purposes of implementing this article.
Notwithstanding Section 13340 of the Government Code, the money
transferred is hereby continuously appropriated, without regard to
fiscal year, to the department to implement this article.
1234. 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.
1235. The department may partner with the United States Fish and
Wildlife Service in establishing and operating a Delta smelt
hatchery, if all requirements of this article are complied with.
1236. The department shall cooperate on the development of
long-term comprehensive Delta ecosystem solutions to ensure
consistency with this article. A program implemented pursuant to
Section 1227 shall be included as one of the actions incorporated
into any state-adopted comprehensive Delta ecosystem program.
1237. Notwithstanding any other sections, this article does not
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 (Chapter 1.5 (commencing with Section 2050) of Division 3).
SECTION 1. Chapter 2.10 (commencing with
Section 35575) is added to Part 5 of Division 13 of the Water Code,
to read:
CHAPTER 2.10. WESTLANDS WATER DISTRICT
35575. For purposes of this chapter, "district" means the
Westlands Water District.
35576. The district may generate, provide, sell, and deliver
electricity as provided in this chapter, and may construct, own,
lease, operate, contract for, and maintain any and all works,
facilities, improvements or property, or portions thereof, necessary
or convenient for that generation or delivery or as otherwise
necessary or convenient to carry out this chapter.
35577. Subject to Section 35578, all electricity generated by the
district shall be used by the district solely for the development,
conveyance, and delivery of surface water and groundwater supplies or
to implement programs to address subsurface drainage within the
district's boundaries.
35578. If the district does not require the use of all of the
electricity it generates, the district may do either of the
following:
(a) Sell, dispose of, or distribute surplus electricity for use
outside of its boundaries by other public agencies for the limited
purpose of addressing water supply or subsurface drainage in the
Counties of Fresno, Kings, Madera, or Merced.
(b) Sell surplus electricity in the wholesale market monitored by
the California Independent System Operator, or to electrical
corporations, or local publicly owned electric utilities.
35579. Except as provided in Section 35578, the district may not
provide, sell, dispose of, or distribute electricity to any other
party.
SEC. 2. The Legislature finds and declares that
this act, which is applicable only to the Westlands Water District,
is necessary because of the unique and special electricity
requirements in the area included in the district. It is, therefore,
hereby declared that a general law within the meaning of Section 16
of Article IV of the California Constitution cannot be made
applicable to the district and the enactment of this special law is
necessary for the public good.