Sec. 4003. TEMPORARY OPERATIONAL FLEXIBILITY FOR STORM EVENTS
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## SEC. 4003 TEMPORARY OPERATIONAL FLEXIBILITY FOR STORM EVENTS ###
(a)In general ####
(1)Nothing in this subtitle authorizes additional adverse effects on listed species beyond the range of the effects anticipated to occur to the listed species for the duration of the smelt biological opinion or salmonid biological opinion, using the best scientific and commercial data available. ####
(2)When consistent with the environmental protection mandate in paragraph
(1)while maximizing water supplies for Central Valley Project and State Water Project contractors, the Secretary of the Interior and the Secretary of Commerce, through an operations plan, shall evaluate and may authorize the Central Valley Project and the State Water Project, combined, to operate at levels that result in OMR flows more negative than the most negative reverse flow rate prescribed by the applicable biological opinion (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-related events. ###
(b)Factors to Be Considered 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 factors including: ####
(1)The degree to which the Delta outflow index indicates a higher level of flow available for diversion. ####
(2)Relevant physical parameters including projected inflows, turbidity, salinities, and tidal cycles. ####
(3)The real-time distribution of listed species. ###
(c)Other Environmental Protections ####
(1)State law 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. ####
(2)First Sediment Flush During the first flush of sediment out of the Delta in each water year, and provided that such determination is based upon objective evidence, 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. ####
(3)Applicability of opinion 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 on listed salmonid species beyond the range of the effects anticipated to occur to the listed salmonid species for the duration of the salmonid biological opinion using the best scientific and commercial data available. 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 and other applicable law. Water transfers solely or exclusively through the State Water Project are not required to be consistent with subsection (a)(1)(H) of the Central Valley Project Improvement Act. ####
(4)Monitoring During operations under this section, the Commissioner of Reclamation, in coordination with the 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 the efficiency of operations for listed species protections and Central Valley Project and State Water Project water supply to ensure incidental take levels are not exceeded, and to identify potential negative impacts, if any. ###
(d)Effect of High Outflows When exercising their authorities to capture peak flows pursuant to subsection (c), 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, unless doing so is required to avoid additional adverse effects on listed fish species beyond those anticipated to occur through implementation of the smelt biological opinion and salmonid biological opinion using the best scientific and commercial data available. ###
(e)Level of Detail Required for Analysis 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 real-time decisionmaking in response to changing conditions in the Delta.