[Congressional Bills 113th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5781 Referred in Senate (RFS)]
113th CONGRESS
2d Session
H. R. 5781
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 10, 2014
Received; read twice and referred to the Committee on Energy and
Natural Resources
_______________________________________________________________________
AN ACT
To provide short-term water supplies to drought-stricken California.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) Short Title.--This Act may be cited as the ``California
Emergency Drought Relief Act of 2014''.
(b) Table of Contents.--The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
TITLE I--CALIFORNIA EMERGENCY DROUGHT RELIEF
Sec. 101. Definitions.
Sec. 102. Emergency projects.
Sec. 103. Temporary operational flexibility for first few storms of the
water year.
Sec. 104. Progress report.
Sec. 105. Status of surface storage studies.
TITLE II--PROTECTION OF THIRD-PARTY WATER RIGHTS
Sec. 201. Offset for State Water Project.
Sec. 202. Area of origin protections.
Sec. 203. No redirected adverse impacts.
Sec. 204. Allocations For Sacramento Valley Contractors.
TITLE III--MISCELLANEOUS PROVISIONS
Sec. 301. Effect on existing obligations.
Sec. 302. Termination of authorities.
TITLE I--CALIFORNIA EMERGENCY DROUGHT RELIEF
SEC. 101. 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) Delta.--The term ``Delta'' means the Sacramento-San
Joaquin Delta and the Suisun Marsh, as defined in sections
12220 and 29101 of the California Public Resources Code.
(3) Negative impact on the long-term survival.--The term
``negative impact on the long-term survival'' means 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.
(4) Salmonid biological opinion.--The term ``salmonid
biological opinion'' means the biological opinion issued by the
National Marine Fisheries Service on June 4, 2009.
(5) Secretaries.--The term ``Secretaries'' means--
(A) the Secretary of Commerce; and
(B) the Secretary of the Interior.
(6) Smelt biological opinion.--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.
(7) State.--The term ``State'' means the State of
California.
(8) 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.
SEC. 102. EMERGENCY PROJECTS.
(a) In General.--Subject to the priority of individuals or
entities, including those with Sacramento River Settlement Contracts,
that have priority to the diversion and use of water over water rights
held by the United States for operations of the Central Valley Project
and over rights held by the State for operations of the State Water
Project and the United States obligation to make a substitute supply of
water available to the San Joaquin River Exchange Contractors, the
Secretaries shall direct the operations of the Central Valley Project
and allow the State Water Project to provide the maximum quantity of
water supplies possible to Central Valley Project agricultural,
municipal and industrial, and refuge service and repayment contractors,
and State Water Project contractors, by approving, consistent with
applicable laws (including regulations)--
(1) any project or operations to provide additional water
supplies if there is any possible way whatsoever that the
Secretaries can do so unless the project or operations
constitute a highly inefficient way of providing additional
water supplies; and
(2) any projects or operations as quickly as possible based
on available information to address the emergency conditions.
(b) Mandate.--In carrying out subsection (a), the applicable
Secretary shall--
(1) authorize and implement actions to ensure that the
Delta Cross Channel Gates remain open to the maximum extent
practicable using findings from the United States Geological
Survey on diurnal behavior of juvenile salmonids, timed to
maximize the peak flood tide period and provide water supply
and water quality benefits, consistent with operational
criteria and monitoring set forth in 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)(A) implement turbidity control strategies that allow
for increased water deliveries for the Central Valley Project
and State Water Project while avoiding a negative impact on the
long-term survival delta smelt (Hypomesus transpacificus) due
to entrainment at Central Valley Project and State Water
Project pumping plants;
(B) operating within the ranges provided for in the smelt
biological opinion and the salmonid biological opinion to
minimize water supply reductions for the Central Valley Project
and the State Water Project, manage reverse flow in Old and
Middle Rivers at -5000 cubic feet per second (cfs) unless
current scientific data indicate a less negative Old and Middle
River flow is necessary to avoid a negative impact on the long-
term survival of the listed species; and
(C) show in writing that any determination to manage OMR
reverse flow at rates less negative than -5000 cubic feet per
second is necessary to avoid a significant negative impact on
the long-term survival of the Delta smelt, including an
explanation of the data examined and the connection between
those data and the choice made prior to reducing pumping to a
rate less negative than -5000 cfs;
(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 sale, transfers, or
exchanges of water from agencies with rights to divert water
from the San Joaquin River or its tributaries on the condition
that a proposed sale, transfer, or exchange under this
paragraph may only proceed if the Secretary of the Interior
determines that the environmental effects of the proposed sale,
transfer, or exchange are consistent with effects permissible
under applicable law (including regulations), and provided that
Delta conditions are suitable to allow movement of the
acquired, transferred, or exchanged water through the Delta
consistent with the Central Valley Project's and the State
Water Project's permitted water rights;
(4) 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 Central Valley Project and State Water
Project 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;
(5)(A) 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 with voluntarily fallowing nonpermanent
crops in the State, within 30 days of receiving such a request;
and
(B) 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);
(6) allow any North of Delta agricultural water service
contractor with unused Central Valley Project water to take
delivery of such unused water through April 15, of the contract
year immediately following the contract year in which such
water was allocated, if--
(A) the contractor requests the extension; and
(B) the requesting contractor certifies that,
without the extension, the contractor would have
insufficient supplies to adequately meet water delivery
obligations;
(7) to the maximum extent possible based on the
availability and quality of groundwater and without causing
land subsidence--
(A) meet the Level 2 and Level 4 water supply needs
of units of the National Wildlife Refuge System in the
Central Valley of California, the Gray Lodge, Los
Banos, Volta, North Grasslands, and Mendota State
wildlife management areas, and the Grasslands Resources
Conservation District in the Central Valley of
California through the improvement or installation of
wells to use groundwater resources and the purchase of
water from willing sellers; and
(B) make a quantity of Central Valley Project water
obtained from the measures implemented under
subparagraph (A) available to Central Valley Project
water service contractors; and
(8) implement instream and offsite projects in the Delta
and upstream in the 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.
(c) 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 (b), the provisions of this section
shall apply to those Federal agencies.
(d) 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 (b).
(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
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 in writing.
(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. 103. TEMPORARY OPERATIONAL FLEXIBILITY FOR FIRST FEW STORMS OF THE
WATER YEAR.
(a) In General.--Consistent with avoiding a negative impact on the
long-term survival in the short-term upon listed fish species beyond
the range of those authorized under the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.) and other environmental protections under
subsection (d), the Secretaries shall authorize the Central Valley
Project and the State Water Project, combined, to operate at levels
that result in negative Old and Middle River flows at -7500 cubic feet
per second (based on United States Geological Survey gauges on Old and
Middle Rivers) daily average for 28 cumulative days after October 1, as
described in subsection (b).
(b) Days of Temporary Operational Flexibility.--The temporary
operational flexibility described in subsection (a) shall be authorized
on days that the California Department of Water Resources determines
the daily average river flow of the Sacramento River is at, or above,
17,000 cubic feet per second as measured at the Sacramento River at
Freeport gauge maintained by the United States Geologic Survey.
(c) Compliance With ESA Authorizations.--In carrying out this
section, the Secretaries may continue to impose any requirements under
the smelt and salmonid biological opinions during any period of
temporary operational flexibility as they determine are reasonably
necessary to avoid additional negative impacts on the long-term
survival of a listed fish species beyond the range of those authorized
under the Endangered Species Act of 1973.
(d) Other Environmental Protections.--
(1) The Secretaries' actions under this section shall be
consistent with applicable regulatory requirements under state
law, including State Water Resources Control Board Decision
1641, as it may be implemented in any given year.
(2) During the first flush of sediment out of the Delta in
each water year, and provided that such determination is based
upon objective evidence, OMR flow may be managed at rates less
negative than -5000 cubic feet per second for a minimum
duration to avoid movement of adult Delta smelt (Hypomesus
transpacificus) to areas in the southern Delta that would be
likely to increase entrainment at Central Valley Project and
State Water Project pumping plants.
(3) This section shall not affect the application of the
salmonid biological opinion from April 1 to May 31, unless the
Secretary of Commerce finds that some or all of such applicable
requirements may be adjusted during this time period to provide
emergency water supply relief without resulting in additional
adverse effects beyond those authorized under the Endangered
Species Act of 1973. In addition to any other actions to
benefit water supply, the Secretary and the Secretary of
Commerce shall consider allowing through-Delta water transfers
to occur during this period.
(4) During operations under this section, the Secretary of
the Interior, 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 ensure incidental take
levels are not exceeded, and to identify potential negative
impacts and actions, if any, necessary to mitigate impacts of
the temporary operational flexibility to species listed under
the Endangered Species Act of 1973.
(e) Technical Adjustments to Target Period.--If, before temporary
operational flexibility has been implemented on 28 cumulative days, the
Secretaries operate the Central Valley Project and the State Water
Project combined at levels that result in Old and Middle River flows
less negative than -7500 cubic feet per second during days of temporary
operational flexibility as defined in subsection (b), the duration of
such operation shall not be counted toward the 28 cumulative days
specified in subsection (a).
(f) Emergency Consultation; Effect on Running Averages.--
(1) If necessary to implement the provisions of this
section, the Secretary of the Interior shall use the emergency
consultation procedures under the Endangered Species Act of
1973 and its implementing regulation at section 402.05, title
50, Code of Federal Regulations, to temporarily adjust the
operating criteria under the biological opinions, solely for
the 28 cumulative days of temporary operational flexibility--
(A) no more than necessary to achieve the purposes
of this section consistent with the environmental
protections in subsections (c) and (d); and
(B) including, as appropriate, adjustments to
ensure that the actual flow rates during the periods of
temporary operational flexibility do not count toward
the 5-day and 14-day running averages of tidally
filtered daily Old and Middle River flow requirements
under the biological opinions.
(2) At the conclusion of the 28 cumulative days of
temporary operational flexibility, the Secretary of the
Interior shall not reinitiate consultation on these adjusted
operations, and no mitigation shall be required, if the effects
on listed fish species of these operations under this section
remain within the range of those authorized under the
Endangered Species Act. If the Secretary of the Interior
reinitiates consultation, no mitigation measures shall be
required.
(g) Level of Detail Required for Analysis.--In articulating the
determinations required under this section, the Secretaries shall fully
satisfy the requirements herein but shall not be expected to provide a
greater level of supporting detail for the analysis than feasible to
provide within the short time frame permitted for timely decision-
making in response to changing conditions in the Delta.
SEC. 104. PROGRESS REPORT.
Ninety days after the date of the enactment of this Act and every
90 days thereafter, the Secretaries shall provide a progress report
describing the implementation of sections 101, 102, and 103 to the
Committee on Natural Resources in the House of Representatives and the
Committee on Energy and Natural Resources in the Senate.
SEC. 105. STATUS OF SURFACE STORAGE STUDIES.
One year after the date of the enactment of this Act, the Secretary
of the Interior shall provide a progress report on the status of
feasibility studies undertaken pursuant to section 103(d)(1) to the
Committee on Natural Resources in the House of Representatives and the
Committee on Energy and Natural Resources in the Senate. The report
shall include timelines for study completion, draft environmental
impact statements, final environmental impact statements, and Records
of Decision.
TITLE II--PROTECTION OF THIRD-PARTY WATER RIGHTS
SEC. 201. OFFSET FOR STATE WATER PROJECT.
(a) Implementation Impacts.--The Secretary of the Interior shall
confer with the California Department of Fish and Wildlife in
connection with the implementation of this Act on potential impacts to
any consistency determination for operations of the State Water Project
issued pursuant to California Fish and Game Code section 2080.1.
(b) Additional Yield.--If, as a result of the application of this
Act, the California Department of Fish and Wildlife--
(1) revokes the consistency determinations pursuant to
California Fish and Game Code section 2080.1 that are
applicable to the State Water Project;
(2) amends or issues one or more new consistency
determinations pursuant to California Fish and Game Code
section 2080.1 in a manner that directly or indirectly results
in reduced water supply to the State Water Project as compared
with the water supply available under the smelt biological
opinion and the salmonid biological opinion; or
(3) requires take authorization under section 2081 for
operation of the State Water Project in a manner that directly
or indirectly results in reduced water supply to the State
Water Project as compared with the water supply available under
the smelt biological opinion and the salmonid biological
opinion,
and as a consequence of the Department's action, Central Valley Project
yield is greater than it would have been absent the Department's
actions, then that additional yield shall be made available to the
State Water Project for delivery to State Water Project contractors to
offset losses resulting from the Department's action.
(c) Notification Related to Environmental Protections.--The
Secretary of the Interior shall immediately notify the Director of the
California Department of Fish and Wildlife in writing if the Secretary
of the Interior determines that implementation of the smelt biological
opinion and the salmonid biological opinion consistent with this Act
reduces environmental protections for any species covered by the
opinions.
SEC. 202. AREA OF ORIGIN PROTECTIONS.
(a) In General.--The Secretary of the Interior is directed, in the
operation of the Central Valley Project, to adhere to California's
water rights laws governing water rights priorities and to honor water
rights senior to those held by the United States for operation of the
Central Valley Project, regardless of the source of priority, including
any appropriative water rights initiated prior to December 19, 1914, as
well as water rights and other priorities perfected or to be perfected
pursuant to California Water Code Part 2 of Division 2. Article 1.7
(commencing with section 1215 of chapter 1 of part 2 of division 2,
sections 10505, 10505.5, 11128, 11460, 11461, 11462, and 11463, and
sections 12200 to 12220, inclusive).
(b) Diversions.--Any action undertaken by the Secretaries pursuant
to both this Act and section 7 of the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.) that requires that diversions from the
Sacramento River or the San Joaquin River watersheds upstream of the
Delta be bypassed shall not be undertaken in a manner that alters the
water rights priorities established by California law.
(c) Endangered Species Act.--Nothing in this title alters the
existing authorities provided to and obligations placed upon the
Federal Government under the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.), as amended.
(d) Contracts.--With respect to individuals and entities with water
rights on the Sacramento River, the mandates of this section may be
met, in whole or in part, through a contract with the Secretary
executed pursuant to section 14 of Public Law 76-260; 53 Stat. 1187 (43
U.S.C. 389) that is in conformance with the Sacramento River Settlement
Contracts renewed by the Secretary in 2005.
SEC. 203. NO REDIRECTED ADVERSE IMPACTS.
(a) In General.--The Secretary of the Interior shall ensure that,
except as otherwise provided for in a water service or repayment
contract, actions taken in compliance with legal obligations imposed
pursuant to or as a result of this Act, including such actions under
section 7 of the Endangered Species Act of 1973 (16 U.S.C. 1531 et
seq.) and other applicable Federal and State laws, shall not directly
or indirectly--
(1) result in the involuntary reduction of water supply or
fiscal impacts to individuals or districts who receive water
from either the State Water Project or the United States under
water rights settlement contracts, exchange contracts, water
service contracts, repayment contracts, or water supply
contracts; or
(2) cause redirected adverse water supply or fiscal impacts
to those within the Sacramento River watershed, the San Joaquin
River watershed or the State Water Project service area.
(b) Costs.--To the extent that costs are incurred solely pursuant
to or as a result of this Act and 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.
(c) Rights and Obligations Not Modified or Amended.--Nothing in
this Act shall modify or amend the rights and obligations of the
parties to any existing--
(1) water service, repayment, settlement, purchase, or
exchange contract with the United States, including the
obligation to satisfy exchange contracts and settlement
contracts prior to the allocation of any other Central Valley
Project water; or
(2) State Water Project water supply or settlement contract
with the State.
SEC. 204. ALLOCATIONS FOR SACRAMENTO VALLEY CONTRACTORS.
(a) Allocations.--
(1) In general.--Subject to paragraph (2) and subsection
(b), the Secretary of the Interior is directed, in the
operation of the Central Valley Project, to allocate water
provided for irrigation purposes to existing Central Valley
Project agricultural water service contractors within the
Sacramento River Watershed in compliance with the following:
(A) Not less than 100 percent of their contract
quantities in a ``Wet'' year.
(B) Not less than 100 percent of their contract
quantities in an ``Above Normal'' year.
(C) Not less than 100 percent of their contract
quantities in a ``Below Normal'' year that is preceded
by an ``Above Normal'' or a ``Wet'' year.
(D) Not less than 50 percent of their contract
quantities in a ``Dry'' year that is preceded by a
``Below Normal,'' an ``Above Normal,'' or a ``Wet''
year.
(E) In all other years not identified herein, the
allocation percentage for existing Central Valley
Project agricultural water service contractors within
the Sacramento River Watershed shall not be less than
twice the allocation percentage to south-of-Delta
Central Valley Project agricultural water service
contractors, up to 100 percent; provided, that nothing
herein shall preclude an allocation to existing Central
Valley Project agricultural water service contractors
within the Sacramento River Watershed that is greater
than twice the allocation percentage to South-of-Delta
Central Valley Project agricultural water service
contractors.
(2) Conditions.--The Secretary's actions under paragraph
(a) shall be subject to--
(A) the priority of individuals or entities with
Sacramento River water rights, including those with
Sacramento River Settlement Contracts, that have
priority to the diversion and use of Sacramento River
water over water rights held by the United States for
operations of the Central Valley Project;
(B) the United States obligation to make a
substitute supply of water available to the San Joaquin
River Exchange Contractors; and
(C) the Secretary's obligation to make water
available to managed wetlands pursuant to section
3406(d) of the Central Valley Project Improvement Act
(Public Law 102-575).
(b) Protection of Municipal and Industrial Supplies.--Nothing in
subsection (a) shall be deemed to--
(1) modify any provision of a water service contract that
addresses municipal and industrial water shortage policies of
the Secretary;
(2) affect or limit the authority of the Secretary to adopt
or modify municipal and industrial water shortage policies;
(3) affect or limit the authority of the Secretary to
implement municipal and industrial water shortage policies; or
(4) affect allocations to Central Valley Project municipal
and industrial contractors pursuant to such policies.
Neither subsection (a) nor the Secretary's implementation of subsection
(a) shall constrain, govern or affect, directly or indirectly, the
operations of the Central Valley Project's American River Division or
any deliveries from that Division, its units or its facilities.
(c) No Effect on Allocations.--This section shall not--
(1) affect the allocation of water to Friant Division
contractors; or
(2) result in the involuntary reduction in contract water
allocations to individuals or entities with contracts to
receive water from the Friant Division.
(d) Program for Water Rescheduling.--The Secretary of the Interior
shall develop and implement a program, not later than 1 year after the
date of the enactment of this Act, to provide for the opportunity for
existing Central Valley Project agricultural water service contractors
within the Sacramento River Watershed to reschedule water, provided for
under their Central Valley Project water service contracts, from one
year to the next.
(e) Definitions.--In this section:
(1) The term ``existing Central Valley Project agricultural
water service contractors within the Sacramento River
Watershed'' means water service contractors within the Shasta,
Trinity, and Sacramento River Divisions of the Central Valley
Project, that have a water service contract in effect, on the
date of the enactment of this section, that provides water for
irrigation.
(2) The year type terms used in subsection (a) have the
meaning given those year types in the Sacramento Valley Water
Year Type (40-30-30) Index.
TITLE III--MISCELLANEOUS PROVISIONS
SEC. 301. EFFECT ON EXISTING OBLIGATIONS.
Nothing in this Act preempts or modifies any existing obligation of
the United States under Federal reclamation law to operate the Central
Valley Project in conformity with State law, including established
water rights priorities.
SEC. 302. TERMINATION OF AUTHORITIES.
This Act shall expire on September 30, 2016, or the date on which
the Governor of the State suspends the state of drought emergency
declaration, whichever is later.
Passed the House of Representatives December 9, 2014.
Attest:
KAREN L. HAAS,
Clerk.