Sec. 103. Temporary operational flexibility for first few storms of the water year
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/bill/113/hr/5781/eh/section-103·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
Consistent with avoiding a negative impact on the long-term survival in the short-term upon listed fish species beyond the range of those authorized under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ) and other environmental protections under subsection (d), the Secretaries shall authorize the Central Valley Project and the State Water Project, combined, to operate at levels that result in negative Old and Middle River flows at -7500 cubic feet per second (based on United States Geological Survey gauges on Old and Middle Rivers) daily average for 28 cumulative days after October 1, as described in subsection (b). The temporary operational flexibility described in subsection
(a)shall be authorized on days that the California Department of Water Resources determines the daily average river flow of the Sacramento River is at, or above, 17,000 cubic feet per second as measured at the Sacramento River at Freeport gauge maintained by the United States Geologic Survey. In carrying out this section, the Secretaries may continue to impose any requirements under the smelt and salmonid biological opinions during any period of temporary operational flexibility as they determine are reasonably necessary to avoid additional negative impacts on the long-term survival of a listed fish species beyond the range of those authorized under the Endangered Species Act of 1973. The Secretaries’ actions under this section shall be consistent with applicable regulatory requirements under state law, including State Water Resources Control Board Decision 1641, as it may be implemented in any given year. During the first flush of sediment out of the Delta in each water year, and provided that such determination is based upon objective evidence, OMR flow may be managed at rates less negative than -5000 cubic feet per second for a minimum duration to avoid movement of adult Delta smelt (Hypomesus transpacificus) to areas in the southern Delta that would be likely to increase entrainment at Central Valley Project and State Water Project pumping plants. This section shall not affect the application of the salmonid biological opinion from April 1 to May 31, unless the Secretary of Commerce finds that some or all of such applicable requirements may be adjusted during this time period to provide emergency water supply relief without resulting in additional adverse effects beyond those authorized under the Endangered Species Act of 1973. In addition to any other actions to benefit water supply, the Secretary and the Secretary of Commerce shall consider allowing through-Delta water transfers to occur during this period. During operations under this section, the Secretary of the Interior, in coordination with the Fish and Wildlife Service, National Marine Fisheries Service, and California Department of Fish and Wildlife, shall undertake a monitoring program and other data gathering to ensure incidental take levels are not exceeded, and to identify potential negative impacts and actions, if any, necessary to mitigate impacts of the temporary operational flexibility to species listed under the Endangered Species Act of 1973. If, before temporary operational flexibility has been implemented on 28 cumulative days, the Secretaries operate the Central Valley Project and the State Water Project combined at levels that result in Old and Middle River flows less negative than -7500 cubic feet per second during days of temporary operational flexibility as defined in subsection (b), the duration of such operation shall not be counted toward the 28 cumulative days specified in subsection (a). If necessary to implement the provisions of this section, the Secretary of the Interior shall use the emergency consultation procedures under the Endangered Species Act of 1973 and its implementing regulation at section 402.05, title 50, Code of Federal Regulations, to temporarily adjust the operating criteria under the biological opinions, solely for the 28 cumulative days of temporary operational flexibility— no more than necessary to achieve the purposes of this section consistent with the environmental protections in subsections
(c)and (d); and including, as appropriate, adjustments to ensure that the actual flow rates during the periods of temporary operational flexibility do not count toward the 5-day and 14-day running averages of tidally filtered daily Old and Middle River flow requirements under the biological opinions. At the conclusion of the 28 cumulative days of temporary operational flexibility, the Secretary of the Interior shall not reinitiate consultation on these adjusted operations, and no mitigation shall be required, if the effects on listed fish species of these operations under this section remain within the range of those authorized under the Endangered Species Act. If the Secretary of the Interior reinitiates consultation, no mitigation measures shall be required. In articulating the determinations required under this section, the Secretaries shall fully satisfy the requirements herein but shall not be expected to provide a greater level of supporting detail for the analysis than feasible to provide within the short time frame permitted for timely decision-making in response to changing conditions in the Delta.
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Sec. 103
Temporary operational flexibility for first few storms of the water year
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