Sec. 448. Temporary operational flexibility for first few storms of the water year
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Consistent with avoiding an immediate significant negative impact on the long-term survival upon listed fish species over and above the range of impacts authorized under the Endangered Species Act of 1973 and other environmental protections under subsection (d), the Secretary of the Interior and the Secretary of Commerce shall authorize the Central Valley Project and the California State Water Project, combined, to operate at levels that result in negative OMR flows at −7,500 cubic feet per second (based on United States Geological Survey gauges on Old and Middle Rivers) daily average as described in subsections
(b)and
(c)to capture peak flows during storm events. The temporary operational flexibility described in subsection
(a)shall be authorized on days that the California Department of Water Resources determines the net Sacramento-San Joaquin River Delta outflow index is at, or above, 13,000 cubic feet per second. In carrying out this section, the Secretary of the Interior and the Secretary of Commerce may continue to impose any requirements under the smelt biological opinion and salmonid biological opinion during any period of temporary operational flexibility as they determine are reasonably necessary to avoid additional significant negative impacts on the long-term survival of a listed fish species over and above the range of impacts authorized under the Endangered Species Act of 1973, provided that the requirements imposed do not reduce water supplies available for the Central Valley Project and the California State Water Project. The actions of the Secretary of the Interior and the Secretary of Commerce under this section shall be consistent with applicable regulatory requirements under State law. The foregoing does not constitute a waiver of sovereign immunity. During the first flush of sediment out of the Sacramento-San Joaquin River 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 −5,000 cubic feet per second for a minimum duration to avoid movement of adult Delta smelt (Hypomesus transpacificus) to areas in the southern Sacramento-San Joaquin River Delta that would be likely to increase entrainment at Central Valley Project and California 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, based on the best scientific and commercial data available, 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 over and above the range of impacts authorized under the Endangered Species Act of 1973. In addition to any other actions to benefit water supply, the Secretary of the Interior and the Secretary of Commerce shall consider allowing through-Delta water transfers to occur during this period if they can be accomplished consistent with section 3405(a)(1)(H) of the Central Valley Project Improvement Act. Water transfers solely or exclusively through the California State Water Project that do not require any use of Reclamation facilities or approval by Reclamation are not required to be consistent with section 3405(a)(1)(H) of the Central Valley Project Improvement Act. During operations under this section, the Commissioner of Reclamation, in coordination with the United States Fish and Wildlife Service, National Marine Fisheries Service, and California Department of Fish and Wildlife, shall undertake expanded monitoring programs and other data gathering to improve Central Valley Project and California State Water Project water supplies, to ensure incidental take levels are not exceeded, and to identify potential negative impacts, if any, and actions necessary to mitigate impacts of the temporary operational flexibility to species listed under the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ). In recognition of the high outflow levels from the Sacramento-San Joaquin River Delta during the days this section is in effect under subsection (b), the Secretary of the Interior and the Secretary of Commerce shall not count such days toward the 5-day and 14-day running averages of tidally filtered daily Old and Middle River flow requirements under the smelt biological opinion and salmonid biological opinion, as long as the Secretaries avoid significant negative impact on the long-term survival of listed fish species over and above the range of impacts authorized under the Endangered Species Act of 1973. In articulating the determinations required under this section, the Secretary of the Interior and the Secretary of Commerce 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 timeframe permitted for timely decision making in response to changing conditions in the Sacramento-San Joaquin River Delta. The Secretary of the Interior and the Secretary of Commerce shall, through the adaptive management provisions in the salmonid biological opinion, limit OMR reverse flow to −5,000 cubic feet per second based on date-certain triggers in the salmonid biological opinions only if using real-time migration information on salmonids demonstrates that such action is necessary to avoid a significant negative impact on the long-term survival of listed fish species over and above the range of impacts authorized under the Endangered Species Act of 1973. In implementing or at the conclusion of actions under this section, the Secretary of the Interior shall not reinitiate consultation on those adjusted operations if there is no immediate significant negative impact on the long-term survival of listed fish species over and above the range of impacts authorized under the Endangered Species Act of 1973. Any action taken under this section that does not create an immediate significant negative impact on the long-term survival of listed fish species over and above the range of impacts authorized under the Endangered Species Act of 1973 will not alter application of the take permitted by the incidental take statement in those biological opinions under section 7(o)(2) of the Endangered Species Act of 1973.
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Sec. 448
Temporary operational flexibility for first few storms of the water year
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