Sec. 1022. Process for ensuring salmonid management is responsive to new science
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/bill/114/s/2012/eah/section-1022·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
The reasonable and prudent alternative described in the salmonid biological opinion allows for and anticipates adjustments in Central Valley Project and State Water Project operation parameters to reflect the best scientific and commercial data currently available, and authorizes efforts to test and evaluate improvements in operations that will meet applicable regulatory requirements and maximize Central Valley Project and State Water Project water supplies and reliability. Implementation of the reasonable and prudent alternative described in the salmonid biological opinion shall be adjusted accordingly as new scientific and commercial data are developed.
The Commissioner and the Assistant Administrator shall fully utilize these authorities as described below. No later than December 31, 2016, and at least annually thereafter: The Commissioner, with the assistance of the Assistant Administrator, shall examine and identify adjustments to the initiation of Action IV.2.3 as set forth in the Biological Opinion and Conference Opinion on the Long-Term Operations of the Central Valley Project and State Water Project, Endangered Species Act Section 7 Consultation, issued by the National Marine Fisheries Service on June 4, 2009, pertaining to negative OMR flows, subject to paragraph (5).
The Commissioner, with the assistance of the Assistant Administrator, shall examine and identify adjustments in the timing, triggers or other operational details relating to the implementation of pumping restrictions in Action IV.2.1 pertaining to the inflow to export ratio, subject to paragraph (5). Pursuant to the consultation and assessments carried out under paragraphs
(1)and
(2)of this subsection, the Commissioner and the Assistant Administrator shall jointly make recommendations to the Secretary of the Interior and to the Secretary on adjustments to project operations that, in the exercise of the adaptive management provisions of the salmonid biological opinion, will reduce water supply impacts of the salmonid biological opinion on the Central Valley Project and the California State Water Project and are consistent with the requirements of applicable law and as further described in subsection (c). The Secretary and the Secretary of the Interior shall direct the Commissioner and Assistant Administrator to implement recommended adjustments to Central Valley Project and State Water Project operations for which the conditions under subsection
(c)are met. The Assistant Administrator and the Commissioner shall review and identify adjustments to Central Valley Project and State Water Project operations with water supply restrictions in any successor biological opinion to the salmonid biological opinion, applying the provisions of this section to those water supply restrictions where there are references to Actions IV.2.1 and IV.2.3. After reviewing the recommendations under subsection (b), the Secretary of the Interior and the Secretary shall direct the Commissioner and the Assistant Administrator to implement those operational adjustments, or any combination, for which, in aggregate— the net effect on listed species is equivalent to those of the underlying project operational parameters in the salmonid biological opinion, taking into account both— efforts to minimize the adverse effects of the adjustment to project operations; and whatever additional actions or measures may be implemented in conjunction with the adjustments to operations to offset the adverse effects to listed species, consistent with (d), that are in excess of the adverse effects of the underlying operational parameters, if any; and the effects of the adjustment can be reasonably expected to fall within the incidental take authorizations. When examining and identifying opportunities to offset the potential adverse effect of adjustments to operations under subsection (c)(1)(B), the Commissioner and the Assistant Administrator shall take into account the potential species survival improvements that are likely to result from other measures which, if implemented in conjunction with such adjustments, would offset adverse effects, if any, of the adjustments. When evaluating offsetting measures, the Commissioner and the Assistant Administrator shall consider the type, timing and nature of the adverse effects, if any, to specific species and ensure that the measures likely provide equivalent overall benefits to the listed species in the aggregate, as long as the change will not cause a significant negative impact on the long-term survival of a listed salmonid species. Not later than December 31, 2015, and every five years thereafter, the Assistant Administrator shall, in collaboration with the Director of the California Department of Fish and Wildlife, based on the best scientific and commercial data available and for each listed salmonid species, issue estimates of the increase in through-Delta survival the Secretary expects to be achieved— through restrictions on export pumping rates as specified by Action IV.2.3 as compared to limiting OMR flow to a fixed rate of −5,000 cubic feet per second within the time period Action IV.2.3 is applicable, based on a given rate of San Joaquin River inflow to the Delta and holding other relevant factors constant; through San Joaquin River inflow to export restrictions on export pumping rates specified within Action IV.2.1 as compared to the restrictions in the April/May period imposed by the State Water Resources Control Board decision D–1641, based on a given rate of San Joaquin River inflow to the Delta and holding other relevant factors constant; through physical habitat restoration improvements; through predation control programs; through the installation of temporary barriers, the management of Cross Channel Gates operations, and other projects affecting flow in the Delta; through salvaging fish that have been entrained near the entrance to Clifton Court Forebay; through any other management measures that may provide equivalent or better protections for listed species while maximizing export pumping rates without causing a significant negative impact on the long-term survival of a listed salmonid species; and through development and implementation of conservation hatchery programs for salmon and steelhead to aid in the recovery of listed salmon and steelhead species. To the maximum extent practicable, the Assistant Administrator shall make quantitative estimates of survival such as a range of percentage increases in through-Delta survival that could result from the management measures, and if the scientific information is lacking for quantitative estimates, shall do so on qualitative terms based upon the best available science. If the Assistant Administrator provides qualitative survival estimates for a species resulting from one or more management measures, the Secretary shall, to the maximum extent feasible, rank the management measures described in subsection
(e)in terms of their most likely expected contribution to increased through-Delta survival relative to the other measures. If at the time the Assistant Administrator conducts the reviews under subsection (b), the Secretary has not issued an estimate of increased through-Delta survival from different management measures pursuant to subsection (e), the Secretary shall compare the protections to the species from different management measures based on the best scientific and commercial data available at the time. For the purposes of this subsection and subsection (c)— the alternative management measure or combination of alternative management measures identified in paragraph
(2)shall be known as the equivalent alternative measure ; the existing measure or measures identified in subparagraphs
(2)(A), (B), (C), or
(D)shall be known as the equivalent existing measure ; and an equivalent increase in through-Delta survival rates for listed salmonid species shall mean an increase in through-Delta survival rates that is equivalent when considering the change in through-Delta survival rates for the listed salmonid species in the aggregate, and not the same change for each individual species, as long as the change in survival rates will not cause a significant negative impact on the long-term survival of a listed salmonid species. As part of the reviews of project operations pursuant to subsection (b), the Assistant Administrator shall determine whether any alternative management measures or combination of alternative management measures listed in subsection
(3)through
(8)would provide an increase in through-Delta survival rates for listed salmonid species that is equivalent to the increase in through-Delta survival rates for listed salmonid species from the following: Through restrictions on export pumping rates as specified by Action IV.2.3, as compared to limiting OMR flow to a fixed rate of −5,000 cubic feet per second within the time period Action IV.2.3 is applicable. Through restrictions on export pumping rates as specified by Action IV.2.3, as compared to a modification of Action IV.2.3 that would provide additional water supplies, other than that described in subparagraph (A). Through San Joaquin River inflow to export restrictions on export pumping rates specified within Action IV.2.1, as compared to the restrictions in the April/May period imposed by the State Water Resources Control Board decision D–1641. Through San Joaquin River inflow to export restrictions on export pumping rates specified within Action IV.2.1, as compared to a modification of Action IV.2.1 that would reduce water supply impacts of the salmonid biological opinion on the Central Valley Project and the California State Water Project, other than that described in subparagraph (C). If the Assistant Administrator identifies an equivalent alternative measure pursuant to paragraph (2), the Assistant Administrator shall determine whether— it is technically feasible and within Federal jurisdiction to implement the equivalent alternative measure; the State of California, or subdivision thereof, or local agency with jurisdiction has certified in writing within 10 calendar days to the Assistant Administrator that it has the authority and capability to implement the pertinent equivalent alternative measure; or the adverse consequences of doing so are less than the adverse consequences of the equivalent existing measure, including a concise evaluation of the adverse consequences to other affected interests. If the Assistant Administrator makes the determinations in subparagraph (3)(A) or (3)(B), the Commissioner shall adjust project operations to implement the equivalent alternative measure in place of the equivalent existing measure in order to increase export rates of pumping to the greatest extent possible while maintaining a net combined effect of equivalent through-Delta survival rates for the listed salmonid species. Among the adjustments to the project operations considered through the adaptive management process under this section, the Assistant Administrator and the Commissioner shall— evaluate the effects on listed salmonid species and water supply of the potential adjustment to operational criteria described in subparagraph (B); and consider requiring that before some or all of the provisions of Actions IV.2.1. or IV.2.3 are imposed in any specific instance, the Assistant Administrator show that the implementation of these provisions in that specific instance is necessary to avoid a significant negative impact on the long-term survival of a listed salmonid species. The Assistant Administrator, the Director, and the Commissioner, in coordination with State officials as appropriate, shall establish operational criteria to coordinate management of OMR flows under the smelt and salmonid biological opinions, in order to take advantage of opportunities to provide additional water supplies from the coordinated implementation of the biological opinions. The Assistant Administrator and the Commissioner shall document the effects of any adaptive management decisions related to the coordinated operation of the smelt and salmonid biological opinions that prioritizes the maintenance of one species at the expense of the other. Notwithstanding the calendar based triggers described in the salmonid biological opinion Reasonable and Prudent Alternative (RPA), the Assistant Administrator and the Commissioner shall not limit OMR reverse flow to −5,000 cubic feet per second unless current monitoring data indicate that this OMR flow limitation is reasonably required to avoid a significant negative impact on the long-term survival of a listed salmonid species. If the quantitative estimates of through-Delta survival established by the Secretary for the adjustments in subsection (b)(2) exceed the through-Delta survival established for the RPAs, the Secretary shall evaluate and implement the management measures in subsection (b)(2) as a prerequisite to implementing the RPAs contained in the Salmonid Biological Opinion. Consistent with section 706 of title 5, United States Code, decisions of the Assistant Administrator and the Commissioner described in subsections
(b)through
(j)shall be made in writing, on the basis of best scientific and commercial data currently available, and shall include an explanation of the data examined at the connection between those data and the decisions made.