Sec. 303. Temporary operational flexibility to capture peak flows from winter storms
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/bill/114/s/2533/is/section-303A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
The Secretaries of the Interior and Commerce shall take no action pursuant to this Act that would cause additional adverse effects on the listed fish species beyond the range of effects anticipated to occur to the listed fish species for the duration of the applicable biological opinion, using the best scientific and commercial data available. Pursuant to the adaptive management provisions of the smelt biological opinion and the salmonid biological opinion, the Secretaries of the Interior and Commerce shall monitor in real time to determine the location and densities of listed fish species relative to the pumps and Delta conditions, in order to identify— opportunities to increase water pumping without violating the standard in subsection
(a)or other environmental laws and regulations; and circumstances where it is necessary to decrease water pumping to protect listed fish species. When consistent with the environmental protection mandate in subsection
(a)and other environmental protections under subsection (f), the Secretaries of the Interior and Commerce, through the drought contingency plans, shall evaluate and may authorize the Central Valley Project and the State Water Project, combined, to operate at levels that result in daily average OMR flows more negative than −5,000 cubic feet per second (based on United States Geological Survey gauges on OMR) to capture peak flows during storm-related events, in accordance with subsections (d), (e), and (f). In determining additional adverse effects on any listed fish species beyond the range of effects anticipated to occur to the listed fish species for the duration of the smelt biological opinion or salmonid biological opinion, using the best scientific and commercial data available, the Secretaries of the Interior and Commerce may consider the following factors: The real-time distribution of listed species. Relevant physical parameters including projected inflows, turbidity, salinities, and tidal cycles. Any other factor under the relevant biological opinion. The actions of the Secretaries of the Interior and Commerce pursuant to this section shall be consistent with applicable regulatory requirements under State law. During the first flush of sediment out of the Delta during each water year, based on objective evidence and notwithstanding the other provisions of this subsection, the Secretary of the Interior shall manage OMR flow pursuant to the portion of the smelt biological opinion that protects adult Delta smelt from the first flush if required to do so by the smelt biological opinion. This section on capturing peak flows from winter storms shall not affect the application of the salmonid biological opinion during the period beginning on April 1 and ending on May 31, unless the Secretary of Commerce determines that this section can be applied during part or all of that time period to provide emergency water supply relief without resulting in additional adverse effects beyond those anticipated to occur for the duration the salmonid biological opinion. In addition to any other actions to benefit water supply, the Secretaries of the Interior and Commerce shall consider allowing through-Delta water transfers to occur during the period referred to in subparagraph (A), in accordance with section 302(b)(8). In implementing this section, the Commissioner, in coordination with the Director, the Assistant Administrator, and the California Department of Fish and Wildlife, shall carry out a monitoring program and other data gathering activities— to ensure incidental take levels are not exceeded; and to identify potential negative impacts, if any. When exercising their authorities pursuant to drought contingency plans to capture peak flows pursuant to subsection (c), the Secretaries of the Interior and Commerce shall not count any day during that period toward the 5-day or 14-day running averages of tidally filtered daily OMR flow requirements under the smelt biological opinion or the salmonid biological opinion unless doing so is required to avoid additional adverse effects on listed fish species beyond the range of effects anticipated to occur to the listed fish species for the duration of the biological opinions, using the best scientific and commercial data available.