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U.S. Fish and Wildlife Service Completes Reinitiated Consultation on the 2008 Delta Smelt Biological Opinion and Associated Incidental Take for the 2017 Water Year

On September 27, the U.S. Fish and Wildlife Service (FWS) completed reinitiated consultation in relation to proposed modifications to Fall X2 for 2017 under § 7 of the federal Endangered Species Act (ESA). Through the reinitiated consultation, FWS amended Component 3, Action 4 (Action 4) of the Reasonable and Prudent Alternative (RPA) in FWS’ 2008 Biological Opinion (BiOp) on the Coordinated Long-Term Operation of the federal Central Valley Project (CVP) and State Water Project (SWP). The amendment allows the U.S. Bureau of Reclamation (Bureau) and the California Department of Water Resources (DWR) to operate their respective CVP and SWP facilities to achieve an average X2 location no greater (more eastward) than 80 kilometers (km) from the Golden Gate Bridge in October 2017. Without modification, Action 4 would have required the Bureau and DWR to operate to achieve an average X2 location no greater than 74 km from the Golden Gate Bridge in October.


In the 2008 BiOp, FWS concluded that, as proposed, CVP and SWP operations were likely to jeopardize the continued existence of Delta Smelt (Hypomesus transpacificus). The BiOp therefore set forth an RPA with actions that allow for continued operation of the CVP and SWP in compliance with the ESA. The RPA actions include revised water operations and habitat restoration and enhancement.

The objective for Action 4 is to improve fall habitat for Delta Smelt through increasing Delta outflow during the fall. The location of the Low Salinity Zone (LSZ) where juvenile Delta Smelt rear is indexed by X2. X2 is scaled as the distance in km from the Golden Gate Bridge where salinity is two parts per thousand. The BiOp states that the objective for Action 4 is to be accomplished by managing X2 by increasing Delta outflow during fall when the preceding water year is wetter than normal, subject to adaptive management. During September and October in years when the preceding precipitation and runoff period was wet or above normal as defined by the Sacramento Basin 40-30-30 index, Action 4 requires the Bureau and DWR to provide sufficient Delta outflow to maintain monthly average X2 no greater (more eastward) than 74 km (from the Golden Gate) in wet water years and 81 km in above normal water years. Action 4 involves a separate monthly X2 target for Novembers following wet or above normal years.

Action 4 allows for adaptive management by FWS. In accordance with the adaptive management plan, FWS reviews new scientific information when provided and may make changes to the action when the best available scientific information warrants. Action 4 may be modified by FWS consistent with the objective for the action based on information provided by the adaptive management program in consideration of the needs of other listed species, and of other CVP and SWP obligations.

Since the BiOp was issued in 2008, only Water Year 2011 was classified as a wet year in the Sacramento Valley, and no years have been classified as above normal years. In 2011, implementation of Action 4 was modified pursuant to court mandate, but the implementation criteria of Action 4 were functionally met in 2011.

In 2017, changes in operations at Oroville Dam for public safety resulted in significantly less carryover storage as compared to other wet years. Oroville Dam is operated by DWR, and is one of the key features of the SWP.

Reinitiated Consultation

In light of the conditions at Oroville Dam and new science and monitoring information on the Delta Smelt available in 2017, the Bureau sent a request for reinitiation of consultation on Action 4 to FWS on September 7, 2017. The request indicates that the reinitiation of consultation would be specific to Water Year 2017 implementation of Action 4, and would be separate from the Bureau’s 2016 request for reinitiation of consultation on the Coordinated Long-term Operation of the CVP and SWP, which will address system-wide operations.

In the request, the Bureau and DWR proposed to operate the CVP and SWP to achieve an X2 location of 74 km in September and no greater (more eastward) than 81 km in October. Operations for September and November would be consistent with the BiOp. The Bureau attached an effects analysis that concluded the proposed X2 action for 2017 would not adversely affect Delta Smelt. The Bureau subsequently revised its request to propose a targeted X2 location of no greater than 80 km in October.

On September 27, FWS issued a memorandum in response to the Bureau’s request that effectively amended the BiOp to modify Action 4 for October 2017. The memorandum notes that in addition to the fall X2 action and proposed modified operation of the Delta Cross Channel gates, a number of habitat actions have been implemented, are being implemented, and are planned to be implemented in the near future. FWS ultimately granted the Bureau’s request to allow operations to achieve an average X2 location no greater than 80 km in October 2017, although FWS encouraged Reclamation and DWR to hold X2 westward of 80 km as much as possible to avoid more substantial adverse effects to Delta Smelt critical habitat.

In parallel with its request for reinitiation of consultation, the Bureau conducted analysis of the environmental effects of the proposed modification to Action 4 pursuant to the National Environmental Policy Act (NEPA). The Bureau published a draft environmental assessment and accepted public comment in September. The Bureau received a number of comments, both supportive and critical. The Bureau issued a final Environmental Assessment and Finding of No Significant Impact (FONSI) on September 29. The final Environmental Assessment indicates that the proposed modification is expected to result in approximately 28,000 acre-feet of additional CVP water, and 151,000 acre-feet of additional SWP water, stored in San Luis Reservoir, as compared to the No Action Alternative.

Conclusion and Implications

On October 1, the Bureau was cleared to operate the CVP to meet the modified X2 requirement for the month. The modification results from the Bureau’s and FWS’ use of adaptive management pursuant to the BiOp, and has the potential to result in significant additional water storage south of the Delta. As of late October, DWR had not been cleared to change its operations to meet the modified X2 requirement, and was instead operating to meet the 74 km target in the BiOp. Whether DWR is ultimately able to modify operations to the new target, and whether the agencies engage in further adaptive management to make more significant changes within the rubric of the RPA, remains to be seen.

More information regarding the reinitiated consultation is available online at:

(Rebecca Akroyd, Daniel O’Hanlon)