Delta Smelt and Hatcheries

The Delta Smelt has received much attention as of late owing to Judge Wanger's injunction substantially reducing water deliveries from federally funded irrigation projects in California, owing to those projects' jeopardizing effects on the smelt.  California Senate Bill 994, voted favorably out of committee this week, may ameliorate the difficulties that have emerged for the state and stakeholders owing to the smelt's ESA protections.  The bill would require the construction of three smelt hatcheries which would provide the basis for a mitigation bank to replace smelt that are killed by the irrigation projects' pumps.  One issue that will likely emerge if the hatcheries are built is whether, and to what extent, the progeny of these hatcheries will be considered the same as naturally raised smelt.  It is the same issue that has been litigated in the context of salmonid populations for the last decade, and which is currently before the Ninth Circuit in two related cases, Trout Unlimited v. Lohn, 9th Cir. Doc. No. 07-35623, and Alsea Valley Alliance v. Lautenbacher, 9th Cir. Doc. No. 07-35824, both of which are awaiting oral argument.