[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6377 Introduced in House (IH)]
109th CONGRESS
2d Session
H. R. 6377
To authorize the implementation of the San Joaquin River Restoration
Settlement.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
December 6, 2006
Mr. Radanovich (for himself, Mr. Pombo, Mrs. Napolitano, Mr. Cardoza,
Mr. Costa, and Mr. George Miller of California) introduced the
following bill; which was referred to the Committee on Resources
_______________________________________________________________________
A BILL
To authorize the implementation of the San Joaquin River Restoration
Settlement.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``San Joaquin River Restoration
Settlement Act''.
SEC. 2. PURPOSE.
The purpose of this Act is to authorize implementation of the
Stipulation of Settlement dated September 13, 2006 (referred to in this
Act as the ``Settlement''), in the litigation entitled NATURAL
RESOURCES DEFENSE COUNCIL, et al. v. KIRK RODGERS, et al., United
States District Court, Eastern District of California, No. CIV. S-88-
1658-LKK/GGH.
SEC. 3. DEFINITIONS.
In this Act, the terms ``Friant Division long-term contractors'',
``Interim Flows'', ``Restoration Flows'', ``Recovered Water Account'',
``Restoration Goal'', and ``Water Management Goal'' have the meanings
given the terms in the Settlement.
SEC. 4. IMPLEMENTATION OF SETTLEMENT.
(a) In General.--The Secretary of the Interior (referred to in this
Act as the ``Secretary'') is hereby authorized and directed to
implement the terms and conditions of the Settlement in cooperation
with the State of California, including the following measures as these
measures are prescribed in the Settlement:
(1) Design and construct channel and structural
improvements as described in paragraph 11 of the Settlement,
provided, however, that the Secretary shall not make or fund
any such improvements to facilities or property of the State of
California without the approval of the State of California and
the State's agreement in 1 or more Memoranda of Understanding
to participate where appropriate.
(2) Modify Friant Dam operations so as to provide
Restoration Flows and Interim Flows.
(3) Acquire water, water rights, or options to acquire
water as described in paragraph 13 of the Settlement, provided,
however, such acquisitions shall only be made from willing
sellers and not through eminent domain.
(4) Implement the terms and conditions of paragraph 16 of
the Settlement related to recirculation, recapture, reuse,
exchange, or transfer of water released for Restoration Flows
or Interim Flows, for the purpose of accomplishing the Water
Management Goal of the Settlement, subject to--
(A) applicable provisions of California water law;
(B) the Secretary's use of Central Valley Project
facilities to make Project water (other than water
released from Friant Dam pursuant to the Settlement)
and water acquired through transfers available to
existing south-of-Delta Central Valley Project
contractors; and
(C) the Secretary's performance of the Agreement of
November 24, 1986, between the United States of America
and the Department of Water Resources of the State of
California for the coordinated operation of the Central
Valley Project and the State Water Project as
authorized by Congress in section 2(d) of the Act of
August 26, 1937 (50 Stat. 850, 100 Stat. 3051),
including any agreement to resolve conflicts arising
from said Agreement.
(5) Develop and implement the Recovered Water Account as
specified in paragraph 16(b) of the Settlement, including the
pricing and payment crediting provisions described in paragraph
16(b)(3) of the Settlement, provided that all other provisions
of Federal reclamation law shall remain applicable.
(b) Agreements.--
(1) Agreements with the state.--In order to facilitate or
expedite implementation of the Settlement, the Secretary is
authorized and directed to enter into appropriate agreements,
including cost sharing agreements, with the State of
California.
(2) Other agreements.--The Secretary is authorized to enter
into contracts, memoranda of understanding, financial
assistance agreements, cost sharing agreements, and other
appropriate agreements with State, tribal, and local
governmental agencies, and with private parties, including
agreements related to construction, improvement, and operation
and maintenance of facilities, subject to any terms and
conditions that the Secretary deems necessary to achieve the
purposes of the Settlement.
(c) Acceptance and Expenditure of Non-Federal Funds.--The Secretary
is authorized to accept and expend non-Federal funds in order to
facilitate implementation of the Settlement.
(d) Mitigation of Impacts.--Prior to the implementation of
decisions or agreements to construct, improve, operate, or maintain
facilities that the Secretary determines are needed to implement the
Settlement, the Secretary shall identify--
(1) the impacts associated with such actions; and
(2) the measures which shall be implemented to mitigate
impacts on adjacent and downstream water users and landowners.
(e) Design and Engineering Studies.--The Secretary is authorized to
conduct any design or engineering studies that are necessary to
implement the Settlement.
(f) Effect on Contract Water Allocations.--Except as otherwise
provided in this section, the implementation of the Settlement and the
reintroduction of California Central Valley Spring Run Chinook salmon
pursuant to the Settlement and section 10, shall not result in the
involuntary reduction in contract water allocations to Central Valley
Project long-term contractors, other than Friant Division long-term
contractors.
(g) Effect on Existing Water Contracts.--Except as provided in the
Settlement and this Act, nothing in this Act shall modify or amend the
rights and obligations of the parties to any existing water service,
repayment, purchase or exchange contract.
SEC. 5. ACQUISITION AND DISPOSAL OF PROPERTY; TITLE TO FACILITIES.
(a) Title to Facilities.--Unless acquired pursuant to subsection
(b), title to any facility or facilities, stream channel, levees, or
other real property modified or improved in the course of implementing
the Settlement authorized by this Act, and title to any modifications
or improvements of such facility or facilities, stream channel, levees,
or other real property--
(1) shall remain in the owner of the property; and
(2) shall not be transferred to the United States on
account of such modifications or improvements.
(b) Acquisition of Property.--
(1) In general.--The Secretary is authorized to acquire
through purchase from willing sellers any property, interests
in property, or options to acquire real property needed to
implement the Settlement authorized by this Act.
(2) Applicable law.--The Secretary is authorized, but not
required, to exercise all of the authorities provided in
section 2 of the Act of August 26, 1937 (50 Stat. 844, chapter
832), to carry out the measures authorized in this section and
section 4.
(c) Disposal of Property.--
(1) In general.--Upon the Secretary's determination that
retention of title to property or interests in property
acquired pursuant to this Act is no longer needed to be held by
the United States for the furtherance of the Settlement, the
Secretary is authorized to dispose of such property or interest
in property on such terms and conditions as the Secretary deems
appropriate and in the best interest of the United States,
including possible transfer of such property to the State of
California.
(2) Right of first refusal.--In the event the Secretary
determines that property acquired pursuant to this Act through
the exercise of its eminent domain authority is no longer
necessary for implementation of the Settlement, the Secretary
shall provide a right of first refusal to the property owner
from whom the property was initially acquired, or his or her
successor in interest, on the same terms and conditions as the
property is being offered to other parties.
(3) Disposition of proceeds.--Proceeds from the disposal by
sale or transfer of any such property or interests in such
property shall be deposited in the fund established by section
9(c).
SEC. 6. COMPLIANCE WITH APPLICABLE LAW.
(a) Applicable Law.--
(1) In general.--In undertaking the measures authorized by
this Act, the Secretary and the Secretary of Commerce shall
comply with all applicable Federal and State laws, rules, and
regulations, including 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.), as necessary.
(2) Environmental reviews.--The Secretary and the Secretary
of Commerce are authorized and directed to initiate and
expeditiously complete applicable environmental reviews and
consultations as may be necessary to effectuate the purposes of
the Settlement.
(b) Effect on State Law.--Nothing in this Act shall preempt State
law or modify any existing obligation of the United States under
Federal reclamation law to operate the Central Valley Project in
conformity with State law.
(c) Use of Funds for Environmental Reviews.--
(1) Definition of environmental review.--For purposes of
this subsection, the term ``environmental review'' includes any
consultation and planning necessary to comply with subsection
(a).
(2) Participation in environmental review process.--In
undertaking the measures authorized by section 4, and for which
environmental review is required, the Secretary may provide
funds made available under this Act to affected Federal
agencies, State agencies, local agencies, and Indian tribes if
the Secretary determines that such funds are necessary to allow
the Federal agencies, State agencies, local agencies, or Indian
tribes to effectively participate in the environmental review
process.
(3) Limitation.--Funds may be provided under paragraph (2)
only to support activities that directly contribute to the
implementation of the terms and conditions of the Settlement.
(d) Nonreimbursable Funds.--The United States' share of the costs
of implementing this Act shall be nonreimbursable under Federal
reclamation law, provided that nothing in this subsection shall limit
or be construed to limit the use of the funds assessed and collected
pursuant to sections 3406(c)(1) and 3407(d)(2) of the Reclamation
Projects Authorization and Adjustment Act of 1992 (Public Law 102-575;
106 Stat. 4721, 4727), for implementation of the Settlement, nor shall
it be construed to limit or modify existing or future Central Valley
Project Ratesetting Policies.
SEC. 7. COMPLIANCE WITH CENTRAL VALLEY PROJECT IMPROVEMENT ACT.
Congress hereby finds and declares that the Settlement satisfies
and discharges all of the obligations of the Secretary contained in
section 3406(c)(1) of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575; 106 Stat. 4721), provided,
however, that--
(1) the Secretary shall continue to assess and collect the
charges provided in section 3406(c)(1) of the Reclamation
Projects Authorization and Adjustment Act of 1992 (Public Law
102-575; 106 Stat. 4721), as provided in the Settlement and
section 9(d); and
(2) those assessments and collections shall continue to be
counted towards the requirements of the Secretary contained in
section 3407(c)(2) of the Reclamation Projects Authorization
and Adjustment Act of 1992 (Public Law 102-575; 106 Stat.
4726).
SEC. 8. NO PRIVATE RIGHT OF ACTION.
(a) In General.--Nothing in this Act confers upon any person or
entity not a party to the Settlement a private right of action or claim
for relief to interpret or enforce the provisions of this Act or the
Settlement.
(b) Applicable Law.--This section shall not alter or curtail any
right of action or claim for relief under any other applicable law.
SEC. 9. APPROPRIATIONS; SETTLEMENT FUND.
(a) Implementation Costs.--
(1) In general.--The costs of implementing the Settlement
shall be covered by payments or in kind contributions made by
Friant Division contractors and other non-Federal parties,
including the funds provided in paragraphs (1) through (5) of
subsection (c), estimated to total $440,000,000, of which the
non-Federal payments are estimated to total $200,000,000 (at
October 2006 price levels) and the amount from repaid Central
Valley Project capital obligations is estimated to total
$240,000,000, the additional Federal appropriation of
$250,000,000 authorized pursuant to subsection (b)(1), and such
additional funds authorized pursuant to subsection (b)(2);
provided however, that the costs of implementing the provisions
of section 4(a)(1) shall be shared by the State of California
pursuant to the terms of a Memorandum of Understanding executed
by the State of California and the Parties to the Settlement on
September 13, 2006, which includes at least $110,000,000 of
State funds.
(2) Additional agreements.--
(A) In general.--The Secretary shall enter into 1
or more agreements to fund or implement improvements on
a project-by-project basis with the State of
California.
(B) Requirements.--Any agreements entered into
under subparagraph (A) shall provide for recognition of
either monetary or in-kind contributions toward the
State of California's share of the cost of implementing
the provisions of section 4(a)(1).
(3) Limitation.--Except as provided in the Settlement, to
the extent that costs incurred solely to implement this
Settlement would not otherwise have been incurred by any entity
or public or local agency or subdivision of the State of
California, such costs shall not be borne by any such entity,
agency, or subdivision of the State of California, unless such
costs are incurred on a voluntary basis.
(b) Authorization of Appropriations.--
(1) In general.--In addition to the funds provided in
paragraphs (1) through (5) of subsection (c), there are also
authorized to be appropriated not to exceed $250,000,000 (at
October 2006 price levels) to implement this Act and the
Settlement, to be available until expended; provided however,
that the Secretary is authorized to spend such additional
appropriations only in amounts equal to the amount of funds
deposited in the Fund (not including payments under subsection
(c)(2), proceeds under subsection (c)(3) other than an amount
equal to what would otherwise have been deposited under
subsection (c)(1) in the absence of issuance of the bond, and
proceeds under subsection (c)(4)), the amount of in-kind
contributions, and other non-Federal payments actually
committed to the implementation of this Act or the Settlement.
(2) Other funds.--The Secretary is authorized to use monies
from the Fund created under section 3407 of the Reclamation
Projects Authorization and Adjustment Act of 1992 (Public Law
102-575; 106 Stat. 4727) for purposes of this Act.
(c) Fund.--There is hereby established within the Treasury of the
United States a fund, to be known as the ``San Joaquin River
Restoration Fund'', into which the following shall be deposited and
used solely for the purpose of implementing the Settlement, to be
available for expenditure without further appropriation:
(1) Subject to subsection (d), at the beginning of the
fiscal year following enactment of this Act, all payments
received pursuant to section 3406(c)(1) of the Reclamation
Projects Authorization and Adjustment Act of 1992 (Public Law
102-575; 106 Stat. 4721).
(2) Subject to subsection (d), the capital component (not
otherwise needed to cover operation and maintenance costs) of
payments made by Friant Division long-term contractors pursuant
to long-term water service contracts beginning the first fiscal
year after the date of enactment of this Act. The capital
repayment obligation of such contractors under such contracts
shall be reduced by the amount paid pursuant to this paragraph
and the appropriate share of the existing Federal investment in
the Central Valley Project to be recovered by the Secretary
pursuant to Public Law 99-546 (100 Stat. 3050) shall be reduced
by an equivalent sum.
(3) Proceeds from a bond issue, federally-guaranteed loan,
or other appropriate financing instrument, to be issued or
entered into by an appropriate public agency or subdivision of
the State of California pursuant to subsection (d)(2).
(4) Proceeds from the sale of water pursuant to the
Settlement, or from the sale of property or interests in
property as provided in section 5.
(5) Any non-Federal funds, including State cost-sharing
funds, contributed to the United States for implementation of
the Settlement, which the Secretary may expend without further
appropriation for the purposes for which contributed.
(d) Guaranteed Loans and Other Financing Instruments.--
(1) In general.--The Secretary is authorized to enter into
agreements with appropriate agencies or subdivisions of the
State of California in order to facilitate a bond issue,
federally-guaranteed loan, or other appropriate financing
instrument, for the purpose of implementing this Settlement.
(2) Requirements.--If the Secretary and an appropriate
agency or subdivision of the State of California enter into
such an agreement, and if such agency or subdivision issues 1
or more revenue bonds, procures a federally secured loan, or
other appropriate financing to fund implementation of the
Settlement, and if such agency deposits the proceeds received
from such bonds, loans, or financing into the Fund pursuant to
subsection (c)(3), monies specified in paragraphs (1) and (2)
of subsection (c) shall be provided by the Friant Division
long-term contractors directly to such public agency or
subdivision of the State of California to repay the bond, loan
or financing rather than into the Fund.
(3) Disposition of payments.--After the satisfaction of any
such bond, loan, or financing, the payments specified in
paragraphs (1) and (2) of subsection (c) shall be paid directly
into the Fund authorized by this section.
(e) Limitation on Contributions.--Payments made by long-term
contractors who receive water from the Friant Division and Hidden and
Buchanan Units of the Central Valley Project pursuant to sections
3406(c)(1) and 3407(d)(2) of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575; 106 Stat. 4721, 4727) and
payments made pursuant to paragraph 16(b)(3) of the Settlement and
subsection (c)(2) shall be the limitation of such entities' direct
financial contribution to the Settlement, subject to the terms and
conditions of paragraph 21 of the Settlement.
(f) No Additional Expenditures Required.--Nothing in this Act shall
be construed to require a Federal official to expend Federal funds not
appropriated by Congress, or to seek the appropriation of additional
funds by Congress, for the implementation of the Settlement.
(g) Reach 4B.--
(1) Study.--
(A) In general.--In accordance with the Settlement
and the Memorandum of Understanding executed pursuant
to paragraph 6 of the Settlement, the Secretary shall
conduct a study that specifies--
(i) the costs of undertaking any work
required under paragraph 11(a)(3) of the
Settlement to increase the capacity of Reach 4B
prior to reinitiation of Restoration Flows;
(ii) the impacts associated with
reinitiation of such flows; and
(iii) measures that shall be implemented to
mitigate impacts.
(B) Deadline.--The study under subparagraph (A)
shall be completed prior to restoration of any flows
other than Interim Flows.
(2) Report.--
(A) In general.--The Secretary shall file a report
with Congress not later than 90 days after issuing a
determination, as required by the Settlement, on
whether to expand channel conveyance capacity to 4500
cubic feet per second in Reach 4B of the San Joaquin
River, or use an alternative route for pulse flows,
that--
(i) explains whether the Secretary has
decided to expand Reach 4B capacity to 4500
cubic feet per second; and
(ii) addresses the following matters:
(I) The basis for the Secretary's
determination, whether set out in
environmental review documents or
otherwise, as to whether the expansion
of Reach 4B would be the preferable
means to achieve the Restoration Goal
as provided in the Settlement,
including how different factors were
assessed such as comparative biological
and habitat benefits, comparative
costs, relative availability of State
cost-sharing funds, and the comparative
benefits and impacts on water
temperature, water supply, private
property, and local and downstream
flood control.
(II) The Secretary's final cost
estimate for expanding Reach 4B
capacity to 4500 cubic feet per second,
or any alternative route selected, as
well as the alternative cost estimates
provided by the State, by the
Restoration Administrator, and by the
other parties to the Settlement.
(III) The Secretary's plan for
funding the costs of expanding Reach 4B
or any alternative route selected,
whether by existing Federal funds
provided under this Act, by non-Federal
funds, by future Federal
appropriations, or some combination of
such sources.
(B) Determination required.--The Secretary shall,
to the extent feasible, make the determination in
subparagraph (A) prior to undertaking any substantial
construction work to increase capacity in Reach 4B.
(3) Costs.--If the Secretary's estimated Federal cost for
expanding Reach 4B in paragraph (2), in light of the
Secretary's funding plan set out in paragraph (2), would exceed
the remaining Federal funding authorized by this Act (including
all funds reallocated, all funds dedicated, and all new funds
authorized by this Act and separate from all commitments of
State and other non-Federal funds and in-kind commitments),
then before the Secretary commences actual construction work in
Reach 4B (other than planning, design, feasibility, or other
preliminary measures) to expand capacity to 4500 cubic feet per
second to implement this Settlement, Congress must have
increased the applicable authorization ceiling provided by this
Act in an amount at least sufficient to cover the higher
estimated Federal costs.
SEC. 10. CALIFORNIA CENTRAL VALLEY SPRING RUN CHINOOK SALMON.
(a) Finding.--Congress finds that the implementation of the
Settlement to resolve 18 years of contentious litigation regarding
restoration of the San Joaquin River and the reintroduction of the
California Central Valley Spring Run Chinook salmon is a unique and
unprecedented circumstance that requires clear expressions of
Congressional intent regarding how the provisions of the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) are utilized to achieve
the goals of restoration of the San Joaquin River and the successful
reintroduction of California Central Valley Spring Run Chinook salmon.
(b) Reintroduction in the San Joaquin River.--California Central
Valley Spring Run Chinook salmon shall be reintroduced in the San
Joaquin River below Friant Dam pursuant to section 10(j) of the
Endangered Species Act of 1973 (16 U.S.C. 1539(j)) and the Settlement,
provided that the Secretary of Commerce finds that a permit for the
reintroduction of California Central Valley Spring Run Chinook salmon
may be issued pursuant to section 10(a)(1)(A) of the Endangered Species
Act of 1973 (16 U.S.C. 1539(a)(1)(A)).
(c) Final Rule.--
(1) Definition of third party.--For the purpose of this
subsection, the term ``third party'' means persons or entities
diverting or receiving water pursuant to applicable State and
Federal law and shall include Central Valley Project
contractors outside of the Friant Division of the Central
Valley Project and the State Water Project.
(2) Issuance.--The Secretary of Commerce shall issue a
final rule pursuant to section 4(d) of the Endangered Species
Act of 1973 (16 U.S.C. 1533(d)) governing the incidental take
of reintroduced California Central Valley Spring Run Chinook
salmon prior to the reintroduction.
(3) Required components.--The rule issued under paragraph
(2) shall provide that the reintroduction will not impose more
than de minimis: water supply reductions, additional storage
releases, or bypass flows on unwilling third parties due to
such reintroduction.
(4) Applicable law.--Nothing in this section--
(A) diminishes the statutory or regulatory
protections provided in the Endangered Species Act for
any species listed pursuant to section 4 of the
Endangered Species Act of 1973 (16 U.S.C. 1533) other
than the reintroduced population of California Central
Valley Spring Run Chinook salmon, including protections
pursuant to existing biological opinions or new
biological opinions issued by the Secretary or
Secretary of Commerce; or
(B) precludes the Secretary or Secretary of
Commerce from imposing protections under the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) for other
species listed pursuant to section 4 of that Act (16
U.S.C. 1533) because those protections provide
incidental benefits to such reintroduced California
Central Valley Spring Run Chinook salmon.
(d) Report.--
(1) In general.--Not later than December 31, 2024, the
Secretary of Commerce shall report to Congress on the progress
made on the reintroduction set forth in this section and the
Secretary's plans for future implementation of this section.
(2) Inclusions.--The report under paragraph (1) shall
include--
(A) an assessment of the major challenges, if any,
to successful reintroduction;
(B) an evaluation of the effect, if any, of the
reintroduction on the existing population of California
Central Valley Spring Run Chinook salmon existing on
the Sacramento River or its tributaries; and
(C) an assessment regarding the future of the
reintroduction.
(e) FERC Projects.--
(1) In general.--With regard to California Central Valley
Spring Run Chinook salmon reintroduced pursuant to the
Settlement, the Secretary of Commerce shall exercise its
authority under section 18 of the Federal Power Act (16 U.S.C.
811) by reserving its right to file prescriptions in
proceedings for projects licensed by the Federal Energy
Regulatory Commission on the Calaveras, Stanislaus, Tuolumne,
Merced, and San Joaquin rivers and otherwise consistent with
subsection (c) until after the expiration of the term of the
Settlement, December 31, 2025, or the expiration of the
designation made pursuant to subsection (b), whichever ends
first.
(2) Effect of subsection.--Nothing in this subsection shall
preclude the Secretary of Commerce from imposing prescriptions
pursuant to section 18 of the Federal Power Act (16 U.S.C. 811)
solely for other anadromous fish species because those
prescriptions provide incidental benefits to such reintroduced
California Central Valley Spring Run Chinook salmon.
(f) Effect of Section.--Nothing in this section is intended or
shall be construed--
(1) to modify the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) or the Federal Power Act (16 U.S.C. 791a et
seq.); or
(2) to establish a precedent with respect to any other
application of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) or the Federal Power Act (16 U.S.C. 791a et
seq.).
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