Sec. 1013. Factoring increased real-time monitoring and updated science into Delta smelt management
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The Director shall use the best scientific and commercial data available to implement, continuously evaluate, and refine or amend, as appropriate, the reasonable and prudent alternative described in the smelt biological opinion, and any successor opinions or court order. The Secretary shall make all significant decisions under the smelt biological opinion, or any successor opinions that affect Central Valley Project and State Water Project operations, in writing, and shall document the significant facts upon which such decisions are made, consistent with section 706 of title 5, United States Code.
The Secretary shall conduct additional surveys, on an annual basis at the appropriate time of the year based on environmental conditions, in collaboration with other Delta science interests. In implementing this section, the Secretary shall— use the most accurate survey methods available for the detection of Delta smelt to determine the extent that adult Delta smelt are distributed in relation to certain levels of turbidity, or other environmental factors that may influence salvage rate; and use results from appropriate survey methods for the detection of Delta smelt to determine how the Central Valley Project and State Water Project may be operated more efficiently to minimize salvage while maximizing export pumping rates without causing a significant negative impact on the long-term survival of the Delta smelt.
During the period beginning on December 1, 2015, and ending March 31, 2016, and in each successive December through March period, if suspended sediment loads enter the Delta from the Sacramento River and the suspended sediment loads appear likely to raise turbidity levels in the Old River north of the export pumps from values below 12 Nephelometric Turbidity Units
(NTU)to values above 12 NTU, the Secretary shall— conduct daily monitoring using appropriate survey methods at locations including, but not limited to, the vicinity of Station 902 to determine the extent that adult Delta smelt are moving with turbidity toward the export pumps; and use results from the monitoring surveys referenced in paragraph
(A)to determine how increased trawling can inform daily real-time Central Valley Project and State Water Project operations to minimize salvage while maximizing export pumping rates without causing a significant negative impact on the long-term survival of the Delta smelt. Within 12 months of the date of enactment of this title, and at least once every 5 years thereafter, the Secretary shall— evaluate whether the monitoring program under subsection (b), combined with other monitoring programs for the Delta, is providing sufficient data to inform Central Valley Project and State Water Project operations to minimize salvage while maximizing export pumping rates without causing a significant negative impact on the long-term survival of the Delta smelt; and determine whether the monitoring efforts should be changed in the short or long term to provide more useful data. No later than January 1, 2016, and at least every five years thereafter, the Secretary, in collaboration with the California Department of Fish and Wildlife, the California Department of Water Resources, public water agencies, and other interested entities, shall implement new targeted sampling and monitoring specifically designed to understand Delta smelt abundance, distribution, and the types of habitat occupied by Delta smelt during all life stages. The Delta smelt distribution study shall, at a minimum— include recording water quality and tidal data; be designed to understand Delta smelt abundance, distribution, habitat use, and movement throughout the Delta, Suisun Marsh, and other areas occupied by the Delta smelt during all seasons; consider areas not routinely sampled by existing monitoring programs, including wetland channels, near-shore water, depths below 35 feet, and shallow water; and use survey methods, including sampling gear, best suited to collect the most accurate data for the type of sampling or monitoring. In implementing the provisions of the smelt biological opinion, or any successor biological opinion or court order, pertaining to management of reverse flow in the Old and Middle Rivers, the Secretary shall— consider the relevant provisions of the biological opinion or any successor biological opinion; to maximize Central Valley project and State Water Project water supplies, manage export pumping rates to achieve a reverse OMR flow rate of −5,000 cubic feet per second unless information developed by the Secretary under paragraphs
(3)and
(4)leads the Secretary to reasonably conclude that a less negative OMR flow rate is necessary to avoid a negative impact on the long-term survival of the Delta smelt. If information available to the Secretary indicates that a reverse OMR flow rate more negative than −5,000 cubic feet per second can be established without an imminent negative impact on the long-term survival of the Delta smelt, the Secretary shall manage export pumping rates to achieve that more negative OMR flow rate; document in writing any significant facts about real-time conditions relevant to the determinations of OMR reverse flow rates, including— whether targeted real-time fish monitoring in the Old River pursuant to this section, including monitoring in the vicinity of Station 902, indicates that a significant negative impact on the long-term survival of the Delta smelt is imminent; and whether near-term forecasts with available salvage models show under prevailing conditions that OMR flow of −5,000 cubic feet per second or higher will cause a significant negative impact on the long-term survival of the Delta smelt; show in writing that any determination to manage OMR reverse flow at rates less negative than −5,000 cubic feet per second is necessary to avoid a significant negative impact on the long-term survival of the Delta smelt, including an explanation of the data examined and the connection between those data and the choice made, after considering— the distribution of Delta smelt throughout the Delta; the potential effects of documented, quantified entrainment on subsequent Delta smelt abundance; the water temperature; other significant factors relevant to the determination; and whether any alternative measures could have a substantially lesser water supply impact; and for any subsequent biological opinion, make the showing required in paragraph
(4)for any determination to manage OMR reverse flow at rates less negative than the most negative limit in the biological opinion if the most negative limit in the biological opinion is more negative than −5,000 cubic feet per second. No later than December 1, 2015, the Commissioner and the Director will execute a Memorandum of Understanding
(MOU)to ensure that the smelt biological opinion is implemented in a manner that maximizes water supply while complying with applicable laws and regulations. If that MOU alters any procedures set out in the biological opinion, there will be no need to reinitiate consultation if those changes will not have a significant negative impact on the long-term survival on listed species and the implementation of the MOU would not be a major change to implementation of the biological opinion. Any change to procedures that does not create a significant negative impact on the long-term survival to listed species will not alter application of the take permitted by the incidental take statement in the biological opinion under section 7(o)(2) of the Endangered Species Act of 1973. Within 90 days of the enactment of this title, the Secretary is directed, in consultation with the California Department of Water Resources to revise the method used to calculate reverse flow in Old and Middle Rivers for implementation of the reasonable and prudent alternatives in the smelt biological opinion and the salmonid biological opinion, and any succeeding biological opinions, for the purpose of increasing Central Valley Project and State Water Project water supplies. The method of calculating reverse flow in Old and Middle Rivers shall be reevaluated not less than every five years thereafter to achieve maximum export pumping rates within limits established by the smelt biological opinion, the salmonid biological opinion, and any succeeding biological opinions.