Mwdpra-Ej000534 Confidential Draft Language - Do Not Circulate -- Confidential Draft Language
From: Watts, John (Feinstein)
Please note that I took out the title and section numbers to soften the presentation somewhat. This is the version that I just confidentially shared with Brent Walthall and Melissa Poole below. They both confirmed receipt. Please see the email that I sent to them.
I plan to be in the office most of Sunday making final refinements to the bill text. I have a 9 am meeting with Kiel Weaver and Chris Kearney (Murkowski water staff) to go over the draft language, and I am trying to set up a meeting with Senator Boxer’s staff for Monday as well (I spoke to both Jason and Joaquin about it but have not nailed down a time).
From: Watts, John (Feinstein) Sent: Friday, July 25, 2014 6:13 PM To: ’Walthall, Brent’; Poole, Melissa (MelissaPCboaramountfarminQ.com) Subject: Confidential draft water bill language
Dear Brent and Melissa,
I would appreciate your thoughts on the attached draft water bill language, which I have developed working with Metropolitan and Westlands.
I have attached: an outline of language, smelt language, salmon language, and drought relief language. I also have attached concise salmon and smelt science synopses.
Please do not share this draft or discuss it with anyone other than yourselves at this point.
I would appreciate any feedback you have. Best way to reach me over the weekend is to email me and let me know at what number and times are good to get in touch.
All the best,
John
MWDPRA-EJ000534 CONFIDENTIAL DRAFT LANGUAGE - DO NOT CIRCULATE -- CONFIDENTIAL DRAFT LANGUAGE
DRAFT OUTLINE OF WATER LANGUAGE
ADJUSTING DELTA SMELT MANAGEMENT BASED ON INCREASED REAL-TIME MONITORING AND UPDATED
SCIENCE.
¯ FINDINGS.
¯ DEFINITIONS.
¯ REVISE INCIDENTAL TAKE LIMIT CALCULATION TO REFLECT NEW SCIENCE.
¯ FACTORING INCREASED REAL-TIME MONITORING AND UPDATED SCIENCE INTO DELTA SMELT
MANAGEMENT.
ENSURING SALMONID MANAGEMENT IS RESPONSIVE TO NEW SCIENCE.
¯ FINDINGS.
¯ DEFINITIONS.
¯ SCIENTIFIC STUDIES IN 2015.
¯ PROCESS FOR ENSURING SALMONID MANAGEMENT IS RESPONSIVE TO NEW SCIENCE.
¯ NONNATIVE REDUCTION PILOT PROGRAM IN THE SACRAMENTO-SAN JOAQUIN BAY DELTA AND
ITS TRIBUTARIES.
¯ MARK FISHERY AND HARVEST MANAGEMENT.
¯ NEW ACTIONS TO BENEFIT CENTRAL VALLEY SALMONIDS.
OPERATIONAL FLEXIBILITY AND DROUGHT RELIEF.
¯ FINDINGS.
¯ DEFINITIONS.
¯ OPERATIONAL FLEXIBILITY IN TIMES OF DROUGHT.
¯ OPERATION OF CROSS-CHANNEL GATES.
¯ FLEXIBILITY FOR EXPORT/INFLOW RATIO.
¯ EMERGENCY ENVIRONMENTAL REVIEWS.
¯ PRIORITIZING STATE REVOLVING FUNDS DURING DROUGHTS.
¯ INCREASED FLEXIBILITY FOR REGULAR PROJECT OPERATIONS.
¯ TEMPORARY OPERATIONAL FLEXIBILITY FOR FIRST FEW STORMS OF 2014-2015 WATER YEAR.
¯ EXPEDITING WATER TRANSFERS.
¯ WARREN ACT CONTRACTS. (draftinl~ in process)
¯ ADDITIONAL WARREN ACT CONTRACTS. (draftinl~ in process)
MWDPRA-EJ000535 CONFIDENTIAL DRAFT LANGUAGE - DO NOT CIRCULATE -- CONFIDENTIAL DRAFT LANGUAGE
INCREASING WATER STORAGE.
¯ FINDINGS.
¯ DEFINITIONS.
¯ CALFED STORAGE FEASIBILITY STUDIES.
¯ ENVIRONMENTAL REVIEWS.
¯ ACCOUNTABILITY FOR COMPLETING CALFED STORAGE FEASIBILITY STUDIES.
¯ OTHER STORAGE FEASIBILITY STUDIES.
¯ DAM SAFETY PROJECTS WITH AN INCREASED STORAGE COMPONENT.
¯ NEW EXCHEQUER DAM.
¯ LOS VAQUEROS RESERVOIR.
WATER RIGHTS PROTECTIONS.
¯ PROTECTIONS FOR STATE WATER PROJECT CONTRACTORS. (drafting in process) ¯ AREA OF ORIGIN PROTECTIONS. (drafting in process) ¯ EFFECT ON STATE LAWS.
MISCELLANEOUS.
¯ AUTHORIZED SERVICE AREA.
¯ RESCHEDULED WATER.
¯ FISHERIES DISASTER DECLARATION. (drafting in process)
¯ OVERSIGHT BOARD FOR RESTORATION FUND.
¯ SAN JOAQUIN RIVER RESTORATION SETTLEMENT. (contingent on agreement among settling parties)
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OPERATIONAL FLEXIBILITY AND DROUGHT RELIEF.
¯ FINDINGS.
¯ DEFINITIONS.
¯ OPERATIONAL FLEXIBILITY IN TIMES OF DROUGHT.
¯ OPERATION OF CROSS-CHANNEL GATES.
¯ FLEXIBILITY FOR EXPORT/INFLOW RATIO.
¯ EMERGENCY ENVIRONMENTAL REVIEWS.
¯ PRIORITIZING STATE REVOLVING FUNDS DURING DROUGHTS.
¯ INCREASED FLEXIBILITY FOR REGULAR PROJECT OPERATIONS.
¯ TEMPORARY OPERATIONAL FLEXIBILITY FOR FIRST FEW STORMS OF 2014-2015 WATER YEAR.
¯ EXPEDITING WATER TRANSFERS.
¯ WARREN ACT CONTRACTS. (drafting in process)
¯ ADDITIONAL WARREN ACT CONTRACTS. (drafting in process)
Section . FINDINGS.
Congress finds that--
(1) as established in the Proclamation of a State of Emergency issued by the Governor of the State on January 17, 2014, the State is experiencing record dry conditions;
(2) extremely dry conditions have persisted in the State since 2012, and the drought conditions are likely to persist into the future;
(3) the water supplies of the State are at record-low levels, as indicated by a statewide average snowpack of 12 percent of the normal average for winter as of February 1, 2014, and the fact that all major Central Valley Project reservoir levels are at or below 50 percent of the capacity of the reservoirs as of April 1, 2014;
(4) the 2013-2014 drought constitutes a serious emergency posing immediate and severe risks to human life and safety and to the environment throughout the State;
(5) the emergency requires--
(A) immediate and credible action that respects the complexity of the water system of the State and the importance of the water system to the entire State; and
(B) policies that do not pit stakeholders against one another, which history has shown only leads to costly litigation that benefits no one and prevents any real solutions;
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(6) Federal law (including regulations) directly authorizes expedited decisionmaking procedures and environmental and public review procedures to enable timely and appropriate implementation of actions to respond to such a type and severity of emergency; and
(7) the serious emergency posed by the 2013-2014 drought in the State fully satisfies the conditions necessary for the exercise of emergency decisionmaking, analytical, and public review requirements under--
(A) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.);
(B) the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.);
(C) water control management procedures of the Corps of Engineers described in section 222.5 of title 33, Code of Federal Regulations (including successor regulations); and
(D) the Reclamation States Emergency Drought Relief Act of 1991 (Public Law 102-250; 106 Stat. 53).
Section . DEFINITIONS.
In this title:
(1) CENTRAL VALLEY PROJECT.--The term "Central Valley Project" has the meaning given the term in section 3403 of the Central Valley Project Improvement Act (106 Stat. 4707).
(2) KLAMATH PROJECT.--The term "Klamath Project" means the Bureau of Reclamation project in the States of California and Oregon, as authorized under the Act of June 17, 1902 (32 Stat. 388, chapter 1093).
(3) RECLAMATION PROJECT.--The term "Reclamation Project" means a project constructed pursuant to the authorities of the reclamation laws and whose facilities are wholly or partially located in the State.
(4) SECRETARI ES.--The te rm "Secreta ries" mea ns--
(A) the Administrator of the Environmental Protection Agency;
(B) the Secretary of Agriculture;
(C) the Secretary of Commerce; and
(D) the Secretary of the Interior.
(5) STATE.--The term "State" means the State of California.
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(6) STATE WATER PROJECT.--The term "State Water Project" means the water project described by California Water Code section 11550 et seq., and operated by the California Department of Water Resources.
Section ¯ OPERATIONAL FLEXIBILITY IN TIMES OF DROUGHT,
(a) Water supplies.--
(1) IN GENERAL.--In response to the declaration of a state of drought emergency by the Governor of California and for the period of time such a drought declaration remains in effect, the Secretaries shall provide the maximum quantity of water supplies possible to Central Valley Project agricultural, municipal and industrial, and refuge service and repayment contractors, State Water Project contractors, and any other locality or municipality in the State, by approving, consistent with applicable laws (including regulations), projects and operations to provide additional water supplies as quickly as possible based on available information to address the emergency conditions.
(2) APPLICATION.--Paragraph (1) applies to projects or operations involving the Klamath Project if the projects or operations would benefit Federal water contractors in the State.
(b) Limitation.--Nothing in this section allows agencies to approve projects--
(1) that would otherwise require congressional authorization; or
(2) without following procedures required by applicable law.
(c) Administration.--In carrying out subsection (a), the Secretaries shall, consistent with applicable laws (including regulations), in response to the declaration of a state of drought emergency by the Governor of California and for the period of time such a drought declaration remains in effect --
(1) issue all necessary permit decisions under the authority of the Secretaries within 30 days of receiving a completed application by the State to place and use temporary barriers or operable gates in Delta channels to improve water quantity and quality for State Water Project and Central Valley Project South of Delta water contractors and other water users, which barriers or gates should provide benefits for species protection and in-Delta water user water quality and shall be designed such that formal consultations under section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1536) would not be necessary;
(2)(A) require the Director of the United States Fish and Wildlife Service and the Commissioner of the Bureau of Reclamation to complete all requirements under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) necessary to make final permit decisions on water transfer requests associated
MWDPRA-EJ000539 CONFIDENTIAL STAFF DRAFT LANGUAGE ****** DO NOT DISTRIBUTE ********* with voluntarily fallowing nonpermanent crops in the State, within 30 days of receiving such a request; and
(B) require the Director of the United States Fish and Wildlife Service to allow any water transfer request associated with fallowing to maximize the quantity of water supplies available for nonhabitat uses as long as the fallowing and associated water transfer are in compliance with applicable Federal laws {including regulations);
(3) adopt a 1:1 inflow to export ratio for the increment of increased flow of the San Joaquin River, as measured as a 3-day running average at Vernalis during the period from April 1 through May 31, resulting from voluntary transfers and exchanges of water supplies, provided that a proposed transfer or exchange under this paragraph, like other proposed transfers, may only proceed if the Secretary determines that its environmental effects are consistent with applicable law (including regulations); and
(4) make any WaterSMART grant funding allocated to the State available on a priority and expedited basis for projects in the State that--
(A) provide emergency drinking and municipal water supplies to localities in a quantity necessary to meet minimum public health and safety needs;
(B) prevent the loss of permanent crops;
(C) minimize economic losses resulting from drought conditions; or
(D) provide innovative water conservation tools and technology for agriculture and urban water use that can have immediate water supply benefits.
(d) Other agencies.--To the extent that a Federal agency other than agencies headed by the Secretaries has a role in approving projects described in subsections (a) and (c), this section shall apply to those Federal agencies.
(e) Accelerated project decision and elevation.--
(1) IN GENERAL.--Upon the request of the State, the heads of Federal agencies shall use the expedited procedures under this subsection to make final decisions relating to a Federal project or operation to provide additional water supplies or address emergency drought conditions pursuant to subsections (a) and (c).
(2) REQUEST FOR RESOLUTION.--
(A) IN GENERAL.--Upon the request of the State, the head of an agency referred to in subsection (a), or the head of another Federal agency responsible for carrying out a review of a project, as applicable, the Secretary of the Interior shall convene a final project decision
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MWDPRA-EJ000540 CONFIDENTIAL STAFF DRAFT LANGUAGE ****** DO NOT DISTRIBUTE ********* meeting with the heads of all relevant Federal agencies to decide whether to approve a project to provide emergency water supplies.
(B) MEETING.--The Secretary of the Interior shall convene a meeting requested under subparagraph (A) not later than 7 days after receiving the meeting request.
(3) NOTIFICATION.--Upon receipt of a request for a meeting under this subsection, the Secretary of the Interior shall notify the heads of all relevant Federal agencies of the request, including the project to be reviewed and the date for the meeting.
(4) DECISION.--Not later than 10 days after the date on which a meeting is requested under paragraph (2), the head of the relevant Federal agency shall issue a final decision on the project.
(5) MEETING CONVENED BY SECRETARY.--The Secretary of the Interior may convene a final project decision meeting under this subsection at any time, at the discretion of the Secretary, regardless of whether a meeting is requested under paragraph (2).
SEC. OPERATION OF CROSS-CHANNEL GATES.
(a) The Secretaries of Commerce and the Interior shall
(1) authorize and implement actions to ensure that the Delta Cross Channel Gates shall remain open to the greatest extent possible using findings from the United States Geological Survey on diurnal behavior of juvenal salmonids, timed to maximize the peak flood tide period and provide water supply and water quality benefits for the duration of the drought emergency declaration of the State, consistent with operational criteria and monitoring criteria developed pursuant to the California State Water Resources Control Board’s Order Approving a Temporary Urgency Change in License and Permit Terms in Response to Drought Conditions, effective January 31, 2014, or a successor order;
(2) collect data associated with the operation of the Delta Cross Channel Gates described in paragraph (1) and the impact of the operation on species listed as threatened or endangered under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), water quality, and water supply;
(3) consistent with knowledge gained from 2014 actions, collaborate with the California Department of Water Resources to install a deflection barrier at Georgiana Slough in coordination with Delta Cross Channel Gate diurnal operations to protect migrating salmonids;
(4) evaluate the combined salmonid survival from actions in paragraphs (1) and (3) in deciding operations of the Delta Cross Channel gates to enhance both salmonid
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survival and water supply benefits; and
(5) provide a written report to the Energy and Natural Resources Committee in the Senate and the Natural Resources Committee in the House of Representatives from Reclamation by May 15, 2015 to detail the extent to which the gates were able to remain open.
(b) After assessing the data described in paragraph (a), the Secretary shall recommend revisions to operations of the Delta Cross-Channel Gates, and to the Central Valley Project and the California State Water Project, including, if appropriate, the reasonable and prudent alternatives contained in the biological opinion issued by the National Marine Fisheries Service on June 4, 2009, that are likely to produce fishery, water quality, and water supply benefits.
SEC. FLEXIBILITY FOR EXPORT/INFLOW RATIO.
In response to the declaration of a state of drought emergency by the Governor of California and for the period of time such a drought declaration remains in effect, consistent with the Central Valley Project and State Water Project Drought Operations Plan and Operational Forecast April 1, 2014 through November 15, 2014, the United States Bureau of Reclamation shall continue to vary the averaging period of the Delta Export/Inflow ratio pursuant to the California State Water Resources Control Board decision D-1641 as was approved in the March Temporary Urgency Change Order: Operating to a 35 percent Export/Inflow ratio with a 3-day averaging period on the rising limb of a Delta inflow hydrograph, and operate to a 14-day averaging period on the falling limb of the Delta inflow hydrograph.
SEC. . EMERGENCY ENVIRONMENTAL REVIEWS.
To minimize the time spent carrying out environmental reviews and to deliver water quickly that is needed to address emergency drought conditions in the State during the pendency of an emergency drought declaration, the head of each applicable Federal agency shall, in carrying out this Act, consult with the Council on Environmental Quality in accordance with section 1506.11 of title 40, Code of Federal Regulations (including successor regulations) to develop alternative arrangements to comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) during the emergency.
SEC, , PRIORITIZING STATE REVOLVING FUNDS DURING DROUGHTS,
(a) In general.--The Administrator of the Environmental Protection Agency, in allocating amounts for each of the fiscal years during which an emergency drought declaration of the State is in effect to State water pollution control revolving funds established under title VI of the Federal Water Pollution Control Act (33 U.S.C. 1381 et seq.) and the State drinking water treatment revolving loan funds established under section 1452 of the Safe Drinking Water Act (42 U.S.C. 300i-12), shall, for those projects that are eligible to receive assistance under section
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603 of the Federal Water Pollution Control Act (33 U.S.C. 1383) or section 1452(a)(2) of the Safe Drinking Water Act (42 U.S.C. 300i-12(a)(2)), respectively, that the State determines will provide additional water supplies most expeditiously to areas that are at risk of having an inadequate supply of water for public health and safety purposes or to improve resiliency to drought--
(1) require the State to review and prioritize funding for such projects;
(2) issue a determination of waivers within 30 days of the conclusion of the informal public comment period pursuant to section 436(c) of title IV of division G of Public Law 113-76; and
(3) authorize, at the request of the State, 40-year financing for assistance under section 603(d)(2) of the Federal Water Pollution Control Act (33 U.S.C. 1383(d)(2)) or section 1452(f)(2) of the Safe Drinking Water Act (42 U.S.C. 300i-12(f)(2)).
(b) Effect of section.--Nothing in this section authorizes the Administrator of the Environmental Protection Agency to modify any funding allocation, funding criteria, or other requirement relating to State water pollution control revolving funds established under title Vl of the Federal Water Pollution Control Act (33 U.S.C. 1381 et seq.) and the State drinking water treatment revolving loan funds established under section 1452 of the Safe Drinking Water Act (.42 U.S.C. 300i-12) for any other State.
Section ¯ INCREASED FLEXIBILITY FOR REGULAR PROJECT OPERATIONS.
The Secretaries shall, consistent with applicable laws and regulations,
(a) to the maximum extent possible based on the availability of water and without causing land subsidence or violating water quality standards--
(1) meet the contract water supply needs of Central Valley Project refuges through the improvement or installation of water conservation measures, water conveyance facilities, and wells to use groundwater resources, which activities may be accomplished by using funding made available under the Water Assistance Program or the WaterSMART program of the Department of the Interior; and
(2) make a quantity of Central Valley Project surface water obtained from the measures implemented under subparagraph (A) available to Central Valley Project contractors;
(b) in coordination with the Secretary of Agriculture, enter into an agreement with the National Academy of Sciences to conduct a comprehensive study, to be completed not later than 1 year after the date of enactment of this Act, on the effectiveness and environmental impacts of saltcedar biological control efforts on increasing water supplies and improving riparian habitats of the Colorado River and its principal tributaries, in the State and elsewhere;
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(d) implement offsite upstream projects in the Delta and upstream Sacramento River and San Joaquin basins, in coordination with the California Department of Water Resources and the California Department of Fish and Wildlife, that offset the effects on species listed as threatened or endangered under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) due to actions taken under this Act;
(e) manage reverse flow in the Old and Middle Rivers as prescribed by the biological opinions issued by the United States Fish and Wildlife Service on December 15, 2008, for Delta smelt and by the National Marine Fisheries Service on June 4, 2009, for salmonids, or any successor biological opinions, to minimize water supply reductions for the Central Valley Project and the State Water Project;
(f) participate in, issue grants, or otherwise provide funding for, as soon as practicable after the date of enactment of this Act, under existing authority available to the Secretary of the Interior, pilot projects to increase water in reservoirs in regional river basins experiencing extreme, exceptional, or sustained drought that have a direct impact on the water supply of the State, including the Colorado River Basin, provided that any participation, grant, or funding by the Secretary with respect to the Upper Division shall be with or to the respective State; and
(g) use all available scientific tools to identify any changes to real-time operations of Bureau of Reclamation, State and local water projects that could result in the availability of additional water supplies.
Section . TEMPORARY OPERATIONAL FLEXIBILITY FOR FIRST FEW STORMS OF 2014-2015 WATER YEAR.
Beginning December 1, 2014 and until the California Department of Water Resources determines that the Delta has been out of balance for thirty consecutive days [note: I don’t believe this is the best way to narrow the provision to the first 3-5 storms of the 2014-2015 water year, and am checking with Ron Milligan of BOR on how to limit the applicability of this provision to this time period], notwithstanding the requirements of any biological opinion issued by the Secretaries of the Interior and Commerce pursuant to the Endangered Species Act, 16 USC 1531-1544, the Central Valley Project and the State Water Project, combined, are authorized to operate at levels that result in Old and Middle River flows up to -7500 cubic feet per second provided that,
a) All other applicable regulatory requirements under federal law, including limitations on incidental take of listed species established in any biological opinion, or applicable regulatory requirements under state law, including State Water Resources Control Board Decision 1641, as it may be implemented in any given year, are met;
b) This section shall not have any effect on the applicable requirements of the salmonid biological opinion from April i to May 31, unless the Secretary of
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Commerce finds that some or all of the applicable requirements may be relaxed during this time period to provide emergency water supply relief without causing jeopardy;
c) 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 a monitoring program and other data gathering to insure take limits are not exceeded, and to identify potential actions to mitigate any impacts to species listed as threatened or endangered under the Endangered Species Act, 16 U.S.C. 1531-1544; and
d) The Commissioner is authorized to take any action, including the transfer of appropriated funds between accounts that, in the Commissioner’s judgment, are necessary to mitigate the impacts of such operations as long as any such mitigation is consistent with the requirements off this section.
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ENSURING SALMONID MANAGEMENT IS RESPONSIVE TO NEW SCIENCE.
¯ FINDINGS.
¯ DEFINITIONS.
¯ SCIENTIFIC STUDIES IN 2015.
¯ PROCESS FOR ENSURING SALMONID MANAGEMENT IS RESPONSIVE TO NEW SCIENCE.
¯ NONNATIVE REDUCTION PILOT PROGRAM IN THE SACRAMENTO-SAN JOAQUIN BAY DELTA AND
ITS TRIBUTARIES.
¯ MARK FISHERY AND HARVEST MANAGEMENT.
¯ NEW ACTIONS TO BENEFIT CENTRAL VALLEY SALMONIDS.
Sec, FINDINGS¯
(1) The 2009 National Marine Fisheries Service Biolol~ical Opinion A) restricted the volume of water diverted by the Central Valley Project and the State Water Project to a fraction of the water enterinl~ the Delta from the San Joaquin River durinl~April and May of each year (the Inflow to Export ratio), and B) required that averal~e Old and Middle River flow remain above specified levels.
2) In 2009 scientific uncertainty existed about the export restrictions specified in the 2009 Biolol~ical Opinion. For this reason, both the 2009 Biolol~ical Opinion and the 2010 National Academy of Sciences review recommended further studies, includinl~ acoustic telemetry on mil~ratinl~ juvenile salmonids, to further evaluate effectiveness of the export restrictions.
3) Four years of acoustic telemetry studies have been reported since the 2009 biolol~ical opinion. The studies appear to show that throul~h-Delta survival of tal~l~ed juvenile salmonids is very poor rel~ardless of exports and San Joaquin River inflows: A) Studies in dry years with nel~ative Old and Middle River flow (2009, 2012) have shown that fewer than 5% of tal~l~ed juvenile Chinook salmon can be expected to survive from entry to exit from the Delta.
B) 2010 and 2011 were both wet years with positive Old and Middle River flow, but still less than 5% of tal~l~ed juvenile Chinook survived to exit the Delta.
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c) Only one steelhead tagging study report has been published, which showed that steelhead smolt survival was considerably better than for Chinook salmon, but the study still did not show that Central Valley Project and State Water Project operations had an effect on survival in the larger Delta.
4) Recent Delta hydrodynamic analyses and other fish tagging studies affirm acoustic telemetry study findings. New analysis of how South Delta exports and San Joaquin River inflows effect water velocities in the Delta show that the magnitude and geographic range of export effects is significantly less than was presumed in the 2009 biological opinion.
5) Newly published analyses show that proportional loss of Sacramento Basin juvenile salmonids to export pumping is on average less than 1%. The analysis also suggests proportional loss will remain low with Old and Middle River flow levels at least as negative as -5000 cubic feet per second.
6) These significant new studies show that science on three fronts (juvenile salmonid survival, Delta hydrodynamics, and proportional entrainment) yield complimentary and consistent results suggesting that export restrictions associated with inflow/export requirements and limitations and Old and Middle River flow are not substantially increasing survival rates for salmonids listed under the Endangered Species Act. To the contrary, despite substantially decreased water diversions, through-Delta juvenile Chinook salmon survival has remained consistently poor.
7) Section 203 requires additional studies during 2015 to further analyze the effects of export restrictions on juvenile salmonid survival rates.
8) The lack of suitable juvenile salmon habitat and apparently high predation rates from non-native and invasive fish species present severe challenges to juvenile salmonids outmigrating through the Delta. Restoration of salmonid populations may not be possible where the juvenile species have a poor probability of surviving outmigration.
9) Section 203 requires pilot studies in 2015 of whether trap-and-barge operations in the Delta could, if fully implemented, raise the survival rates of outmigrating salmonid juveniles to between 54-96% range seen in similar
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MWDPRA-EJ000547 operations on the Columbia River.
10) Measures that substantially restrict water supply should not be implemented unless the best available science shows that they are needed to avoid jeopardy and that alternative, non-water consumptive actions cannot provide equal to or greater benefits than water export related reasonable and prudent alternatives found in the 2009 Biological Opinion.
Sec, . DEFINITIONS,
(1) JEOPARDY. AS used in this title, the term "jeopardy" shall mean to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species.
(2) LISTED SALMONID SPECIES. As used in this title, the term "listed salmonid species" shall mean natural origin steelhead, natural origin genetic spring run Chinook and genetic winter run salmon smolts.
(3) OMR FLOW OF -5000 CFS. As used in this title, the term "OMR flow of -5000 cfs" shall mean Old and Middle River flow of negative 5000 cubic feet per second.
(4) SALMONID BIOLOGICAL OPINION. As used in this title, the term "salmonid biological opinion" shall mean the biological opinion issued by the National Marine Fisheries Service on June 4, 2009.
(5) SECRETARY. AS used in this title, the term "Secretary" shall mean the "Secretary of Commerce".
Sec. . SCIENTIFIC STUDIES IN 2015.
(a) TRAP AND BARGE PILOT PROJECTTO INCREASE SURVIVAL THROUGH THE DELTA. By March 1, 2015, the National Marine Fisheries Service, in collaboration with the California Department of Fish and Wildlife, shall issue necessary permits and otherwise facilitate implementing a pilot program to trap juvenile Listed Salmonids Species emigrating from the San Joaquin River basin and provide for their safe passage by barge to the Western Delta; and conducting studies to evaluate the effectiveness of this program.
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(b) 2015 ENHANCED 6-YEAR STEELHEAD STUDY. By December 31, 2015, the National Marine Fisheries Service, in collaboration with California Department of Fish and Wildlife, California public water agencies, and scientific investigators, shall report results of an expanded 6-year Steelhead study specified in the 2009 biological opinion. The field investigations, to be completed during spring 2015, shall, at a minimum,
include acoustic tagging of natural origin steelhead smolts captured during the pilot trap and barge program if fish of suitable size and condition are available;
(2) include an experimental manipulation of exports where exports will range both substantially above and substantially below levels studied previously;
(3) include a sample size of acoustically tagged fish sufficient to detect an effect at least as small as a 10% change in absolute survival among experimental treatments;
(4) if available, utilize new acoustic tags capable of signaling when a tagged smolt has been consumed bya predator; and
(5) be conducted without the Head of Old River Barrier in place so that tagged fish may migrate through the Old River route.
(C) EXPERIMENTAL VARIABILITY. Nothing in the relevant biological opinions shall prohibit limited periods of exports that exceed applicable limits for the purpose of scientific inquiry, subject to rescheduling or cancellation of such exports in exceedance of applicable limits in the biological opinions if the Secretary of the Interior or the Secretary determines that it is necessary to do so to avoid jeopardy.
Section . PROCESS FOR ENSURING SALMONID MANAGEMENT IS RESPONSIVE TO NEW SCIENCE.
a) PURPOSE. In response to the significant new science since the adoption of the salmonid biological opinion over 5 years ago, including the new science described in section 201, the Secretaries of Commerce shall issue a written reevaluation and determination, in accordance with the standards and procedures in Section 204(b)- (e) whether certain water export limitations in the biological opinion are necessary to avoid jeopardy or whether such limitations provide minor benefits that are either unnecessary for species survival or can be more effectively achieved
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through broadening or initiating any of a range of alternative management measures.
(b) FRAMEWORK FOR EVALUATING THE NECESSITY OF MANAGEMENT MEASURES FOR
AVOIDING JEOPARDY.
(1) IN GENERAL. In order to have the tools to evaluate whether certain water export limitations are necessary to avoid jeopardy in light of new science, the Secretary shall estimate how much those export restrictions contribute to the survival of the species as compared to the contributions to species survival from a broad range of other management measures.
(2) ESTIMATES OF How MUCH DIFFERENT MANAGEMENT MEASURES CONTRIBUTE TO SPECIES SURVIVAL. NO later than December 31, 2016, the Secretary shall, in collaboration with the California Department of Fish and Wildlife, taking account of the best scientific and commercial data available and giving greater weight to more recent data better reflecting current conditions in the Delta, for each listed salmonid species issue final quantitative estimates of
A) the percentage increase in through-Delta survival the Secretary expects to be achieved with export restrictions specified within RPA Actions IV.2.1 that limit flow to -5000 cubic feet per second compared to limiting flow to -2500 cubic feet per second, based on a given rate of San Joaquin River inflow to the Delta and holding other relevant factors constant;
B) the percentage increase in through-Delta survival the Secretary expects to be achieved with inflow to export restrictions specified within RPA Actions IV.2.3 as compared to inflow to export requirements found in 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;
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C) the percental~e increase in throul~h-Delta survival the Secretary expects could be achieved by a trap-and-barl~e prol~ram based on the experience of other comparable systems and the studies described in section 203, as they become available;
D) the percental~e increase in throul~h-Delta survival the Secretary expects could be achieved throul~h habitat enhancement prol~rams;
E) the percental~e increase in throul~h-Delta survival the Secretary expects could be achieved throul~h predation control prol~rams;
F) the percental~e increase in throul~h-Delta survival the Secretary expects could be achieved throul~h the use of temporary barriers, the Cross Channel Gates, Head of Old River Barrier, and other projects affectinl~ flow in the Delta;
G) the percental~e increase in throul~h-Delta survival the Secretary expects could be achieved by implementinl~ a trappinl~ prol~ram at the entrance to Clifton Court Forebay to capture (and provide safe transport) for entrained juvenile salmonids to the western Delta, and
H) the percental~e increase in throul~h-Delta survival the Secretary expects could be achieved throul~h the use of other manal~ement prol~rams.
3) ESTIMATES OF A RANGE OF INCREASED SURVIVAL PERCENTAGE.
A) The Secretary may provide a ranl~e of increased survival percental~es for any of the measures in paral~raph (2), if the Secretary determines that the best scientific and commercial data available does not support an estimate of a specific survival percent.
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B) The Secretary shall limit any such range to increased survival percentages that the Secretary determines have a reasonable probability of occurring.
4) DRAFT ESTIMATES, PUBLIC COMMENT, AND SCHEDULE.
A) No later than February 1, 2015, the Secretary shall make available to the public the study design, including the data and analyses that the Secretary intends to utilize, for determining estimates of survival percentages, and shall provide an opportunity for public comment on the study design until April 30, 2015;
B) The Secretary shall issue draft quantitative estimates no later than December 31, 2015 that will temporarily serve as a reference until the Secretary issues the final quantitative estimates.
C) Concurrent with issuance of the draft quantitative estimates, the Secretary also shall make available to the public all data and analyses that were utilized or relied upon to develop the draft quantitative estimates.
D) The Secretary shall provide an opportunity for public comment on the draft quantitative estimates for a period of four months.
(C) SCIENTIFICALLY SUPPORTED IMPLEMENTATION OF OLD AND MIDDLE RIVER FLOW REQUIREMENTS.
1) Nothing in this subsection shall affect the salmonid biological opinion’s limitation of flow in the Old and Middle River greater (more negative) than - 5000 cubic feet per second as described in the salmonid biological opinion.
2) Beginning January 1, 2016, in managing Old and Middle River flow pursuant to the salmonid biological opinion or any successor biological opinion, the Secretary shall:
A) Consider the relevant provisions in the biological opinion and other relevant data; and
B) Articulate the basis for the Secretary’s determination to require raised or lowered OMR flow levels within the range established by the salmonid biological opinion or any successor biological opinion, including an
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explanation of the data examined and the connection between those data and the choice made, and a showinl~ that any limitation of OMR flow to levels less nel~ative than -.5000 cubic feet per second in the short-term is necessary to avoid jeopardy; and
3) In any analysis of potential jeopardy conducted pursuant to paral~raph (2)(B), the Secretary shall explain why implementation of this measure in particular is necessary to avoid jeopardizinl~ the continued existence of the species, includinl== by determininl~ either
(A) It is not technically feasible or within federal jurisdiction to achieve any increased survival benefit of the same or l~reater quantity from broadeninl~ or initiatinl~ any of the manal~ement measures described in subsection (b)(2) or other alternative manal~ement measures, includinl== measures implemented with the support of a substantial contribution from water districts; or
(B) If it is technically feasible and within federal jurisdiction to implement any such alternative manal~ement measures, the adverse consequences of doinl~ so exceed the adverse consequences of limitinl~ OMR flow to levels less nel~ative than -5000 cubic feet per second; or
(C) If it is technically feasible but not within federal jurisdiction to implement certain such alternative manal~ement measures, the Secretary shall specifically describe such determination and also describe the alternative manal~ement measure or measures.
4) If at the time the Secretary conducts the analysis in paral~raph (3), the Secretary has not issued the draft or final quantitative estimates of increased survival percental==es for different manal~ement measures pursuant to subsection (b), the Secretary shall compare the benefits to the species of different manal~ement measures based on the best scientific and commercial data available at the time.
(d) SCIENTIFICALLY SUPPORTED IMPLEMENTATION OF INFLOW/EXPORT REQUIREMENTS.
1) Bel~inninl~ April 1, 2016, in relation to the provisions limitinl~ the ratio of water exports from the Delta in relation to flow in the San Joaquin River beyond what is required under the State Water Resources Control Board Decision D-1641 pursuant to the salmonid biolol==ical opinion and any
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successor biolol~ical opinion, the Secretary shall:
A) Consider the relevant provisions in the biolol~ical opinion and other relevant data; and
B) Articulate an explanation, includinl~ of the data examined and the connection between those data and the choice made, why a limitation beyond that required under the State Water Resources Control Board Decision D-1641 in the short-term is necessary to avoid jeopardy as a prerequisite to continuinl~ Action IV.2.3 of the salmonid biolol~ical opinion or any equivalent successor provision.
2) In any analysis of potential jeopardy conducted pursuant to paral~raph (1)(B), the Secretary shall explain why implementation of this measure in particular is necessary to avoid jeopardizinl~ the continued existence of the species, includinl~ by determininl~ either
(A) It is not technically feasible or within federal jurisdiction to achieve any increased survival benefit of the same or l~reater quantity from broadeninl~ or initiatinl~ any of the manal~ement measures described in subsection (b)(2) or other alternative manal~ement measures, includinl~ measures implemented with the support of a substantial contribution from water districts; or
(B) If it is technically feasible and within federal jurisdiction to implement any such alternative manal~ement measures, the adverse consequences of doinl~ so exceed the adverse consequences of limitinl~ the ratio of water exports from the Delta in relation to flow in the San Joaquin River beyond what is required under the State Water Resources Control Board Decision D-1641; or
(C) If it is technically feasible but not within federal jurisdiction to implement certain such alternative manal~ement measures, the Secretary shall specifically describe such determination and also describe the alternative manal~ement measure or measures.
(3) If at the time the Secretary conducts the analysis in paral~raph (2), the Secretary has not issued the draft or final quantitative estimates of increased survival percental~es for different manal~ement measures pursuant to subsection (b), the
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MWDPRA-EJ000554 Secretary shall compare the benefits to the species of different management measures based on the best scientific and commercial data available at the time.
(e) JUDICIAL REVIEW. Determinations by the Secretary of OMR flow determinations under subsection (c) and inflow/export ratio determinations under subsection (d) shall constitute final agency action.
Sec. . NONNATIVE REDUCTION PILOT PROGRAM IN THE SACRAMENTO-SAN JOAQUIN BAY DELTA
AND ITS TRIBUTARIES.
(a) FINDINGS.--Congress finds that--
(I) The San Joaquin and Sacramento Bay Delta-
(A) is one of the largest and most diverse estuaries in the United States,
(B) is a natural treasure and a vital link in California’s water system, and
(B) its native biodiversity is important to the ecological and economic systems of California, including water deliveries to agriculture, municipalities and to the environment and fisheries industries.
(2) Past, present and future introductions of invasive species are and will be a major factor in the decline of native pelagic and anadromous endangered or threatened species in the Sacramento-San Joaquin River Delta.
(3) More than 250 nonnative aquatic and plant species have been introduced into the Delta; of these, at least 185 species have become established and have altered the Delta’s ecosystem.
(4) The Bay Delta Conservation Plan, the Recovery Plan for the Evolutionary Significant Units of Sacramento River Winter-run Chinook Salmon and Central Valley Spring-run Chinook Salmon and the Distinct Population Segment of the Central Valley Steelhead, the Recovery Plan for the Sacramento-San Joaquin Delta Native Fishes, and the multiple 5 year reviews of those plans all highlight that introduced nonnative invasive species is a significant factor in the decline of native Delta fish species. These nonnative species, which include invasive aquatic vegetation, predators, and competitors, directly or indirectly cause biological stress for pelagic and anadromous endangered or threatened fish species in the Delta.
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(5) If threats by nonnative species to native fish species are not addressed there is a hil~h probability that native species of the Delta’s pelal~ic and anadromous community will I~o extinct.
(6) Conl~ress believes a focused pilot prol~ram needs to be conducted within the Delta to reduce threats to native listed species by nonnative species. Reducinl~ nonnative stressors on native listed species will contribute to both native listed species recovery and lowerinl~ the impact on downstream water users as those native listed species recover.
(b) DELTA NONNATIVE REDUCTION PROGRAM
(I). In General. - Not later than January 1, 2016, the Secretary of Commerce, the Secretary of Interior and the California Secretary of Natural Resources shall, consistent with the Endanl~ered Species Act (7 U.S.C. § 136), desil~n and implement a pilot prol~ram to reduce invasive aquatic vel~etation, predators, and other competitors which are major factors in the decline of native listed pelal~ic and anadromous species which occupy the Sacramento and San Joaquin Rivers and their tributaries and the Sacramento-San Joaquin Rivers Delta. Specifically the Delta Nonnative Removal Pilot Project plan shall address how to remove, reduce, or control the effects of: Asiatic clams, silversides, l~obies, Brazilian water weed, larl~emouth bass, smallmouth bass, striped bass, crappie, bluel~ill, white and channel catfish, brown bullheads, and any other nonnative species that the Secretary finds critical to reducinl~ stress on Delta ecolol~ical health and the native pelal~ic and anadromous listed species contained therein. The prol~ram shall consist of the followinl~ phases:
(A) Phase 1. -The al~encies shall convene a panel of experts to:
(1) Identify the non-native species havinl~ the l~reatest impact on the viability of native pelal~ic and anadromous native listed species; and (2) Identify the non-native species where actions to reduce or control the population is determined to be possible; and (3) Desil~n a study to reduce the non-native species identified in both (b)(1)(A)(1) and (b)(1)(A)(2) and prepare a cost estimate to implement this study.
(B) Phase 2 - The al~encies shall test the l~eneral viability of nonnative reduction methods at a small number of treatment sites selected by the
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agencies, but shall be targeted at known hotspots of predator aggregation or activity, such as:
(1) Clifton Court Forebay,
(2) Central Valley Project intakes,
(3) Head of Old River,
(4) Georgiana Slough,
(5) Old and Middle Rivers,
(6) Franks Tract,
(7) Paintersville Bridge,
(8) Human-made submerged structures,
(9) Salvage release sites,
Nonnative reduction methods can include both direct predator removal and alteration of channel conditions to reduce predation.
Phase 2 of the study shall include the Stanislaus River.
(B) Phase 3.- If feasible, the agencies shall implement nonnative reduction methods at a larger number of sites, incorporating information learned during the first phase.
(2) The Secretaries shall collect data associated with the implementation of the programs above, and shall specifically collect data on the impact on pelagic and anadromous species listed as threatened or endangered under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.), water quality, and water supply; and
(3) after assessing the data described in subparagraph (2), the Secretary of Commerce and the Secretary of the Interior shall recommend revisions to operations of the Central Valley Project and the California State Water Project, including, if appropriate, to the reasonable and prudent alternatives contained in the biological opinion issued by the National Marine Fisheries Service on June 4, 2009 and the biological opinion issued by the United States Fish and Wildlife Service on December 15, 2008 that are likely to produce fishery, water quality, and water supply benefits.
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(c) Implementation and Reportinl~ Requirements.
(I) The prol~rams described in subpart (b) shall be reported to the Senate Environment & Public Works Committee and the House Committee on Natural Resources, includinl== the application for all necessary scientific research and species enhancement permits under the section lO(a) (1) of the Endanl~ered Species Act of 1973 (16 U.S.C. 1539(a)(1)), for the performance of the Delta Nonnative Removal Pilot Project, on Jan. 1, 2016.
(2) A report to the Senate Environment & Public Works Committee and the House Committee on Natural Resources shall be provided upon completion of Phase I as described in {b){1){A) of this Section. Two years after the project bel~ins, a report to the Senate Environment and Public Works Committee and the House Committee on Natural Resources shall be provided describinl~ the prol~ress of the eradication of the nonnative species in the Delta and how it has helped the Recovery Plans for endanl~ered and threatened Anadromous and Pelal~ic Species in the San Joaquin -Sacramento River Delta.
(3) The prol~ram described in subpart (b) shall be implemented for a period of five consecutive years bel~inninl~ on the date of implementation.
(4) After the Delta Nonnative Removal Pilot Project is complete, the Secretary of Commerce and the Secretary of Interior shall issue a report to the Senate Environment & Public Works Committee and the House Committee on Natural Resources, describinl== the results of the prol~ram. Items to be reported on shall include, but shall not limited to recommendations on how the findinl~s of the prol~ram may be taken to full scale, includinl==:
(A) How a mitil~ation prol~ram for the Central Valley Project allowable under section 10(a)(1) of the Endanl~ered Species Act of 1973 (16 U.S.C. 1539(a)(1) could be implemented.
(d) EMERGENCY ENVIRONMENTAL REVIEWS
(I) To minimize the time spent carryinl== out environmental reviews and to deliver water quickly that is needed to address emerl==ency droul~ht conditions in the State, the head of each applicable Federal al==ency shall, in carryinl== out this Act, consult with the Council on Environmental Quality in accordance with section 1506.11 of title 40, Code of Federal Rel~ulations (includinl== successor rel~ulations) to develop alternative arranl~ements to comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) for this prol~ram.
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Sec. MARK FISHERY AND HARVEST MANAGEMENT.
(a) To minimize the impact of harvest and project operations on salmonids, contribute to recovery of ESA stocks, and to minimize risk of a natural origin fall Chinook ESA listing, by 2015 the National Marine Fisheries Service shall implement a mass marking program for Central Valley hatchery fall Chinook, in partnership with the California Department of Fish and Wildlife and those responsible for funding Central Valley hatcheries.
(b) By October 1, 2018, the National Marine Fisheries Service shall assess and implement new harvest management strategies to provide better protection for sensitive Chinook stocks while still allowing for harvest of hatchery fall Chinook. Alternative harvest strategies assessed shall include stock-specific quotas, daily landing limits, terminal fisheries and mark-selective fisheries, all of which methods are standard practice for Chinook harvest management in Oregon and Washington.
Sec. . NEW ACTIONS TO BENEFIT CENTRAL VALLEY SALMONIDS.
Before March 1, 2016, mimicking successful United States Fish and Wildlife Service programs on
Clear Creek and Battle Creek, the National Marine Fisheries Service, in collaboration with the California Department of Fish and Wildlife, the United States Bureau of Reclamation, or both, shall issue necessary permits and otherwise facilitate the deployment of temporary in-river structures to:
(a) protect and grow natural origin spring Chinook populations by blocking access to hatchery origin fall Chinook; and
(b) prevent hatchery origin Chinook salmon and steelhead from reaching spawning grounds where they will compete for spawning with Endangered Species Act-listed natural origin fish.
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MWDPRA-EJ000559 SCIENTIFIC FINDINGS RELATED TO THE 2009 NMFS BIOLOGICAL OPINION ON THE COORDINATED OPERATION OF THE CVP-SWP ("NMFS BiOp")
NMFS BiOp RESTRICTIONS ON CVP-SWP OPERATIONS
I:E Ratio -- Import to Export Ratio limits project pumping based on the quantity of water flowing into the Delta from the San Joaquin River (SJR). The I:E ratio is restricted from April 1st through May 31st every year. The ratio ranges between 1:1 and 4:1 depending on water year type, drier years receive the lowest ratio.
OMR = Project pumping is limited by Old and Middle River (OMR) flows. OMR flows are determined by SIR inflows and exports. There are two requirements. From January through June, OMR flows may not be any more negative than -5,000 cfs. ("calendar based" requirement). OMR may be further restricted to -3,500 cfs or - 2500 based upon fish salvage triggers.
NMFS BiOp RESTRICTIONS ON CVP-SWP OPERATIONS ARE POORLY SUPPORTED BY THE BEST AVAILABLE SCIENCE
Peer-review of the OMR operational restrictions did not find support for the OMR triggers.
"Uncertainty in the effect of the flow triggers needs to be reduced, and more flexible triggers that might require less water should be evaluated (NRC, 2010)/’
"While [proposed OMR] is conceptually sound, the threshold levels needed to protect fish is not definitively established (NRC, 2010)."
The BiOp relied heavily on the particle tracking model ("PTM") to justify the OMR operational restrictions, but peer-review has not supported the use of the PTM for this purpose.
"The lack of a relationship between fish movement and particle tracking model results and the lack of relationships between OMR inflows/exports and smolt movement/survival suggest that these were insensitive indicators for evaluating effectiveness of Delta operations on salmonids." (Anderson et all. 2012, p. 31)
The BiOp also justified its OMR restriction based on an understanding that CVP- SWP project pumping draws out-migrating salmonids into the interior Delta where mortality is higher. However, scientific investigations have shown that CVP-SWP operations do not draw salmonids away from the Sacramento River and into the interior Delta.
MWDPRA-EJ000560 "The study found that fish entrainment into the inner Delta was not related to pumping operations, suggesting that weekly adjustment of operations by fish movement is not scientifically supportable." (Anderson et al., 2012, p. 31)
"The results of tagging studies to date (through the 2012 study), show little correlation between operations and fish movement, and so do not currently support using salmon to manage operations on a weekly basis." (Anderson et al., 2012, p. 33)
"The current paradigm for characterizing movement of smolts through the Delta reaches relies on mean flow to characterize the movement and routing of fish. The tagging studies in 2012 and earlier years clearly indicate that this characterization is inadequate." (Anderson et al., 2012, p. 44)
"The 2012 joint stipulation study found that movement into the inner Delta appeared independent of the OMR flow which suggests that route selection is influenced by proximal conditions at the junctions of the channels." (Anderson et al., 2012, p. 51)
To reduce uncertainty regarding the OMR restriction, the National Academy of Science recommended new telemetry based survival studies (NRC, 2010 at 58). Several years of those studies have been completed. The new results did not support the OMR requirement.
"Our results suggest that prevailing ideas about relative survival in the two routes may be too simple, given that we found no conclusive evidence that survival was higher in the San ]oaquin River route than in the Old River route (Buchanan et al. 2013, p. 228)."
"Under the OMR flow treatments tested in this study, there appeared to be little influence of OMR flows tested on steelhead tag travel times on the route-level and steelhead movement at the junctions and routes examined in this study (Delaney et al. 2014, p. ES-3).’’1
There is a weak biological basis for the I:E ratio. Scientific investigations have been unable to detect a strong negative effect of the CVP-SWP exports on salmonid survival through the south Delta.
i Delaney et al. 2014 also found that fish entering the Central Delta (primarily via Turner Cut) survived more poorly than fish remaining in the San Joaquin River route, however this pattern was unrelated to OMR flows.
MWDPRA-EJ000561 "There was no clear association between survival probabilities and export flows." (Dauble et aL 2010, p.24)
o "Associations between water export levels and survival probabilities were weak to negligible (Newman 2008, p. 4)."
"...[A]pproaches used to evaluate survival and routing behavior of out- migrating salmonid smolts have not yet provided a clear path to suggest that fine-tuning water operations will provide a successful means of maintaining or restoring salmonid populations that migrate through the southern Delta." (Anderson et al., 2012, p. 28).
"Given the weak influence of exports in all survival relationships (Newman, 2008), continued negotiation offers opportunities to reduce water use in this [I:E ratio] specific action without great risk to steelhead (NRC 2010, p.60)."
Published analysis now demonstrates that entrainment loss and the mean contribution of entrainment to total Delta mortality were quite low. o "The greatest entrainment mortality occurred for fish released along routes that passed closest to the diversions and certain runs of Chinook Salmon released in the Sacramento River suffered greater mortality but only at the highest diversion rates observed during the study. These results suggest losses at diversions should be put into a population context in order to best inform effective management of Chinook salmon populations." (Zeug and Cavallo 2014)
References
Anderson, ].]., Kneib, R. T., Luthy, S.A., Smith. 2010. Report of the 2010 Independent Review Panel (IRP) on the Reasonable and Prudent Alternative (RPA) Actions Affecting the Operations Criteria and Plan (OCAP) for State/Federal Water Operations. Prepared for Delta Stewardship Council, Delta Science Program. Available: http://de~tac~unci~.ca.g~v/d~cs/2~11~1~~19/rep~rt~2~1~~independent~review~panel~irp- reasonable-and-prudent-alternative-rpa-acti
Anderson, ].]., Gore, A .G., Kneib, R. T., Lorang, M. S., Nestler, ]. M., Van Sickle, ]. 2012. Report of the 2012 Delta Science Program Independnet Review Panel (IRP) on the Long-Term Operations Opinion (LOO) Annual Review. Prepared for Delta Science Program. Available: http://deltacouncil.ca.gov/sites/default/files/documents/files/Report 2012 DSPIRP LO0 AR 120112 final.pdf
MWDPRA-EJ000562 Buchanan, R.A., Skalski J.R., Brandes, P.L., and Fuller, A. 2013. Route Use and Survival of Juvenile Chinook Salmon through the San Joaquin River Delta. Series: North American Journal of Fisheries Management, Vol. 33, Num. 1, Page(s): 216-229.
Delaney, D., Bergman, P., Cavallo, B., and Melgo, J. 2014. Stipulation Study: Steelhead Movement and Survival in the South Delta with Adaptive Management of Old and Middle River Flows. Report to CDWR. Available: http://www.fishsciences.net/reports/2014/Final Stipulation Study Report 7Fe b2014.pdf
Dauble D., Hankin, D., Pizzimenti, J.J., and Smith, P. 2010. The Vernalis Adaptive Management Program: Report of the 2010 Review Panel. Prepared for the Delta Science Program. Available: http://www.fws.gov/stockton/jfmp/Docs/2010 S]RGA Annual Technical Report.pdf
NRC. 2010. A Scientific Assessment of Alternatives for Reducing Water Management Effects on Threatened and Endangered Fishes in California’s Bay Delta. Washington, DC: The National Academies Press, 2010. Available: http://www.nap.edu/catalog.php?record id=12881
Newman, K.B. 2008. An evaluation of four Sacramento-San Joaquin River Delta juvenile salmon survival studies. Prepared for the Stockton FWO, United States Fish and Wildlife Service.
SJRGA. 2013. 2011 Annual technical report, San Joaquin River Agreement, Vernalis Adaptive Management Plan. San Joaquin River Group Authority. Available: http:!/www.sjrg.org/technicalreport!2011!2011 SJRGA AnnualTechnicalReport.pdf
Zeug SC, Cavallo ElI (201z~) Controls on the Entrainment of Juvenile Chinook Salmon (Oncorhynchus tshawytscha) into Large Water Diversions and Estimates of Population-Level Loss. PLoS ONE 9(7): e1014~79, doi: 10.1371/journal.pone.01014~79. Available: http:!!www.plosone.org!article!info%3Adoi%2F10.1371%2 Fjournal.pone.01014~79
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ADJUSTING DELTA SMELT MANAGEMENT BASED ON INCREASED REAL-TIME MONITORING
AND UPDATED SCIENCE.
¯ FINDINGS.
¯ DEFINITIONS.
¯ REVISE INCIDENTAL TAKE LIMIT CALCULATION TO REFLECT NEW SCIENCE.
¯ FACTORING INCREASED REAL-TIME MONITORING AND UPDATED SCIENCE INTO DELTA SMELT
MANAGEMENT.
SEC. . FINDINGS. (a) The 2008 U.S. Fish and Wildlife Service delta smelt biolol~ical opinion contains a reasonable and prudent alternative that has three actions between December and June of every year that when tril~l~ered limit nel~ative flow in Old and Middle Rivers.
(b) In reviewinl~ the 2008 biolol~ical opinion, a 2010 National Research Council review concluded: "IT]here is substantial uncertainty rel~ardinl~ the amount of flow that should tril~l~er a reduction in exports. In other words, the specific choice of the nel~ative flow threshold for initiatinl~ the RPA is less clearly supported by scientific analyses. The biolol~ical benefits and the water requirements of this action are likely to be sensitive to the precise values of tril~l~er and threshold values. There clearly is a relationship between nel~ative OMR flows and mortality of smelt at the pumps, but the data do not permit a confident identification of the threshold values to use in the action, and they do not permit a confident assessment of the benefits to the population of the action. As a result, the implementation of this action needs to be accompanied by careful monitorinl~, adaptive manal~ement, and additional analyses that permit rel~ular review and adjustment of stratel~ies as knowledl~e improves." A Scientific Assessment of Alternatives for Reducinl~ Water Manal~ement Effects on Threatened and Endanl~ered Fishes in the California’s Bay Delta. Washinl~ton, DC: The National Academies Press, 2010 (pal~e 5).
(c) Almost 6 years after the 2008 biolol~ical opinion, considerable uncertainty still exists about the benefits to the Delta smelt population of reducinl~ nel~ative OMR flows.
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(d) In 2014, better information exists than was known in 2008 about what natural conditions like turbidity may lead to high salvage events and what management actions can be taken to avoid high salvage events.
(e) In the last 3 years, the United States Fish and Wildlife Service worked with the project operators to maximize water supply and in 2012 and 2014 the projects were able to take no adult Delta smelt.
(f) In 2014, the United States Fish and Wildlife Service performed enhanced trawling and monitoring for delta smelt between February and April at Jersey Point in the Delta. 329 delta smelt were found. But despite the presence of delta smelt at Jersey Point, no delta smelt were salvaged in the export facilities. The 2014 Jersey Point trawling shows that new enhanced monitoring can give agencies better information about where smelt are located, but that the Jersey Point location is too far from the export facilities to provide an unambiguous warning that delta smelt salvage is imminent.
(g) Enhanced trawling and monitoring for delta smelt in 2015 and beyond has the ability to inform real-time operations to maximize water deliveries while protecting delta smelt.
Sec, . DEFINITIONS,
(a) SMELT BIOLOGICAL OPINION. AS used in this title, the term "smelt biological opinion" means the biological opinion on the Long-Term Operational Criteria and Plan for coordination of the Central Valley Project and State Water Project issued by the United States Fish and Wildlife Service on December 15, 2008.
(b) DELTA. As used in this title, the term "Delta" means the Sacramento-San Joaquin Delta and the Suisun Marsh, as defined in Section 12220 and 29101 of the California Public Resources Code.
(c) DELTA SMELT. As used in this title, the term "delta smelt" means the fish species with the scientific name Hypomesus transpacificus.
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(d) OMR. As used in this title, the term "OMR" means Old and Middle River in the Delta.
(e) OMR FLOW OF -5000 CFS. As used in this title, the term "OMR flow of -5000 cfs" means Old and Middle River flow -5,000 cubic feet per second as measured by the smelt biological opinion and the National Marine Fisheries Service June 4, 2009 salmonid biological opinion.
(f) SECRETARY. As used in this title, the term "Secretary" means the Secretary of the Interior.
Sec. REVISE INCIDENTAL TAKE LIMIT CALCULATION TO REFLECT NEW SCIENCE.
(a) Using the best available salvage information from 1993 to 2012 and otherwise using the best scientific and commercial data available, by December 1 of the year of enactment of this Act, consistent with the Endangered Species Act and implementing regulations, the United States Fish and Wildlife Service shall modify the current incidental take limit in the 2008 smelt biological opinion so it avoids elevated, but statistically rare, salvage levels while allowing operations according to the reasonable and prudent alternatives in the smelt biological opinion.
(b) Unless the United States Fish and Wildlife Service determines in writing that some or all of the below provisions are not appropriate, the modified incidental take limit described in subsection (a) shall:
(1) be normalized for the abundance of pre-spawning adult Delta smelt (e.g., using the Fall Midwater Trawl Index);
(2) be based on a simulation of the salvage that would have occurred from 1993 through 2012 if OMR flow had been consistent with the 2008 biological opinion;
(3) base that simulation upon a correlation between annual salvage rates and historic water clarity and OMR flow during the adult salvage period; and
(4) set the incidental take limit as the 80% upper prediction interval derived from simulated salvage rates from 1993 to 2012.
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Sec. FACTORING INCREASED REAL-TIME MONITORING AND UPDATED SCIENCE INTO DELTA
SMELT MANAGEMENT.
(a) PURPOSE. The reasonable and prudent alternatives in the biological opinion issued by the United States Fish and Wildlife Service on December 15, 2008 shall be implemented consistent with the best scientific and commercial data available.
(b) INCREASED MONITORING TO INFORM REAL-TIME OPERATIONS.
1) Beginning in December 2014 through March 2015, and in each successive December through March, if high suspended sediment loads enter the Delta from the Sacramento River and appear likely to raise turbidity levels in Old River north of the export pumps from values below 12 Nephelometric Turbidity Units (NTU) to values above 12 NTU, the United States Fish and Wildlife Service shall conduct daily Kodiak Trawls in Old River in the vicinity of Station 902 in order to detect adult Delta smelt that might be moving within the turbidity cloud toward the export pumps; and
2) The United States Fish and Wildlife Service shall use results from these trawls to help determine how increased trawling can inform in real-time what levels of exports can be pumped without risk of a large smelt salvage event.
(c) PERIODIC REVIEW OF MONITORING. At least every five years, the United States Fish and Wildlife Service shall evaluate whether its monitoring program under subsection (b), combined with other monitoring programs in the Delta, is providing sufficient data to inform operations and determine whether such monitoring efforts should be changed in the short or long-term to provide more useful data.
(d) 2015 DELTA SMELT DISTRIBUTION STUDY. 1) In 2015, the United States Fish and Wildlife Service shall perform targeted sampling studies and monitoring to determine the geographic areas and types of habitat occupied by delta smelt during all life stages;
2) The sampling shall include recording water quality and tidal data; and
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3) Sampling should generally occur in areas not routinely sampled by existing monitoring programs, including but not limited to wetland channels, near- shore water, depths below 35 feet, and shallow-water. Such sampling may require sampling gears not used during existing monitoring programs.
(e) SCIENTIFICALLY SUPPORTED IMPLEMENTATION OF OLD AND MIDDLE RIVER FLOW REQUIREMENTS. Beginning December 1, 2014, in managing negative flow in the Old and Middle Rivers from December to June within the range established by the smelt biological opinion or any successor biological opinion, the Secretary must:
1) consider the relevant provisions of the biological opinion;
2) document any significant facts about real-time conditions relevant to the Secretary’s determinations, including-
A) whether targeted real-time fish monitoring in Old River in the vicinity of Bacon Island pursuant to subsection (b) indicates that a significant increase in the salvage of Delta smelt is imminent; and
B) whether near-term forecasts with available salvage models show under prevailing conditions that OMR flow of -5000 cfs will cause substantially increased take of delta smelt; and
3) articulate the basis for the Secretary’s determination to require raised or lowered OMR flow level within the range established by the smelt biological opinion or any successor biological opinion, including an explanation of the data examined and the connection between those data and the choice made, and a showing that any limitation of OMR flow to levels less negative than -5000 cubic feet per second in the short-term is necessary to avoid jeopardy after considering other alternatives, if any, that may have a lesser water supply impact.
(f) LEVEL OF DETAIL REQUIRED FOR ANALYSIS. In articulating the determinations required under subsection (e), the Secretary fully satisfy the requirements in paragraphs (e)(1) through (e)(3) but shall not be expected to provide a greater level of supporting detail for the analysis than feasible to provide within the short time frame permitted for timely decision-making in response to changing conditions in
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the Delta.
(1~) JUDICIAL REVIEW. Written determinations by the Secretary under subsection (e) and the calculation of a revised incidental take limit under Section shall constitute final al~ency action.
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