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112th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 112-403
======================================================================
SACRAMENTO-SAN JOAQUIN VALLEY WATER
RELIABILITY ACT
_______
February 27, 2012.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.R. 1837]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 1837) to address certain water-related concerns
on the San Joaquin River, and for other purposes, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Sacramento-San Joaquin Valley Water
Reliability Act''.
SEC. 2. TABLE OF CONTENTS.
Sec. 1. Short title.
Sec. 2. Table of contents.
TITLE I--CENTRAL VALLEY PROJECT WATER RELIABILITY
Sec. 101. Amendment to purposes.
Sec. 102. Amendment to definition.
Sec. 103. Contracts.
Sec. 104. Water transfers, improved water management, and conservation.
Sec. 105. Fish, wildlife, and habitat restoration.
Sec. 106. Restoration fund.
Sec. 107. Additional authorities.
Sec. 108. Bay-Delta Accord.
Sec. 109. Natural and artificially spawned species.
Sec. 110. Authorized service area.
Sec. 111. Regulatory streamlining.
TITLE II--SAN JOAQUIN RIVER RESTORATION
Sec. 201. Repeal of the San Joaquin River settlement.
Sec. 202. Purpose.
Sec. 203. Definitions.
Sec. 204. Implementation of restoration.
Sec. 205. Disposal of property; title to facilities.
Sec. 206. Compliance with applicable law.
Sec. 207. Compliance with Central Valley Project Improvement Act.
Sec. 208. No private right of action.
Sec. 209. Implementation.
Sec. 210. Repayment contracts and acceleration of repayment of
construction costs.
Sec. 211. Repeal.
Sec. 212. Water supply mitigation.
Sec. 213. Additional Authorities.
TITLE III--REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF
CONSTRUCTION COSTS
Sec. 301. Repayment contracts and acceleration of repayment of
construction costs.
TITLE IV--BAY-DELTA WATERSHED WATER RIGHTS PRESERVATION AND PROTECTION
Sec. 401. Water rights and area-of-origin protections.
Sec. 402. Sacramento River settlement contracts.
Sec. 403. Sacramento River Watershed Water Service Contractors.
Sec. 404. No redirected adverse impacts.
TITLE V--MISCELLANOUS
Sec. 501. Precedent.
TITLE I--CENTRAL VALLEY PROJECT WATER RELIABILITY
SEC. 101. AMENDMENT TO PURPOSES.
Section 3402 of the Central Valley Project Improvement Act (106 Stat.
4706) is amended--
(1) in subsection (f), by striking the period at the end; and
(2) by adding at the end the following:
``(g) to ensure that water dedicated to fish and wildlife purposes by
this title is replaced and provided to Central Valley Project water
contractors by December 31, 2016, at the lowest cost reasonably
achievable; and
``(h) to facilitate and expedite water transfers in accordance with
this Act.''.
SEC. 102. AMENDMENT TO DEFINITION.
Section 3403 of the Central Valley Project Improvement Act (106 Stat.
4707) is amended--
(1) by amending subsection (a) to read as follows:
``(a) the term `anadromous fish' means those native stocks of salmon
(including steelhead) and sturgeon that, as of October 30, 1992, were
present in the Sacramento and San Joaquin Rivers and their tributaries
and ascend those rivers and their tributaries to reproduce after
maturing in San Francisco Bay or the Pacific Ocean;'';
(2) in subsection (l), by striking ``and,''
(3) in subsection (m), by striking the period and inserting
``; and'', and
(4) by adding at the end the following:
``(n) the term `reasonable flows' means water flows capable of being
maintained taking into account competing consumptive uses of water and
economic, environmental, and social factors.''.
SEC. 103. CONTRACTS.
Section 3404 of the Central Valley Project Improvement Act (106 Stat.
4708) is amended--
(1) in the heading, by striking ``limitation on contracting
and contracts reform'' and inserting ``contracts''; and
(2) by striking the language of the section and by adding:
``(a) Renewal of Existing Long-Term Contracts.--Upon request of the
contractor, the Secretary shall renew any existing long-term repayment
or water service contract that provides for the delivery of water from
the Central Valley Project for a period of 40 years, and renew such
contracts for successive periods of 40 years each.
``(b) Delivery Charge.--Beginning on the date of the enactment of
this Act, a contract entered into or renewed pursuant to this section
shall include a provision that requires the Secretary to charge the
other party to such contract only for water actually delivered by the
Secretary.''.
SEC. 104. WATER TRANSFERS, IMPROVED WATER MANAGEMENT, AND CONSERVATION.
Section 3405 of the Central Valley Project Improvement Act (106 Stat.
4709) is amended as follows:
(1) In subsection (a)--
(A) by inserting before ``Except as provided herein''
the following: ``The Secretary shall take all necessary
actions to facilitate and expedite transfers of Central
Valley Project water in accordance with this Act or any
other provision of Federal reclamation law and the
National Environmental Policy Act of 1969.'';
(B) in paragraph (1)(A), by striking ``to
combination'' and inserting ``or combination'';
(C) in paragraph (2), by adding at the end the
following:
``(E) The contracting district from which the water
is coming, the agency, or the Secretary shall determine
if a written transfer proposal is complete within 45
days after the date of submission of such proposal. If
such district or agency or the Secretary determines
that such proposal is incomplete, such district or
agency or the Secretary shall state with specificity
what must be added to or revised in order for such
proposal to be complete.
``(F) Except as provided in this section, the
Secretary shall not impose mitigation or other
requirements on a proposed transfer, but the
contracting district from which the water is coming or
the agency shall retain all authority under State law
to approve or condition a proposed transfer.''; and
(D) by adding at the end the following:
``(4) Notwithstanding any other provision of Federal
reclamation law--
``(A) the authority to make transfers or exchanges
of, or banking or recharge arrangements using, Central
Valley Project water that could have been conducted
before October 30, 1992, is valid, and such transfers,
exchanges, or arrangements shall not be subject to,
limited, or conditioned by this title; and
``(B) this title shall not supersede or revoke the
authority to transfer, exchange, bank, or recharge
Central Valley Project water that existed prior to
October 30, 1992.''.
(2) In subsection (b)--
(A) in the heading, by striking ``METERING'' and
inserting ``MEASUREMENT''; and
(B) by inserting after the first sentence the
following: ``The contracting district or agency, not
including contracting districts serving multiple
agencies with separate governing boards, shall ensure
that all contractor-owned water delivery systems within
its boundaries measure surface water at the district or
agency's facilities up to the point the surface water
is commingled with other water supplies.''.
(3) By striking subsection (d).
(4) By redesignating subsections (e) and (f) as subsections
(d) and (e), respectively.
(5) By amending subsection (e)(as redesignated by paragraph
(4))--
(A) by striking ``as a result of the increased
repayment'' and inserting ``that exceed the cost-of-
service'';
(B) by inserting ``the delivery of'' after ``rates
applicable to''; and
(C) by striking ``, and all increased revenues
received by the Secretary as a result of the increased
water prices established under subsection 3405(d) of
this section,''.
SEC. 105. FISH, WILDLIFE, AND HABITAT RESTORATION.
Section 3406 of the Central Valley Project Improvement Act (106 Stat.
4714) is amended as follows:
(1) In subsection (b)--
(A) in paragraph (1)(B)--
(i) by striking ``is authorized and directed
to'' and inserting ``may'';
(ii) by inserting ``reasonable water'' after
``to provide'';
(iii) by striking ``anadromous fish, except
that such'' and inserting ``anadromous fish.
Such'';
(iv) by striking ``Instream flow'' and
inserting ``Reasonable instream flow'';
(v) by inserting ``and the National Marine
Fisheries Service'' after ``United States Fish
and Wildlife Service''; and
(vi) by striking ``California Department of
Fish and Game'' and inserting ``United States
Geological Survey'';
(B) in paragraph (2)--
(i) by striking ``primary purpose'' and
inserting ``purposes'';
(ii) by striking ``but not limited to''
before ``additional obligations''; and
(iii) by adding after the period the
following: ``All Central Valley Project water
used for the purposes specified in this
paragraph shall be credited to the quantity of
Central Valley Project yield dedicated and
managed under this paragraph by determining how
the dedication and management of such water
would affect the delivery capability of the
Central Valley Project during the 1928 to 1934
drought period after fishery, water quality,
and other flow and operational requirements
imposed by terms and conditions existing in
licenses, permits, and other agreements
pertaining to the Central Valley Project under
applicable State or Federal law existing on
October 30, 1992, have been met. To the fullest
extent possible and in accordance with section
3411, Central Valley Project water dedicated
and managed pursuant to this paragraph shall be
reused to fulfill the Secretary's remaining
contractual obligations to provide Central
Valley Project water for agricultural or
municipal and industrial purposes.'';
(C) by amending paragraph (2)(C) to read:
``(C) If by March 15th of any year the quantity of
Central Valley Project water forecasted to be made
available to water service or repayment contractors in
the Delta Division of the Central Valley Project is
below 75 percent of the total quantity of water to be
made available under said contracts, the quantity of
Central Valley Project yield dedicated and managed for
that year under this paragraph shall be reduced by 25
percent.''.
(2) By adding at the end the following:
``(i) Satisfaction of purposes.--By pursuing
the activities described in this section, the
Secretary shall be deemed to have met the
mitigation, protection, restoration, and
enhancement purposes of this title.''.
SEC. 106. RESTORATION FUND.
(a) In General.--Section 3407(a) of the Central Valley Project
Improvement Act (106 Stat. 4726) is amended as follows:
(1) By inserting ``(1) In general.--'' before ``There is
hereby''.
(2) By striking ``Not less than 67 percent'' and all that
follows through ``Monies'' and inserting ``Monies''.
(3) By adding at the end the following:
``(2) Prohibitions.--The Secretary may not directly or indirectly
require a donation or other payment to the Restoration Fund--
``(A) or environmental restoration or mitigation fees not
otherwise provided by law, as a condition to--
``(i) providing for the storage or conveyance of non-
Central Valley Project water pursuant to Federal
reclamation laws; or
``(ii) the delivery of water pursuant to section 215
of the Reclamation Reform Act of 1982 (Public Law 97-
293; 96 Stat. 1270); or
``(B) for any water that is delivered with the sole intent of
groundwater recharge.''.
(b) Certain Payments.--Section 3407(c)(1) of the Central Valley
Project Improvement Act is amended--
(1) by striking ``mitigation and restoration'';
(2) by striking ``provided for or''; and
(3) by striking ``of fish, wildlife'' and all that follows
through the period and inserting ``of carrying out all
activities described in this title.''.
(c) Adjustment and Assessment of Mitigation and Restoration
Payments.--Section 3407(d)(2) of the Central Valley Project Improvement
Act is amended by inserting ``, or after October 1, 2013, $4 per
megawatt-hour for Central Valley Project power sold to power
contractors (October 2013 price levels)'' after ``$12.00 per acre-foot
(October 1992 price levels) for municipal and industrial water sold and
delivered by the Central Valley Project''.
(d) Completion of Actions.--Section 3407(d)(2)(A) of the Central
Valley Project Improvement Act is amended by inserting ``, no later
than December 31, 2020,'' after ``That upon the completion of the fish,
wildlife, and habitat mitigation and restoration actions mandated under
section 3406 of this title,''.
(e) Report; Advisory Board.--Section 3407 of the Central Valley
Project Improvement Act (106 Stat. 4714) is amended by adding at the
end the following:
``(g) Report on Expenditure of Funds.--At the end of each fiscal
year, the Secretary, in consultation with the Restoration Fund Advisory
Board, shall submit to Congress a plan for the expenditure of all of
the funds deposited into the Restoration Fund during the preceding
fiscal year. Such plan shall contain a cost-effectiveness analysis of
each expenditure.
``(h) Advisory Board.--
``(1) Establishment.--There is hereby established the
Restoration Fund Advisory Board (hereinafter in this section
referred to as the `Advisory Board') composed of 12 members
selected by the Secretary, each for four-year terms, one of
whom shall be designated by the Secretary as Chairman. The
members shall be selected so as to represent the various
Central Valley Project stakeholders, four of whom shall be from
CVP agricultural users, three from CVP municipal and industrial
users, three from CVP power contractors, and two at the
discretion of the Secretary. The Secretary and the Secretary of
Commerce may each designate a representative to act as an
observer of the Advisory Board.
``(2) Duties.--The duties of the Advisory Board are as
follows:
``(A) To meet at least semiannually to develop and
make recommendations to the Secretary regarding
priorities and spending levels on projects and programs
carried out pursuant to the Central Valley Project
Improvement Act.
``(B) To ensure that any advice or recommendation
made by the Advisory Board to the Secretary reflect the
independent judgment of the Advisory Board.
``(C) Not later than December 31, 2013, and annually
thereafter, to transmit to the Secretary and Congress
recommendations required under subparagraph (A).
``(D) Not later than December 31, 2013, and
biennially thereafter, to transmit to Congress a report
that details the progress made in achieving the actions
mandated under section 3406 of this title.
``(3) Administration.--With the consent of the appropriate
agency head, the Advisory Board may use the facilities and
services of any Federal agency.''.
SEC. 107. ADDITIONAL AUTHORITIES.
(a) Authority for Certain Activities.--Section 3408(c) of the Central
Valley Project Improvement Act (106 Stat. 4728) is amended to read as
follows:
``(c) Contracts for Additional Storage and Delivery of Water.--
``(1) In general.--The Secretary is authorized to enter into
contracts pursuant to Federal reclamation law and this title
with any Federal agency, California water user or water agency,
State agency, or private organization for the exchange,
impoundment, storage, carriage, and delivery of nonproject
water for domestic, municipal, industrial, fish and wildlife,
and any other beneficial purpose.
``(2) Limitation.--Nothing in this subsection shall be deemed
to supersede the provisions of section 103 of Public Law 99-546
(100 Stat. 3051).
``(3) Authority for certain activities.--The Secretary shall
use the authority granted by this subsection in connection with
requests to exchange, impound, store, carry, or deliver
nonproject water using Central Valley Project facilities for
any beneficial purpose.
``(4) Rates.--The Secretary shall develop rates not to exceed
the amount required to recover the reasonable costs incurred by
the Secretary in connection with a beneficial purpose under
this subsection. Such rates shall be charged to a party using
Central Valley Project facilities for such purpose. Such costs
shall not include any donation or other payment to the
Restoration Fund.
``(5) Construction.--This subsection shall be construed and
implemented to facilitate and encourage the use of Central
Valley Project facilities to exchange, impound, store, carry,
or deliver nonproject water for any beneficial purpose.''.
(b) Reporting Requirements.--Section 3408(f) of the Central Valley
Project Improvement Act (106 Stat. 4729) is amended--
(1) by striking ``Interior and Insular Affairs and the
Committee on Merchant Marine and Fisheries'' and inserting
``Natural Resources'';
(2) in the second sentence, by inserting before the period at
the end the following: ``, including progress on the plan
required by subsection (j)''; and
(3) by adding at the end the following: ``The filing and
adequacy of such report shall be personally certified to the
Committees referenced above by the Regional Director of the
Mid-Pacific Region of the Bureau of Reclamation.''.
(c) Project Yield Increase.--Section 3408(j) of the Central Valley
Project Improvement Act (106 Stat. 4730) is amended as follows:
(1) By redesignating paragraphs (1) through (7) as
subparagraphs (A) through (G), respectively.
(2) By striking ``In order to minimize adverse effects, if
any, upon'' and inserting ``(1) In general.--In order to
minimize adverse effects upon''.
(3) By striking ``needs, the Secretary,'' and all that
follows through ``submit to Congress, a'' and inserting
``needs, the Secretary, on a priority basis and not later than
September 30, 2013, shall submit to Congress a''.
(4) By striking ``increase,'' and all that follows through
``options--'' and inserting ``increase, as soon as possible but
not later than September 30, 2016 (except for the construction
of new facilities which shall not be limited by that deadline),
the water of the Central Valley Project by the amount dedicated
and managed for fish and wildlife purposes under this title and
otherwise required to meet the purposes of the Central Valley
Project including satisfying contractual obligations. The plan
required by this subsection shall include recommendations on
appropriate cost-sharing arrangements and authorizing
legislation or other measures needed to implement the intent,
purposes, and provisions of this subsection and a description
of how the Secretary intends to use the following options--''.
(5) In subparagraph (A), by inserting ``and construction of
new water storage facilities'' before the semicolon.
(6) In subparagraph (F), by striking ``and'' at the end.
(7) In subparagraph (G), by striking the period and all that
follows through the end of the subsection and inserting ``;
and''.
(8) By inserting after subparagraph (G) the following:
``(H) Water banking and recharge.''.
(9) By adding at the end the following:
``(2) Implementation of plan.--The Secretary shall implement
the plan required by paragraph (1) commencing on October 1,
2013. In order to carry out this subsection, the Secretary
shall coordinate with the State of California in implementing
measures for the long-term resolution of problems in the San
Francisco Bay/Sacramento-San Joaquin Delta Estuary.
``(3) Failure of the plan.--Notwithstanding any other
provision of Federal reclamation law, if by September 30, 2016,
the plan required by paragraph (1) fails to increase the annual
delivery capability of the Central Valley Project by 800,000
acre-feet, implementation of any non-mandatory action under
section 3406(b)(2) shall be suspended until the plan achieves
an increase in the annual delivery capability of the Central
Valley Project by 800,000 acre-feet.''.
(d) Technical Correction.--Section 3408(h) of the Central Valley
Project Improvement Act (106 Stat. 4729) is amended--
(1) in paragraph (1), by striking ``paragraph (h)(2)'' and
inserting ``paragraph (2)''; and
(2) in paragraph (2), by striking ``paragraph (h)(i)'' and
inserting ``paragraph (1)''.
(e) Water Storage Project Construction.--The Secretary, acting
through the Commissioner of the Bureau of Reclamation, may partner on
the water storage projects identified in section 103(d)(1) of the Water
Supply Reliability, and Environmental Improvement Act (Public Law 108-
361)(and Acts supplemental and amendatory to the Act) with local joint
powers authorities formed pursuant to State law by irrigation districts
and other local water districts and local governments within the
applicable hydrologic region, to advance these projects. No Federal
funds are authorized for this purpose and each water storage project is
authorized for construction if non-Federal funds are used for financing
and constructing the project.
SEC. 108. BAY-DELTA ACCORD.
(a) Congressional Direction Regarding Central Valley Project and
California State Water Project Operations.--The Central Valley Project
and the State Water Project shall be operated pursuant to the water
quality standards and operational constraints described in the
``Principles for Agreement on the Bay-Delta Standards Between the State
of California and the Federal Government'' dated December 15, 1994, and
such operations shall proceed without regard to the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.) or any other law pertaining to the
operation of the Central Valley Project and the California State Water
Project. Implementation of this section shall be in strict conformance
with the ``Principles for Agreement on the Bay-Delta Standards Between
the State of California and the Federal Government'' dated December 15,
1994.
(b) Application of Laws to Others.--Neither a Federal department nor
the State of California, including any agency or board of the State of
California, shall impose on any valid water right obtained pursuant to
State law, including a pre-1914 appropriative right, any condition that
restricts the exercise of that water right in order to conserve,
enhance, recover or otherwise protect any species that is affected by
operations of the Central Valley Project or California State Water
Project. Nor shall the State of California, including any agency or
board of the State of California, restrict the exercise of any valid
water right obtained pursuant to State law, including a pre-1914
appropriative right, in order to protect, enhance, or restore under the
Public Trust Doctrine any public trust value. Implementation of the
``Principles for Agreement on the Bay-Delta Standards Between the State
of California and the Federal Government'' dated December 15, 1994,
shall be in strict compliance with the water rights priority system and
statutory protections for areas of origin.
(c) Costs.--No cost associated with the implementation of this
section shall be imposed directly or indirectly on any Central Valley
Project contractor, or any other person or entity, unless such costs
are incurred on a voluntary basis.
(d) Native Species Protection.--California law is preempted with
respect to any restriction on the quantity or size of nonnative fish
taken or harvested that preys upon one or more native fish species that
occupy the Sacramento and San Joaquin Rivers and their tributaries or
the Sacramento-San Joaquin Rivers Delta.
SEC. 109. NATURAL AND ARTIFICIALLY SPAWNED SPECIES.
After the date of the enactment of this title, and regardless of the
date of listing, the Secretaries of the Interior and Commerce shall not
distinguish between natural-spawned and hatchery-spawned or otherwise
artificially propagated strains of a species in making any
determination under the Endangered Species Act of 1973 (16 U.S.C. 1531
et seq.) that relates to any anadromous fish species present in the
Sacramento and San Joaquin Rivers or their tributaries and ascend those
rivers and their tributaries to reproduce after maturing in San
Francisco Bay or the Pacific Ocean.
SEC. 110. AUTHORIZED SERVICE AREA.
The authorized service area of the Central Valley Project shall
include the area within the boundaries of the Kettleman City Community
Services District, California, as those boundaries exist on the date of
the enactment of this title. Notwithstanding the provisions of the Act
of October 30, 1992 (Public Law 102-575, 106 Stat. 4600 et seq.), upon
enactment of this title, the Secretary is authorized and directed to
enter into a long-term contract in accordance with the reclamation laws
with the Kettleman City Community Services District, California, for
the delivery of up to 900 acre-feet of Central Valley Project water for
municipal and industrial use. The Secretary may temporarily reduce
deliveries of the quantity of water made available pursuant to up to 25
percent of such total whenever reductions due to hydrologic
circumstances are imposed upon agricultural deliveries of Central
Valley Project water. If any additional infrastructure or related-costs
are needed to implement this section, such costs shall be the
responsibility of the non-Federal entity.
SEC. 111. REGULATORY STREAMLINING.
(a) Applicability of Certain Laws.--Filing of a Notice of
Determination or a Notice of Exemption for any project, including the
issuance of a permit under State law, related to any project of the CVP
or the delivery of water therefrom in accordance with the California
Environmental Quality Act shall be deemed to meet the requirements of
section 102(2)(C) of the National Environmental Protection Act of 1969
(42 U.S.C. 4332(2)(C)) for that project or permit.
(b) Continuation of Project.--The Bureau of Reclamation shall not be
required to cease or modify any major Federal action or other activity
related to any project of the CVP or the delivery of water there from
pending completion of judicial review of any determination made under
the National Environmental Protection Act of 1969 (42 U.S.C.
4332(2)(C)).
(c) Project Defined.--For the purposes of this section:
(1) Cvp.--The term ``CVP'' means the Central Valley Project.
(2) Project.--The term ``project''--
(A) means an activity that--
(i) is undertaken by a public agency, funded
by a public agency, or that requires an
issuance of a permit by a public agency;
(ii) has a potential to result in physical
change to the environment; and
(iii) may be subject to several discretionary
approvals by governmental agencies;
(B) may include construction activities, clearing or
grading of land, improvements to existing structures,
and activities or equipment involving the issuance of a
permit; or
(C) as defined under the California Environmental
Quality Act in section 21065 of the California Public
Resource Code.
TITLE II--SAN JOAQUIN RIVER RESTORATION
SEC. 201. REPEAL OF THE SAN JOAQUIN RIVER SETTLEMENT.
As of the date of enactment of this title, the Secretary shall cease
any action to implement the Stipulation of Settlement (Natural
Resources Defense Council, et al. v. Kirk Rodgers, et al., Eastern
District of California, No. Civ. S-88-1658 LKK/GGH).
SEC. 202. PURPOSE.
Section 10002 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended by striking ``implementation of the
Settlement'' and inserting ``restoration of the San Joaquin River''.
SEC. 203. DEFINITIONS.
Section 10003 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) by striking paragraph (1) and inserting the following:
``(1) The term `Restoration Flows' means the additional water
released or bypassed from Friant Dam to insure that the target
flow entering Mendota Pool, located approximately 62 river
miles downstream from Friant Dam, does not fall below 50 cubic
feet per second.'';
(2) by striking paragraph (3) and inserting the following:
``(3) The term `Water Year' means March 1 through the last
day of February of the following Calendar Year, both dates
inclusive''; and
(3) by adding at the end the following new paragraph:
``(4) The term `Critical Water Year' means when the total
unimpaired runoff at Friant Dam is less than 400,000 acre-feet,
as forecasted as of March 1 of that water year by the
California Department of Water Resources.''.
SEC. 204. IMPLEMENTATION OF RESTORATION.
Section 10004 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in subsection (a)--
(A) in the matter preceding paragraph (1), by
striking ``authorized and directed'' and all that
follows through ``in the Settlement'' and inserting
``authorized to carry out the following:'';
(B) by striking paragraphs (1), (2), (4), and (5);
(C) in paragraph (3)--
(i) by striking ``(3)'' and inserting
``(1)''; and
(ii) by striking ``paragraph 13 of the
Settlement'' and inserting ``this part''
(D) by adding at the end the following new
paragraphs:
``(2) In each Water Year, commencing in the Water Year
starting on March 1, 2013--
``(A) shall modify Friant Dam operations so as to
release the Restoration Flows for that Water Year,
except in any Critical Water Year;
``(B) shall ensure that the release of Restoration
Flows are maintained at the level prescribed by this
part, but that Restoration Flows do not reach
downstream of Mendota Pool;
``(C) shall release the Restoration Flows in a manner
that improves the fishery in the San Joaquin River
below Friant Dam, but upstream of Gravelly Ford in
existence as of the date of the enactment of this part,
and the associated riparian habitat; and
``(D) may, without limiting the actions required
under paragraphs (A) and (C) and subject to subsections
10004(a)(3) and 10004(l), use the Restoration Flows to
enhance or restore a warm water fishery downstream of
Gravelly Ford to and including Mendota Pool, if the
Secretary determines that it is reasonable, prudent,
and feasible to do so; and
``(3) Not later than 1 year after the date of the enactment
of this section, the Secretary shall develop and implement, in
cooperation with the State of California, a reasonable plan, to
fully recirculate, recapture, reuse, exchange, or transfer all
Restoration Flows and provide such recirculated, recaptured,
reused, exchanged, or transferred flows to those contractors
within the Friant Division, Hidden Unit, and Buchanan Unit of
the Central Valley Project that relinquished the Restoration
Flows so recirculated, recaptured, reused, exchanged, or
transferred. Such a plan shall address any impact on ground
water resources within the service area of the Friant Division,
Hidden Unit, and Buchanan Unit of the Central Valley Project
and mitigation may include ground water banking and recharge
projects. Such a plan shall not impact the water supply or
water rights of any entity outside the Friant Division, Hidden
unit, and Buchanan Unit of the Central Valley Project. Such a
plan shall be subject to applicable provisions of California
water law and the Secretary's use of Central Valley Project
facilities to make Project water (other than water released
from Friant Dam pursuant to this part) and water acquired
through transfers available to existing south-of-Delta Central
Valley Project contractors.'';
(2) in subsection (b)--
(A) in paragraph (1), by striking ``the Settlement''
and inserting ``this part'';
(B) in paragraph (2), by striking ``the Settlement''
and inserting ``this part'';
(3) in subsection (c), by striking ``the Settlement'' and
inserting ``this part'';
(4) by striking subsection (d) and inserting the following:
``(d) Mitigation of Impacts.--Prior to October 1, 2013, the Secretary
shall identify--
``(1) the impacts associated with the release of Restoration
Flows prescribed in this part;
``(2) the measures which shall be implemented to mitigate
impacts on adjacent and downstream water users, landowners and
agencies as a result of Restoration Flows prescribed in this
part; and
``(3) prior to the implementation of decisions or agreements
to construct, improve, operate, or maintain facilities that the
Secretary determines are needed to implement this part, the
Secretary shall implement all mitigations measures identified
in subsection (d)(2) before Restoration Flows are commenced.'';
(5) in subsection (e), by striking ``the Settlement'' and
inserting ``this part'';
(6) in subsection (f), by striking ``the Settlement'' and all
that follows through ``section 10011'' and insert ``this
part'';
(7) in subsection (g)--
(A) by striking ``the Settlement and'' before this
part; and
(B) by striking ``or exchange contract'' and
inserting ``exchange contract, or water rights
settlement or holding contracts'';
(8) in subsection (h)--
(A) by striking ``Interim'' in the header;
(B) in paragraph (1)--
(i) in the matter preceding subparagraph (A),
by striking ``Interim Flows under the
Settlement'' and inserting ``Restoration Flows
under this part'';
(ii) in subparagraph (C)--
(I) in clause (i), by striking
``Interim'' and inserting
``Restoration''; and
(II) in clause (ii), by inserting
``and'' after the semicolon;
(iii) in subparagraph (D), by striking
``and'' at the end; and
(iv) by striking subparagraph (E);
(C) in paragraph (2)--
(i) by striking ``Interim'' and inserting
``Restoration'';
(ii) by striking subparagraph (A); and
(iii) by striking ``(B) exceed'' and
inserting ``exceed'';
(D) in paragraph (3), by striking ``Interim'' and
inserting ``Restoration''; and
(E) by striking paragraph (4) and inserting the
following:
``(4) Claims.--Within 60 days of enactment of this Act the
Secretary shall promulgate a rule establishing a claims process
to address current and future claims including, but not limited
to, ground water seepage, flooding, or levee instability
damages caused as a result of, arising out of, or related to
implementation of subtitle A of title X of Public Law 111-
11.'';
(9) in subsection (i)--
(A) in paragraph (1)--
(i) in the matter preceding subparagraph (A),
by striking ``the Settlement and parts I and
III'' and inserting ``this part'';
(ii) in subparagraph (A), by inserting
``and'' after the semicolon;
(iii) in subparagraph (B)--
(I) by striking ``additional amounts
authorized to be appropriated,
including the'';
(II) by striking ``; and'' and
inserting a period; and
(iv) by striking subparagraph (C); and
(B) by striking paragraph (3); and
(10) by adding at the end the following new subsections:
``(k) No Impacts on Other Interests.--No Central Valley Project or
other water other than San Joaquin River water impounded by or bypassed
from Friant Dam shall be used to implement subsection (a)(2) unless
such use is on a voluntary basis. No cost associated with the
implementation of this section shall be imposed directly or indirectly
on any Central Valley Project contractor, or any other person or
entity, outside the Friant Division, the Hidden Unit, or the Buchanan
Unit, unless such costs are incurred on a voluntary basis. The
implementation of this part shall not result directly or indirectly in
any reduction in water supplies or water reliability on any Central
Valley Project contractor, any State Water Project contractor, or any
other person or entity, outside the Friant Division, the Hidden Unit,
or the Buchanan Unit, unless such reductions or costs are incurred on a
voluntary basis.
``(l) Priority.--All actions taken under this part shall be
subordinate to the Secretary's use of Central Valley Project facilities
to make Project water available to Project contractors, other than
water released from the Friant Dam pursuant to this part.
``(m) In General.--Notwithstanding section 8 of the Reclamation Act
of 1902, except as provided in this part, including Title IV of the
Sacramento and San Joaquin Valleys Water Reliability Act, this part
preempts and supersedes any State law, regulation, or requirement that
imposes more restrictive requirements or regulations on the activities
authorized under this part. Nothing in this part shall alter or modify
the obligations, if any, of the Friant Division, Hidden Unit, and
Buchanan Unit of the Central Valley Project, or other water users on
the San Joaquin River or its tributaries, under orders issued by the
State Water Resources Control Board pursuant to the Porter-Cologne
Water Quality Control Act (California Water Code sections 13000 et
seq.). Any such order shall be consistent with the congressional
authorization for any affected Federal facility as it pertains to the
Central Valley Project.
``(n) Project Implementation.--Projects to implement this title shall
be phased such that each project shall follow the sequencing identified
below and include at least the--
``(1) project purpose and need;
``(2) identification of mitigation measures;
``(3) appropriate environmental review; and
``(4) prior to releasing Restoration Flows under this part,
the Secretary shall--
``(A) complete the implementation of mitigation
measures required; and
``(B) complete implementation of the project.''.
SEC. 205. DISPOSAL OF PROPERTY; TITLE TO FACILITIES.
Section 10005 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in subsection (a), by striking ``the Settlement
authorized by this part'' and inserting ``this part'';
(2) in subsection (b)--
(A) in paragraph (1)--
(i) by striking ``(1) In general.--The
Secretary'' and inserting ``The Secretary'';
and
(ii) by striking ``the Settlement authorized
by this part'' and inserting ``this part''; and
(B) by striking paragraph (2); and
(3) in subsection (c)--
(A) in paragraph (1), by striking ``the Settlement''
and inserting ``this part'';
(B) in paragraph (2)--
(i) by striking ``through the exercise of its
eminent domain authority''; and
(ii) by striking ``the Settlement'' and
inserting ``this part''; and
(C) in paragraph (3), by striking ``section
10009(c)'' and inserting ``section 10009''.
SEC. 206. COMPLIANCE WITH APPLICABLE LAW.
Section 10006 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in subsection (a)--
(A) in paragraph (1), by inserting ``unless otherwise
provided by this part'' before the period at the end;
and
(B) in paragraph (2), by striking ``the Settlement''
and inserting ``this part'';
(2) in subsection (b), by inserting ``, unless otherwise
provided by this part'' before the period at the end;
(3) in subsection (c)--
(A) in paragraph (2), by striking ``section 10004''
and inserting ``this part''; and
(B) in paragraph (3), by striking ``the Settlement''
and inserting ``this part''; and
(4) in subsection (d)--
(A) by inserting ``, including without limitation to
sections 10004(d) and 10004(h)(4) of this part,'' after
``implementing this part''; and
(B) by striking ``for implementation of the
Settlement''.
SEC. 207. COMPLIANCE WITH CENTRAL VALLEY PROJECT IMPROVEMENT ACT.
Section 10007 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in the matter preceding paragraph (1),
(A) by striking ``the Settlement'' and inserting
``enactment of this part''; and
(B) by inserting: ``and the obligations of the
Secretary and all other parties to protect and keep in
good condition any fish that may be planted or exist
below Friant Dam including any obligations under
section 5937 of the California Fish and Game Code and
the public trust doctrine, and those of the Secretary
and all other parties under the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.).'' before ``,
provided''; and
(2) in paragraph (1), by striking ``, as provided in the
Settlement''.
SEC. 208. NO PRIVATE RIGHT OF ACTION.
Section 10008(a) of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) by striking ``not a party to the Settlement'' after
``person or entity'' ; and
(2) by striking ``or the Settlement'' before the period and
inserting ``unless otherwise provided by this part. Any Central
Valley Project long-term water service or repayment contractor
within the Friant Division, Hidden unit, or Buchanan Unit
adversely affected by the Secretary's failure to comply with
section 10004(a)(3) of this part may bring an action against
the Secretary for injunctive relief or damages, or both.''.
SEC. 209. IMPLEMENTATION.
Section 10009 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in the header by striking ``; settlement fund'';
(2) in subsection (a)--
(A) in paragraph (1)--
(i) by striking ``the Settlement'' and
inserting ``this part'';
(ii) by striking ``, estimated to total'' and
all that follows through ``subsection
(b)(1),''; and
(iii) by striking ``, provided; however,''
and all that follows through ``$110,000,000 of
State funds'';
(B) in paragraph (2)--
(i) in subparagraph (A), by striking ``(A) In
general.--The Secretary'' and inserting ``The
Secretary'';
(ii) by striking subparagraph (B); and
(C) in paragraph (3)--
(i) by striking ``Except as provided in the
Settlement, to'' and inserting ``To''; and
(ii) by striking ``this Settlement'' and
inserting ``this part'';
(3) in subsection (b)(1)--
(A) by striking ``In addition'' through ``however,
that the'' and inserting ``The'';
(B) by striking ``such additional appropriations only
in amounts equal to''; and
(C) by striking ``or the Settlement'' before the
period;
(4) in subsection (c)--
(A) in paragraph (1)--
(i) in the matter preceding subparagraph (A),
by striking ``the Settlement'' and inserting
``this part'';
(ii) in subparagraph (C), by striking ``from
the sale of water pursuant to the Settlement,
or''; and
(iii) in subparagraph (D), by striking ``the
Settlement'' and inserting ``this part'';
(B) in paragraph (2), by striking ``the Settlement
and'' before ``this part''; and
(5) by striking subsections (d) through (f).
SEC. 210. REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF
CONSTRUCTION COSTS.
Section 10010 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in subsection (a)--
(A) in paragraph (3)(D), by striking ``the Settlement
and'' after ``this part''; and
(B) in paragraph (4)(C), by striking ``the Settlement
and'' after ``this part'';
(2) in subsection (c), by striking paragraph (3);
(3) in subsection (d)(1), by striking ``the Settlement'' in
both places it appears and inserting ``this part'';
(4) in subsection (e)--
(A) in paragraph (1)--
(i) by striking ``Interim Flows or
Restoration Flows, pursuant to paragraphs 13 or
15 of the Settlement'' and inserting
``Restoration Flows, pursuant to this part'';
(ii) by striking ``Interim Flows or'' before
``Restoration Flows''; and
(iii) by striking ``the Interim Flows or
Restoration Flows or is intended to otherwise
facilitate the Water Management Goal, as
described in the Settlement'' and inserting
``Restoration Flows''; and
(B) in paragraph (2)--
(i) by striking ``except as provided in
paragraph 16(b) of the Settlement'' after
``Friant Division long-term contractor''; and
(ii) by striking ``the Interim Flows or
Restoration Flows or to facilitate the Water
Management Goal'' and inserting ``Restoration
Flows''.
SEC. 211. REPEAL.
Section 10011 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is repealed.
SEC. 212. WATER SUPPLY MITIGATION.
Section 10202(b) of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in paragraph (1), by striking ``the Interim or
Restoration Flows authorized in part I of this subtitle'' and
inserting ``Restoration Flows authorized in this part'';
(2) in paragraph (2), by striking ``the Interim or
Restoration Flows authorized in part I of this subtitle'' and
inserting ``Restoration Flows authorized in this part''; and
(3) in paragraph (3)--
(A) in subparagraph (A), by striking ``meet the
Restoration Goal as described in part I of this
subtitle'' and inserting ``recover Restoration Flows as
described in this part'';
(B) in subparagraph (C)--
(i) by striking ``the Interim or Restoration
Flows authorized in part I of this subtitle''
and inserting ``Restoration Flows authorized in
this part''; and
(ii) by striking ``, and for ensuring
appropriate adjustment in the recovered water
account pursuant to section 10004(a)(5)''.
SEC. 213. ADDITIONAL AUTHORITIES.
Section 10203 of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in subsection (b)--
(A) by striking ``section 10004(a)(4)'' and inserting
``section 10004(a)(3)''; and
(B) by striking ``, provided'' and all that follows
through ``section 10009(f)(2)''; and
(2) by striking subsection (c).
TITLE III--REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF
CONSTRUCTION COSTS
SEC. 301. REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF
CONSTRUCTION COSTS.
(a) Conversion of Contracts.--
(1) Not later than 1 year after enactment, the Secretary of
the Interior, upon request of the contractor, shall convert all
existing long-term Central Valley Project contracts entered
under subsection (e) of section 9 of the Act of August 4, 1939
(53 Stat. 1196), to a contract under subsection (d) of section
9 of said Act (53 Stat. 1195), under mutually agreeable terms
and conditions.
(2) Upon request of the contractor, the Secretary is further
authorized to convert, not later than 1 year after enactment,
any Central Valley Project long-term contract entered under
subsection (c)(2) of section 9 of the Act of August 4, 1939 (53
Stat. 1194), to a contract under subsection (c)(1) of section 9
of said Act, under mutually agreeable terms and conditions.
(3) All contracts entered into pursuant to paragraph (1)
shall--
(A) require the repayment, either in lump sum or by
accelerated prepayment, of the remaining amount of
construction costs identified in the most current
version of the Central Valley Project Schedule of
Irrigation Capital Allocations by Contractor, as
adjusted to reflect payments not reflected in such
schedule, and properly assignable for ultimate return
by the contractor, no later than January 31, 2013, or
if made in approximately equal annual installments, no
later than January 31, 2016; such amount to be
discounted by the Treasury Rate. An estimate of the
remaining amount of construction costs as of January
31, 2013, as adjusted, shall be provided by the
Secretary of the Interior to each contractor no later
than 180 days after enactment;
(B) require that, notwithstanding subsection (c)(2),
construction costs or other capitalized costs incurred
after the effective date of the converted contract or
not reflected in the schedule referenced in
subparagraph (A), and properly assignable to such
contractor, shall be repaid in not more than 5 years
after notification of the allocation if such amount is
a result of a collective annual allocation of capital
costs to the contractors exercising contract
conversions under this subsection of less than
$5,000,000. If such amount is $5,000,000 or greater,
such cost shall be repaid as provided by applicable
reclamation law, provided that the reference to the
amount of $5,000,000 shall not be a precedent in any
other context; and
(C) provide that power revenues will not be available
to aid in repayment of construction costs allocated to
irrigation under the contract.
(4) All contracts entered into pursuant to paragraph (2)
shall--
(A) require the repayment in lump sum of the
remaining amount of construction costs identified in
the most current version of the Central Valley Project
Schedule of Municipal and Industrial Water Rates, as
adjusted to reflect payments not reflected in such
schedule, and properly assignable for ultimate return
by the contractor, no later than January 31, 2016. An
estimate of the remaining amount of construction costs
as of January 31, 2016, as adjusted, shall be provided
by the Secretary of the Interior to each contractor no
later than 180 days after enactment; and
(B) require that, notwithstanding subsection (c)(2),
construction costs or other capitalized costs incurred
after the effective date of the contract or not
reflected in the schedule referenced in subparagraph
(A), and properly assignable to such contractor, shall
be repaid in not more than 5 years after notification
of the allocation if such amount is a result of a
collective annual allocation of capital costs to the
contractors exercising contract conversions under this
subsection of less than $5,000,000. If such amount is
$5,000,000 or greater, such cost shall be repaid as
provided by applicable reclamation law, provided that
the reference to the amount of $5,000,000 shall not be
a precedent in any other context.
(b) Final Adjustment.--The amounts paid pursuant to subsection (a)
shall be subject to adjustment following a final cost allocation by the
Secretary of the Interior upon completion of the construction of the
Central Valley Project. In the event that the final cost allocation
indicates that the costs properly assignable to the contractor are
greater than what has been paid by the contractor, the contractor shall
be obligated to pay the remaining allocated costs. The term of such
additional repayment contract shall be no less than 1 year and no more
than 10 years, however, mutually agreeable provisions regarding the
rate of repayment of such amount may be developed by the parties. In
the event that the final cost allocation indicates that the costs
properly assignable to the contractor are less than what the contractor
has paid, the Secretary of the Interior is authorized and directed to
credit such overpayment as an offset against any outstanding or future
obligation of the contractor.
(c) Applicability of Certain Provisions.--
(1) Notwithstanding any repayment obligation under subsection
(a)(3)(B) or subsection (b), upon a contractor's compliance
with and discharge of the obligation of repayment of the
construction costs as provided in subsection (a)(3)(A), the
ownership and full-cost pricing limitations of any provision of
Federal reclamation law shall not apply to lands in such
district.
(2) Notwithstanding any repayment obligation under paragraph
(3)(B) or paragraph (4)(B) of subsection (a), or subsection
(b), upon a contractor's compliance with and discharge of the
obligation of repayment of the construction costs as provided
in paragraphs (3)(A) and (4)(A) of subsection (a), such
contractor shall continue to pay applicable operation and
maintenance costs and other charges applicable to such
repayment contracts pursuant to the then-current rate-setting
policy and applicable law.
(d) Certain Repayment Obligations Not Altered.--Implementation of the
provisions of this section shall not alter the repayment obligation of
any other long-term water service or repayment contractor receiving
water from the Central Valley Project, or shift any costs that would
otherwise have been properly assignable to any contractors absent this
section, including operations and maintenance costs, construction
costs, or other capitalized costs incurred after the date of enactment
of this Act, to other such contractors.
(e) Statutory Interpretation.--Nothing in this part shall be
construed to affect the right of any long-term contractor to use a
particular type of financing to make the payments required in paragraph
(3)(A) or paragraph (4)(A) of subsection (a).
(f) Definition of Treasury Rate.--For purposes of this section,
``Treasury Rate'' shall be defined as the 20-year Constant Maturity
Treasury rate published by the United States Department of the Treasury
as of October 1, 2012.
TITLE IV--BAY-DELTA WATERSHED WATER RIGHTS PRESERVATION AND PROTECTION
SEC. 401. WATER RIGHTS AND AREA-OF-ORIGIN PROTECTIONS.
Notwithstanding the provisions of this Act, Federal reclamation law,
or the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)--
(1) the Secretary of the Interior (``Secretary'') is
directed, in the operation of the Central Valley Project, to
strictly adhere to State water rights law governing water
rights priorities by honoring water rights senior to those
belonging to the Central Valley Project, regardless of the
source of priority;
(2) the Secretary is directed, in the operation of the
Central Valley Project, to strictly adhere to and honor water
rights and other priorities that are obtained or exist pursuant
to the provisions of California Water Code sections 10505,
10505:5, 11128, 11460, and 11463; and sections 12200 to 12220,
inclusive; and
(3) any action that affects the diversion of water or
involves the release of water from any water storage facility
taken by the Secretary or the Secretary of the Department of
Commerce to conserve, enhance, recover, or otherwise protect
any species listed under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.) shall be applied in a manner that is
consistent with water right priorities established by State
law.
SEC. 402. SACRAMENTO RIVER SETTLEMENT CONTRACTS.
In the implementation of the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.), in the Bay-Delta and on the Sacramento River, the
Secretary and the Secretary of Commerce are directed to apply any
limitations on the operation of the Central Valley Project or to
formulate any ``reasonable prudent alternative'' associated with the
operation of the Central Valley Project in a manner that strictly
adheres to and applies the water rights priorities for ``Project
Water'' and ``Base Supply'' provided for in the Sacramento River
Settlement Contracts. Article 3(i) of the Sacramento River Settlement
Contracts shall not be utilized by the United States as means to
provide shortages to the Sacramento River Settlement Contracts that are
different than those provided for in Article 5(a) of those contracts.
SEC. 403. SACRAMENTO RIVER WATERSHED WATER SERVICE CONTRACTORS.
(a) In General.--Subject to subsection (b) and the absolute priority
of the Sacramento River Settlement Contractors to Sacramento River
supplies over Central Valley Project diversions and deliveries to other
contractors, the Secretary 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:
(1) Not less than 100% of their contract quantities in a
``Wet'' year.
(2) Not less than 100% of their contract quantities in an
``Above Normal'' year.
(3) Not less than 100% of their contract quantities in a
``Below Normal'' year.
(4) Not less than 75% of their contract quantities in a
``Dry'' year.
(5) Not less than 50% of their contract quantities in a
``Critically Dry'' year.
(b) Protection of Municipal and Industrial Supplies.--Nothing in
subsection (a) shall be deemed to (i) modify any provision of a water
service contract that addresses municipal and industrial water shortage
policies of the Secretary, (ii) affect or limit the authority of the
Secretary to adopt or modify municipal and industrial water shortage
policies, (iii) affect or limit the authority of the Secretary to
implement municipal and industrial water shortage policies, or (iv)
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) 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.
SEC. 404. NO REDIRECTED ADVERSE IMPACTS.
The Secretary shall insure that there are no redirected adverse water
supply or fiscal impacts to those within the Sacramento River watershed
or to the State Water Project arising from the Secretary's operation of
the Central Valley Project to meet legal obligations imposed by or
through any State or Federal agency, including, but not limited to
those legal obligations emanating from the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) or this Act, or actions or activities
implemented to meet the twin goals of improving water supply or
addressing environmental needs of the Bay Delta.
TITLE V--MISCELLANOUS
SEC. 501. PRECEDENT.
Congress finds and declares that--
(1) coordinated operations between the Central Valley Project
and the State Water Project, previously requested and consented
to by the State of California and the Federal Government,
require assertion of Federal supremacy to protect existing
water rights throughout the system; and
(2) these circumstances are unique to California.
Therefore, nothing in this Act shall serve as precedent in any other
State.
Purpose of the Bill
The purpose of H.R. 1837, as ordered reported, is to
address certain water-related concerns on the San Joaquin
River.
Background and Need for Legislation
H.R. 1837, the Sacramento-San Joaquin Valley Water
Reliability Act, eliminates future man-made droughts in
California caused by a number of federal laws and regulations
and past Congressional inaction. As amended, the bill not only
provides water supply certainty and water rights protections to
those in the Sacramento and San Joaquin Valleys of California,
but will also preserve and create thousands of jobs at no
taxpayer expense, expedite revenue to the U.S. Treasury, and
decrease reliance on foreign food sources.
California's water supply system was once legendary,
transforming desert into some of the most productive farmland
in the world and fueling rapid growth in the southern part of
the State. Now, however, the system has been compromised due to
environmental lawsuits, age and lack of new facilities. The
current California water storage and delivery system is
designed to serve 22 million people, yet the State has 37
million residents and the population is expected to nearly
double by 2050. This legislation seeks to help remedy that
situation by restoring water supply balance.
California has experienced drought twelve times since 1850
according to hydrologic records. These drought periods and the
need to provide water to a rapidly growing population and farms
led to an innovative and complex water storage and delivery
system designed by the federal and state governments. The
Central Valley Project (CVP) is a federal multi-purpose system
of reservoirs and canals that collects and delivers waters from
northern California and the Sierra Nevada mountains. In normal
water years, the CVP can deliver a total of seven million acre
feet (one acre foot is about 326,000 gallons, or enough water
for two families for a year) of water. Most water is used to
irrigate over three million acres of farmland while about 15
percent of the water is used to serve over two million urban
and industrial customers. The State Water Project (SWP) serves
similar purposes, providing supplemental water to approximately
25 million Californians and about 750,000 acres of irrigated
farmland. The CVP and SWP, which are operated as one integrated
unit under the terms of Public Law 99-546, have helped create a
massive agricultural economy that supplies the nation with the
majority of our vegetables, fruits and nuts.
Water from both the CVP and SWP delivered to southern
portions of the State is conveyed through the Sacramento/San
Joaquin Bay-Delta through two massive pump systems near Tracy,
California. Since northern California contains over two-thirds
of the water resources and southern California has two-thirds
of the human population and needs irrigation water, these two
projects deliver water to over 27 million humans south of the
Delta pumps and around the San Francisco Bay area. The westside
of the San Joaquin Valley, which is south of the pumps, is a
prime recipient of water delivered from the CVP pumps.
While infrastructure is not being built on an adequate
scale to account for population growth and other factors,
environmental regulations continue to restrict water supplies
for human needs. In 1992, Congress passed the Central Valley
Project Improvement Act (CVPIA, Public Law 102-575) to include
the ``protection, restoration, and mitigation of fish and
wildlife'' as a new purpose for the CVP. This purpose was given
equal priority with agricultural water supply and other
original uses. The controversial CVPIA was enacted while
California was experiencing the effects of a long-term drought.
One of the most contentious aspects of the CVPIA was the
dedication of 800,000 acre-feet/year of CVP water for fish and
wildlife purposes. This provision reallocated water that had
been delivered to farmers and cities. However, many have
questioned whether the flows have had any positive impact on
fish and wildlife flows compared to other factors, such as
ocean conditions and predation. In addition, many have accused
the Department of the Interior (DOI) of allocating more than
800,000 acre feet due to vague language in the statute. H.R.
1837 resolves this situation by setting a ceiling of 800,000
acre feet. With this and other water sources, H.R. 1837 would
still allow for over 1 million acre feet to be dedicated for
fish and wildlife purposes.
The CVPIA also created the CVP Restoration Fund to help pay
for the vast majority of the actions taken to implement this
law. Over $800 million in water and power ratepayer revenues
have been collected for this purpose and deposited into the
Fund since 1992. Many water and power customers have cited a
lack of transparency over funding expenditures and have
questioned their impact on fish and wildlife. H.R. 1837
requires more transparency and creates an Advisory Board for
program expenditures.
The CVPIA and the Endangered Species Act (ESA) have
contributed significantly to water supply uncertainty and
instability. Environmental organizations blaming the water
pumps as the main cause of endangered Delta smelt declines
successfully used the federal court system to achieve many of
their objectives. In May 2007, a Federal District Court judge
ruled in Natural Resources Defense Council vs. Kempthorne that
DOI's Biological Opinion on Delta smelt was ``arbitrary,
capricious and contrary to law.'' This eventually led to a
revised Biological Opinion that caused massive water shut-offs
in 2009 and 2010. Under that Biological Opinion, increased
amounts of water were re-allocated towards Delta smelt during
the time farm communities in the west side of the San Joaquin
Valley needed it most. A Biological Opinion on salmon and orcas
led to additional water restrictions. There is disagreement
about the causes of the salmon fisheries declines in California
rivers, but a 2010 report by the National Marine Fisheries
Service determined that poor ocean conditions were by far the
most important factor causing this decline.
The results of the water restrictions were devastating.
Over one million acre feet of water were lost due to the smelt
and salmon Biological Opinions. Although jobs estimates differ,
thousands of jobs were lost and hundreds of thousands of acres
of land were fallowed in 2010. The City of Mendota experienced
an unemployment rate of 40 percent as a result of such
restrictions. Since 1992--with the enactment of the CVPIA and
in light of ESA restrictions--west side San Joaquin Valley
irrigators have gone from receiving an average of 92 percent of
their water supply to a current annual average of 35 to 40
percent. On February 22, 2012, after this bill was ordered
favorably reported from the Committee, the Obama Administration
announced that the farmers in the San Joaquin Valley initially
would only receive 30 percent of their allocated water for
2012.
Even though California experienced substantial
precipitation and snowpack (165 percent of normal) in 2011,
some irrigation districts south of the Delta only received 80
percent of their water allocation. The Bureau of Reclamation
(Reclamation), the federal agency operating the CVP, maintains
that this allocation would be normal for this type of above
average water year, but farmers who receive the water counter
that in a year like last year, their allocation should have
been at 90 percent at a minimum. The farmers' assertion is
correct in light of recent history. In 2006, a water year that
was much like the 2011 water year, the farmers received a 65
percent allocation in February, but by April they were at 85
percent and in May went to a 100 percent allocation. In 2005, a
year that was actually drier than the current water year, these
farmers received an initial allocation of 65 percent in
February and ultimately went up to an 85 percent allocation.
There is only one difference between 2011 and then: in 2005 and
2006, the operations of the CVP were not constrained by
Biological Opinions issued in December 2008 and May 2009 by the
U.S. Fish and Wildlife Service (smelt) and the National Marine
Fisheries Service (salmon), respectively.
H.R. 1837 attempts to reverse the impacts of the ESA
lawsuits by declaring that the CVP and SWP are compliant with
the ESA if the projects are implemented in a manner consistent
with the 1994 ``Principles for Agreement on Bay-Delta Standards
between the State of California and the Federal Government,''
better known as the ``Bay-Delta Accord.'' This document serves
as a landmark and universally praised agreement to improve
water quality in the Delta and increase water reliability for
users. The Bay-Delta Accord included the following elements:
provisions to regulate springtime flow and export limits to
benefit fish species; operational flexibility to comply with
ESA provisions that address water supply and species monitoring
issues among others; and measures to improve environmental
conditions in the Bay-Delta Estuary.
H.R. 1837 codifies the standards set forth in the Bay-Delta
Accord to return balance and certainty to Sacramento-San
Joaquin flows. The bill also preempts California's ESA
standards to ensure that the environmental community does not
sue and to keep the State regulatory community from seizing
water from the SWP and others to impose more strict limits if
they cannot get water from the federal CVP. This preemption is
necessary given that the SWP and CVP are intertwined legally
and functionally (pursuant to Public Law 99-546). This already
existing preemption is the only such circumstance in the
western United States, so the preemption in H.R. 1837 is
limited solely to this situation. The Committee voted on a
bipartisan basis to recognize this unique situation and to
state that H.R. 1837 should not serve as precedent for any
other State because no similar circumstance exists.
The second title of the bill revolves around reforming the
San Joaquin River Restoration Program, as authorized in Public
Law 111-11. For decades, controversy has surrounded
construction of the Friant Dam, which diverts San Joaquin River
flows to provide much of the water for the Friant Division of
the CVP. The Friant Division provides irrigation and municipal
water to farms and communities along the southern San Joaquin
Valley's east side.
In 1987, the Friant water users started to negotiate the
renewal of their water contracts with the federal government.
In December 1988, the Natural Resources Defense Council (NRDC)
and a coalition of conservation and fishing groups filed
Natural Resources Defense Council, et al. vs. Kirk Rodgers, et
al. to challenge the contract renewals. Subsequent amendments
to the lawsuit alleged that Reclamation violated California
Fish and Game Code Section 5937, the National Environmental
Protection Act (NEPA), and the ESA. Section 5937 of Public Law
111-11 requires dam owners to ``allow sufficient water to pass
over, around or through the dam, to keep in good condition any
fish that may be planted or exist below the dam.'' In August
2004 and July 2005, a federal District Court judge ruled in
NRDC's favor, finding that Reclamation violated Section 5937.
A new series of settlement negotiations began, with
negotiating parties agreeing on a final settlement on June 30,
2006. After three years of heated disputes regarding the merits
of the settlement, the 111th Congress codified the settlement
agreement and directed Reclamation to carry out certain
activities in the settlement: (1) restoring the dry part of the
San Joaquin River through a series of interim and permanent
flows that divert, on average, more than 200,000 acre feet per
year from farms to fish; (2) re-introducing an ``experimental''
population of Chinook salmon into the river; and (3) mitigating
water user impacts associated with river restoration and salmon
re-introduction. At the time of enactment of this settlement,
the Congressional Budget Office estimated that the law and
settlement agreement would increase net direct spending by $190
million over the 2009-2018 period and $200 million over the
2019-2040 period. In addition, implementation would increase
discretionary spending by $271 million over the 2009-2018
period. Most water users estimate that the program will cost
around $1.2 billion over twenty years. Title II of H.R. 1837
substantially reforms this program and eliminates all
authorized federal appropriation amounts while still allowing
flows for a warm water fishery.
The third title of the bill creates a mechanism for CVP
water users to convert their water service contracts to capital
repayment contracts. Under a CVP water service contract, a
water user pays for only the water allocated and delivered,
whereas a capital repayment contract is for the cost of the
water and the appropriate facility (capital) being used to
store and convey the water. When the CVP water user enters a
capital repayment contract in H.R. 1837, the water user has the
ability to pay off that contract early to the federal
government. That early payment increases short-term revenue to
the U.S. Treasury, but also releases the water user from
acreage and pricing limitations imposed under the Reclamation
Reform Act of 1982 (Public Law 97-293). This will allow farmers
to put more acreage in production when they have water supplied
under the bill. This provision is nearly identical to
prepayment provisions in the San Joaquin River Settlement Act
(Public Law 111-11).
The bill, as amended at Committee, now includes a fourth
title. This title is intended to ensure that other titles of
the legislation will not have unintended consequences on other
water rights holders and to protect private property rights
established under California law. These provisions will give
northern California's water rights holders unprecedented
protections at the federal level.
The Committee also added a fifth title to the bill during
markup. This title includes a provision describing the unique
situation of the CVP and SWP coordination and existing
preemption while stating that nothing in the Act shall serve as
a precedent in another State.
Committee Action
H.R. 1837 was introduced on May 11, 2011, by Congressman
Devin Nunes (R-CA). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water and Power. On June 2, 2011 and June 13, 2011, the
Subcommittee held hearings on the bill. On February 16, 2012,
the Full Natural Resources Committee met to consider the bill.
The Subcommittee on Water and Power was discharged by unanimous
consent. Congressman Tom McClintock (R-CA) offered an amendment
in the nature of a substitute to the bill. Congresswoman Grace
Napolitano (D-CA) offered amendment designated .014 to the
amendment in the nature of a substitute; the amendment was not
adopted by a bipartisan roll call vote of 17 to 27, as follows:
Congressman Scott Tipton (R-CO) offered amendment
designated .004 to the amendment in the nature of a substitute;
the amendment was adopted by a bipartisan roll call vote of 31
to 13, as follows:
Congresswoman Grace Napolitano (D-CA) offered amendment
designated .003 to the amendment in the nature of a substitute;
the amendment was not adopted by a bipartisan roll call vote of
17 to 27, as follows:
Congressman Jim Costa (D-CA) offered amendment designated
.008 to the amendment in the nature of a substitute; the
amendment was withdrawn. Congressman John Garamendi (D-CA)
offered amendment designated .002 to the amendment in the
nature of a substitute; the amendment was not adopted by voice
vote. Congressman Garamendi offered amendment designated .077
to the amendment in the nature of a substitute; the amendment
was not adopted by voice vote. Congressman Garamendi offered
amendment designated .079 to the amendment in the nature of a
substitute; the amendment was not adopted by voice vote.
Congressman Garamendi offered amendment designated .082 to the
amendment in the nature of a substitute; the amendment was not
adopted by a bipartisan roll call vote of 17 to 27, as follows:
Congressman Garamendi offered amendment designated .083 to
the amendment in the nature of a substitute. Congressman Jeff
Denham (R-CA) offered a substitute amendment to the Garamendi
amendment designated .083; the Denham amendment was adopted by
a bipartisan roll call vote of 27 to 17, as follows:
The amendment offered by Congressman Garamendi designated
.083, as amended by the Denham substitute amendment, was
adopted by voice vote. Congressman Garamendi offered amendment
designated .084 to the amendment in the nature of a substitute;
the amendment was not adopted by a bipartisan roll call vote of
17 to 27, as follows:
Congressman Garamendi offered amendment designated .085 to
the amendment in the nature of a substitute; the amendment was
not adopted by voice vote. Congressman Garamendi offered
amendment designated .086 to the amendment in the nature of a
substitute; the amendment was not adopted by a bipartisan roll
call of 17 to 27, as follows:
The McClintock amendment in the nature of a substitute, as
amended, was adopted by voice vote. The bill, as amended, was
then adopted and ordered favorably reported to the House of
Representatives by a bipartisan roll call vote of 27 to 17, as
follows:
Section-by-Section Analysis
Section 1. Short title
This section, as amended, cites the bill as the
``Sacramento-San Joaquin Valley Water Reliability Act.''
Section 2. Table of contents
TITLE I--CENTRAL VALLEY PROJECT WATER RELIABILITY
Section 101. Amendment to purposes
This section amends Section 3402 of the Central Valley
Project Improvement Act (CVPIA, Public Law 102-575) by adding
two new purposes to the CVPIA. These new purposes include the
replacement of water dedicated to fish and wildlife purposes by
the year 2016 at a reasonably low cost and to facilitate and
expedite water transfers. The intent of this section is to
reaffirm that 800,000 acre feet of water re-allocated annually
from farms to fish and wildlife will be replaced for those
farmers and that water transfers between willing sellers within
the Central Valley of California are purposes to help meet
water demand during drought.
Section 102. Amendment to definition
This section amends Section 3403 of the CVPIA to prioritize
restoration on native fish species (salmon, steelhead and
sturgeon) in the Sacramento and San Joaquin Rivers as of
October 30, 1992, by removing non-native American shad and
striped bass from the definition of ``anadromous fish.'' It
further adds the definition of ``reasonable flows'' to provide
the Secretary of the Interior (Secretary) guidance when making
decisions on ``reasonable'' levels of environmental flows.
Section 103. Contracts
This section amends Section 3404 of the CVPIA to allow for
40-year renewal of existing Central Valley Project (CVP) long-
term water user contracts with the Bureau of Reclamation
(Reclamation) and retains the existing CVPIA provision
requiring that contracts shall include a provision to charge
such water users only for water actually delivered. The current
contractual term is 25 years, under the CVPIA. The intent of
Section 103 is to return the contractual duration back to the
40-year term allowed for in similar water user contracts with
Reclamation throughout the western United States.
Section 104. Water transfers, improved water management, and
conservation
This section generally seeks to streamline the process for
willing seller-based water transfers while giving water users
in the originating water basin the rights to approve and modify
such transfers. The section amends Section 3405(a) of the CVPIA
to add that the water district of origin or the Secretary shall
determine whether a transfer proposal is complete within 45
days of submission and, in addition, shall specify what must be
added or revised to complete the transfer proposal. The
provision further delineates that the Secretary shall not
impose mitigation or other requirements on a proposed transfer,
but the water district of origin shall retain authority to
approve or condition a proposed transfer as provided under
state law.
This section also amends Section 3405(a) of CVPIA to
clarify that transfers, exchanges and water banking
arrangements among CVP water users which could have been
conducted prior to the enactment of the CVPIA may still take
place and are not subject to the CVPIA, which imposed a super-
structure of regulations on existing and future water
transfers.
This section also amends Section 3405(b) of the CVPIA to
clarify the obligation to measure surface water deliveries by
deleting the word ``metering'' and replacing it with
``measurement.'' This change is intended to require all CVP
water users to ensure that all water delivery systems are
equipped with devices or methods to measure the monthly volume
of surface water delivered within its boundaries and specifies
the area of surface water that must be measured.
This section deletes Section 3405(d) of the CVPIA, which
required ``tiered pricing'' provisions in CVP water service
contracts. This deletion is intended to provide incentives for
water users to buy and conserve transferred water and bank such
water in groundwater basins to help overcome drought and
provide water for wildlife uses.
Section 105. Fish, wildlife, and habitat restoration
This section amends Section 3406(b)(1)(B) of the CVPIA to
provide reasonable flows to restore anadromous fish production
in the Central Valley. This section also amends Section
3406(b)(2) of the CVPIA to affirm that the management of
800,000 acre-feet of CVP water for fish, wildlife and habitat
purposes is a ceiling, rather than a floor, on the amount of
water re-allocated from water users. The section reauthorizes
and directs reuse or diversion of any part of the 800,000 acre-
feet to agriculture or municipal and industrial purposes after
it has fulfilled its fish and wildlife purposes. It further
authorizes that, if by March 15th of any year, the water
allocation for the Delta Division of the CVP is below 75
percent, then the 800,000 acre-feet mandate is reduced by 25
percent. The section adds new Section 3406(i) to the CVPIA to
clarify that by pursuing the specific mitigation projects,
programs and activities authorized by this section, the
Secretary shall be deemed to have met the mitigation,
protection, restoration and enhancement purposes established in
CVPIA.
Section 106. Restoration Fund
This section generally changes the CVP Restoration Fund
(Fund), which was created as an environmental mitigation fund
financed by water and power users under the CVPIA. This section
deletes references to specific Fund activities that have
already been accomplished or outdated. This section also adds a
new provision to Section 3407(a)(2) to the CVPIA to prohibit
the Secretary from requiring donations to the Fund as a
condition to contracting for storage or conveyance of non-CVP
water pursuant to Reclamation laws. It also prohibits Fund
charges on any water that is delivered with the sole intent of
groundwater recharge. The section also amends Section
3407(c)(1) of the CVPIA to make certain technical and
conforming amendments to provide for assessment and collections
into the Fund.
This section also amends Section 3407(d)(2)(A) of the CVPIA
by setting a Fund fee cap of $4 per megawatt-hour for CVP power
sold to power users beginning on October 1, 2013. The intent of
this provision is to provide cost certainty to power users that
have experienced fluctuations in Fund charges. Such cost
certainties already exist for water users. The amendment also
reduces the amount of overall annual CVP Restoration Funds from
$50 million to $35 million a year beginning after December 31,
2020.
This section adds Section 3407(g) to the CVPIA to direct
the Secretary, in consultation with the Restoration Fund
Advisory Board created in Section 3407(h), to submit to
Congress a report outlining the proposed expenditure of the
Restoration Funds deposited in the preceding year and
describing why that plan provides optimum benefits.
This section also adds Section 3407(h) to the CVPIA to
create a Restoration Fund Advisory Board composed of twelve
members selected by the Secretary. The board members serve
four-year terms and consist of four CVP agricultural users,
three CVP municipal and industrial users, three CVP power
contractors, and two at the discretion of the Secretary. The
Secretaries of the Interior and Commerce may also each
designate a representative to act as an observer. The duties of
the Advisory Board are to make recommendations, annually, to
the Secretary regarding priorities and spending levels on
projects and programs carried out pursuant to the CVPIA and to
report to Congress biennially on the progress made to achieve
the goals for the Fund as identified in Section 3406 of the
CVPIA.
Section 107. Additional authorities
This section amends Section 3408(c) of the CVPIA by
striking ``non-profit,'' thereby expanding the authority of the
Secretary to enter into conveyance, storage and similar
contracts with all private entities; directs the Secretary to
use authority granted in this subsection to exchange, impound,
store, carry or deliver non-project water using CVP facilities;
and stipulates that nothing in the section shall supersede the
provisions of Section 103 of Public Law 99-546, commonly
referred to as the Coordinated Operations Agreement between the
federal government and the State of California.
This section also amends Section 3408(f) of the CVPIA by
striking out ``Interior and Insular Affairs and Merchant Marine
and Fisheries'' and inserting in lieu thereof ``Natural
Resources,'' requires the reporting of progress on the plan
required by subsection (j) (project yield increase), and
requires the Mid-Pacific Regional Director of the Bureau of
Reclamation to certify required annual reports.
This section also amends Section 3408(j) of the CVPIA by
requiring the Secretary to develop and implement a plan to
replace the 800,000 acre-feet of water dedicated to fish and
wildlife by establishing a plan to increase (by no later than
2016) the yield of the CVP. The section also requires that the
plan include recommendations on appropriate cost-sharing and
requires that the dedication of the 800,000 acre-feet for fish,
wildlife and habitat purposes be suspended until the plan
achieves an increase in the annual delivery capability of the
CVP by 800,000 acre-feet.
This section, as amended, also authorizes the Secretary to
partner with local joint powers authorities to advance surface
water storage project studies authorized in Public Law 108-361.
The section makes it specific that federal funding is not
authorized for such partnerships and is intended to utilize
non-federal funding, expertise and efficiencies to advance such
studies. However, nothing in the provision is intended to
prohibit such ongoing studies from moving forward with or
without the partnerships. The section also authorizes each
water storage project for construction if non-federal funds are
used for financing and constructing each project. This
provision is intended to facilitate construction of each
project in a manner like how Reclamation's water recycling and
rural water projects are authorized for construction.
Section 108. Bay-Delta Accord
This section intends to restore operational flexibility for
California's two major water projects and restore water to
farmers while protecting senior water rights holders and other
northern California water users from any potential, unintended
impacts. The section directs the CVP and the State Water
Project (SWP) to be operated in a manner consistent with the
``Principles for Agreement on the Bay-Delta Standards Between
the State of California and the Federal Government'' (known as
the Bay-Delta Accord of 1994). This language codifies the Bay-
Delta Accord's flows as it relates to the CVP and prevents the
State of California from imposing further flow reductions to
ensure the Bay-Delta Accord commitments. This provision is
warranted given the coordinated operations between the CVP and
SWP pursuant to Public Law 99-546, a preemption sought by the
State of California. The Committee believes that this
circumstance is unique and does not serve as a precedent since
there is no such similar situation in any other State. This
section ensures that implementation of the Bay-Delta Accord
shall be in strict compliance with the water rights priority
system and statutory protections for areas of origin.
Subsection (b) further protects property rights established
under state law by prohibiting the federal government or the
State of California from imposing restrictions on pre-1914 and
other water rights holders. Subsection (c) prohibits the State
of California from imposing restrictions on the ``take'' of any
non-native fish that preys on one or more native fish species
in the Sacramento and San Joaquin Rivers and their tributaries
or the Sacramento/San Joaquin Bay Delta.
Section 109. Natural and artificially spawned species
This section specifically directs the Secretaries of the
Interior and Commerce to not distinguish between natural-
spawned and hatchery-spawned species when making any
determinations under the Endangered Species Act (ESA) that
relate to anadromous fish in the Sacramento and San Joaquin
Rivers and their tributaries.
Section 110. Authorized service area
This section adds the Kettleman City Community Services
District as a new authorized service area of the CVP. This
section authorizes the Secretary to enter into a long-term
contract, in accordance with Reclamation laws, for the delivery
of up to 900 acre-feet of CVP water for municipal and
industrial use. The Secretary can reduce deliveries by 25
percent if restrictions are imposed on agricultural deliveries.
As amended, this section ensures that any infrastructure or
other costs related to this section are borne by Kettleman
City.
Section 111. Regulatory streamlining
This section seeks to streamline federal and State of
California environmental permitting regulations. It declares
that a Notice of Determination or a Notice of Exemption
prepared pursuant to the California Environmental Quality Act
(CEQA) for a project or issuance of a permit related to a CVP
water project will satisfy the requirements of the National
Environmental Policy Act (NEPA). The section allows Reclamation
to proceed with activities on a CVP project if there is a
pending legal challenge to the Notice of Determination. The
section defines the project as being part of the CVP and having
the following qualities: an action being undertaken by a public
agency or that requires a issuance of a permit by a public
agency, has potential to result in a physical change of the
environment, and may be subject to discretionary approvals by
government agencies. The definition further includes, but is
not limited to, construction activities, clearing or grading of
land, improvements to existing structures, activities or
equipment involving the issuance of a permit, and proposals and
activities defined as a project by the State of California
under CEQA.
TITLE II--SAN JOAQUIN RIVER RESTORATION
Section 201. Repeal of the San Joaquin River Settlement
This section requires the Secretary to cease any action
related to the implementation of the Stipulation of Settlement
filed in federal court of the Eastern District of California in
Natural Resources Defense Council, et al. v. Kirk Rodgers, et
al., Eastern District of California (No. Civ. S-88-1658 LKK/
GHH).
Section 202. Purpose
This section amends Section 10002 of Public Law 111-11 by
striking the words ``implementation of the Settlement'' and
replacing it with ``restoration of the San Joaquin River.'' By
doing so, this section changes the purpose of the law to end
the Settlement and replace it with a warm water fishery
restoration with the intent of saving water for local farmers
while creating a more viable fishery.
Section 203. Definitions
The section amends Section 10003 of Public Law 111-11 by
striking the terms ``Friant Division long-term contractors'',
``Interim Flows'', ``Restoration Flows'', ``Recovered Water
Account'', ``Restoration Goal'', ``Water Management Goal'', and
``Settlement.''
The section also adds the following definitions to Section
10003 of Public Law 111-11: ``Restoration Flows'' means
additional water released from Friant Dam to ensure a target
flow entering Mendota Pool does not fall below 50 cubic feet
per second; ``Water Year'' means March 1 through the last day
of February of the following Calendar Year; and ``Critical
Water Year'' is defined as when total unimpaired runoff at
Friant Dam is less than 400,000 acre feet.
Section 204. Implementation of restoration
This section amends Section 10004 of Public Law 111-11 by
striking all language that references or directs the
implementation of the ``Settlement'' and directs the Secretary,
beginning in March 2013, to modify Friant Dam operations to
release ``Restoration Flows'' in every year except a ``Critical
Water Year'' in a manner that improves the fishery in the San
Joaquin River between Friant Dam and Gravelly Ford. The section
further authorizes the Secretary to, within one year of
enactment, develop and implement a plan to fully re-circulate,
recapture, reuse, exchange or transfer all ``Restoration
Flows.'' The Secretary is further directed to address any
impact on groundwater resources within the Friant service area
and stipulates that mitigation may include groundwater banking
and recharge projects.
This section also directs the Secretary to: identify the
impacts associated with the release of Restoration Flows
prescribed in Public Law 111-11; identify measures necessary to
mitigate impacts on downstream landowners as a result of
Restoration Flows as prescribed in this title; and fully
implement such measures before Restoration Flows begin. This
section also clarifies that Reclamation must follow a claims
process to reimburse current and future claims from groundwater
seepage, flooding or levee instability damages caused as a
result of Restoration Flows prescribed in Public Law 111-11.
The Committee believes that the agency already has such
authority to provide for such claims; however, this provision
is intended to ensure that the agency follows this process.
This section declares that, notwithstanding Section 8 of
the Reclamation Act of 1902 and Title IV of H.R. 1837, the
title preempts and supersedes any State law, regulation or
requirement that imposes more restrictive requirements or
regulations on the activities under this title. This provision
is intended to preempt the State of California's Fish and Game
Code Section 5937, which was used as the legal basis to sue the
federal government and water users receiving water from the
Friant Division on the San Joaquin River. Section 5937 states:
``The owner of any dam shall allow sufficient water at all
times to pass through a fishway, or in the absence of a
fishway, allow sufficient water to pass over, around or through
the dam, to keep in good condition any fish that may be planted
or exist below the dam.'' This provision further declares that
the Friant Division, Hidden Unit, and Buchanan Unit of the CVP
shall comply with orders issued by the State Water Resources
Control Board pursuant to the Porter-Cologne Water Quality
Control Act provided that such orders are consistent with the
Congressional authorization for any affected federal
facilities.
The section further directs the Secretary to phase-in each
project to implement this title in the following order:
identify project purpose and need, identify mitigation
measures, conduct environmental review, and complete project.
Section 205. Disposal of property; title to facilities
This section amends Section 10005 of Public Law 111-11 by
striking all language that references or directs the
implementation of the ``Settlement'' and strikes the federal
authorization to use eminent domain.
Section 206. Compliance with applicable law
This section amends Section 10006 of Public Law 111-11 by
striking all language that references or directs the
implementation of the ``Settlement.''
Section 207. Compliance with Central Valley Project Improvement Act
This section amends Section 10007 of Public Law 111-11 by
striking all language that references or directs the
implementation of the ``Settlement.'' This section also
declares that implementation under this title satisfies federal
obligations under Section 5937 of the California Fish and Game
Code.
Section 208. No private right of action
This section amends Section 10008 of Public Law 111-11 by
striking all language that references or directs the
implementation of the ``Settlement.'' The section also affirms
that nothing shall confer on anyone a private right of action
or claim for relief to interpret or enforce the provisions of
Section 10004(a)(3) (except for contractors within Friant
Division, Hidden Unit, or Buchanan Unit).
Section 209. Implementation
This section amends Section 10009 of Public Law 111-11 by
striking all language that references or directs the
implementation of the ``Settlement''. The section also strikes
$250 million in authorized federal funding, descriptive
language concerning levels of funding, limitations on
contributions, and the Reach 4B study.
Section 210. Repayment contracts and acceleration of repayment of
construction costs
This section amends Section 10010 of Public Law 111-11 by
striking the word ``Settlement,'' the word ``Interim Flows,''
the word ``Water Management Goal,'' and references to the
``Settlement.''
Section 211. Repeal
This section repeals Section 10011 (Salmon Restoration
Program) of Public Law 111-11.
Section 212. Water supply mitigation
This section amends Section 10202 of Public Law 111-11 by
striking all language that references or directs the
implementation of the ``Settlement.''
Section 213. Additional authorities
This section amends Section 10203 of Public Law 111-11 by
striking all language that references or directs the
implementation of the ``Settlement'' and striking $50 million
in authorized federal funding.
TITLE III--REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF
CONSTRUCTION COSTS
Section 301. Repayment contracts and acceleration of repayment of
construction costs
This section allows CVP water users to pre-pay their share
of the capital construction costs of the CVP. The provision is
based on nearly identical authorizing language in the San
Joaquin River Restoration program (Public Law 111-11). The
section specifically directs the Secretary, upon the request of
a water contractor, to convert a long-term CVP contract entered
into under subsection 9(e) of the Reclamation Project Act of
1939 into contracts under subsection 9(d) of the same law. It
also authorizes the Secretary, upon the request of the
contractor, to convert a long-term CVP contract entered into
under subsection 9(c)(2) of the Reclamation Project Act of 1939
into a contract under subsection 9(c)(1) of the same law. A
contractor who chooses to convert shall be required to, either
in lump sum or accelerated prepayment, pay the remaining
balance of construction at a Treasury rate discount. In return
for pre-paying such contractual obligations to the federal
government, pricing and acreage limitations of federal
reclamation law shall no longer apply to the water contractors.
The section stipulates that any capital costs that have been
incurred after the date of conversion will be repaid either
within five years of being incurred or later, depending on the
amount.
TITLE IV--BAY-DELTA WATERSHED WATER RIGHTS PRESERVATION AND PROTECTION
Section 401. Water rights and area-of-origin protections
This section directs the Secretary, in the operation of the
CVP, to strictly adhere to state water rights laws and
priorities and to honor water rights senior to those held by
the CVP. This section further directs the Secretary to strictly
adhere to and honor water rights and priorities that were
obtained or existed pursuant to various sections of California
Water Code and ensures that the federal ESA is implemented in a
manner that honors the priorities delineated in this section.
Section 402. Sacramento River Settlement Contracts
This section directs the Secretary to apply any ESA
limitations (as they relate to the operation of the CVP) in a
manner that strictly adheres to and applies the water rights
priorities for ``Project Water'' and ``Base Supply'' provided
for in the Sacramento River Settlement Contracts. It also
ensures that Article 3(i) of the Sacramento River Settlement
Contracts shall not be utilized as a means to provide water
shortages that are different than those provided for in Article
5(a)16 of those contracts. This section is intended to fulfill
the contractual commitments the federal government made with
the Sacramento River Settlement Contractors, who have water
rights pre-dating the creation of the CVP.
Section 403. Sacramento River watershed water service contractors
This section directs the Secretary to provide certain
amounts of water to Sacramento Valley water service contractors
who receive water from the CVP. Subject to the absolute
priority of Sacramento River Settlement Contractors, subsection
(a) directs the Secretary to allocate water provided for
irrigation purposes to existing CVP agricultural water service
contractors within the Sacramento River Watershed in the
following order: not less than 100 percent of their contract
quantities in a ``Wet,'' ``Above Normal,'' and ``Below Normal''
water year; not less than 75 percent of their contract
quantities in a ``Dry'' water year; and, not less than 50
percent of their contract quantities in a ``Critically Dry''
water year. The water years follow the Sacramento Valley Water
Year Type (40-30-30) Index.
Subsection (b) ensures that nothing in subsection (a)
modifies any provision of a water service contract that
addresses municipal and industrial water shortage policies of
the Secretary, affects or limits the authority of the Secretary
to adopt or modify municipal and industrial water shortage
policies, affects or limits the authority of the Secretary to
implement municipal and industrial water shortage policies, or
affects allocations to CVP 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
CVP's American River Division or any deliveries from that
Division, its units or its facilities. The section defines
``existing Central Valley Project agricultural water service
contractors within the Sacramento River Watershed'' as
contractors within the Shasta, Trinity, and Sacramento River
Divisions of the CVP who have a water service contract in
effect on the date of enactment of this Act.
Section 404. No redirected adverse impacts
This section directs the Secretary to ensure there are no
redirected adverse water supply or fiscal impacts to those
within the Sacramento River watershed, or to the SWP, arising
from the Secretary's operation of the CVP to meet legal
obligations imposed by state or federal agencies or actions
implemented to meet the twin goals of improving water supply
and environmental needs of the Bay-Delta.
TITLE V--MISCELLANEOUS
Section 501. Precedent
In this section, Congress finds and declares that
coordinated operations between the CVP and the SWP, based on
the State of California's request and consented to by the
federal government, requires assertion of federal supremacy to
protect existing water rights throughout the system and that
these circumstances are unique to California. As a result, the
section declares that nothing in this Act shall serve as
precedent in any other State.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
received the following cost estimate for this bill from the
Director of the Congressional Budget Office:
H.R. 1837--Sacramento-San Joaquin Valley Water Reliability Act
Summary: H.R. 1837 would amend the Central Valley Project
Improvement Act (CVPIA) and the San Joaquin River Restoration
Settlement Act to change water management plans and
environmental restoration goals for the Central Valley region
in central California.
Based on information from the Bureau of Reclamation and
local water districts in California, CBO and staff of the Joint
Committee on Taxation (JCT) estimate that enacting the bill
would increase offsetting receipts (a credit against direct
spending) by $254 million and decrease revenues by $33 million
over the 2013-2022 period. Together, those changes would reduce
future budget deficits by $221 million over the next 10 years,
CBO estimates. Because the legislation would affect direct
spending and revenues, pay-as-you-go procedures apply.
In addition, CBO estimates that implementing the
legislation would reduce discretionary spending for restoration
activities associated with the San Joaquin River by $190
million over the 2013-2017 period, assuming appropriation
actions consistent with the authorization levels in the bill.
H.R. 1837 would impose intergovernmental mandates as
defined in the Unfunded Mandates Reform Act (UMRA) by
preempting state laws and requiring or prohibiting some
activities related to water management and wildlife
preservation. Based on information from state and local
agencies, CBO estimates that the cost for the state of
California to comply with those mandates would not exceed the
annual thresholds established in UMRA ($73 million in 2012,
adjusted annually for inflation). The legislation contains no
private-sector mandates.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 1837 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------------------------------------------------------------
2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2013-2017 2013-2022
--------------------------------------------------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Title II--San Joaquin River Restoration:
Estimated Authorization Level.............. 0 -50 -50 -50 -50 -50 -50 0 0 0 -200 -300
Estimated Outlays.......................... 0 -40 -50 -50 -50 -50 -50 -10 0 0 -190 -300
CHANGES IN DIRECT SPENDING
Title III--Early Repayment of Capital Debt:
Estimated Budget Authority................. -232 -24 -24 -24 10 10 10 10 10 10 -294 -244
Estimated Outlays.......................... -232 -24 -24 -24 10 10 10 10 10 10 -294 -244
Title I--Central Valley Project Reliability
Act:
Estimated Budget Authority................. -1 -1 -1 -1 -1 -1 -1 -1 -1 -1 -5 -10
Estimated Outlays.......................... -1 -1 -1 -1 -1 -1 -1 -1 -1 -1 -5 -10
Total Changes:
Estimated Budget Authority............. -233 -25 -25 -25 9 9 9 9 9 9 -299 -254
Estimated Outlays...................... -233 -25 -25 -25 9 9 9 9 9 9 -299 -254
CHANGES IN REVENUES
Estimated Revenuesa............................ * -2 -3 -3 -4 -4 -4 -4 -4 -4 -13 -33
NET INCREASE OR DECREASE (-) IN THE DEFICIT FROM CHANGES IN DIRECT SPENDING AND REVENUES
Change in Deficit.............................. -233 -23 -22 -22 13 13 13 13 13 13 -286 -221
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes: Components may not sum to totals because of rounding; * = revenue loss of less than $500,000.
aFor revenues, negative numbers indicate an increase in the deficit. Estimate prepared by staff of the Joint Committee on Taxation.
Basis of estimate: For this estimate, CBO assumes that H.R.
1837 will be enacted in fiscal year 2012. The bill would
deauthorize $300 million originally authorized to be
appropriated for implementation of the San Joaquin River
Restoration Settlement Act.
CBO estimates that enacting the bill would increase
offsetting receipts (a credit against direct spending) by $254
million over the 2013-2022 period. Additionally, staff of the
Joint Committee on Taxation estimates that the legislation
would lead to a decrease in revenues of $33 million over the
2013-2022 period. Together, those changes in direct spending
and revenues would reduce future budget deficits by $221
million, CBO estimates.
Spending subject to appropriation
Title II would require the bureau to cease all planning and
construction activities necessary to implement the San Joaquin
River Restoration Settlement Act (title X of Public Law 111-
11). That act requires the bureau to restore about 153 miles of
the San Joaquin River by improving channels and structures for
the purpose of improving water flow and fish habitat and
passage. Title II would replace those objectives with a
different restoration program that would require the bureau to
restore about 65 miles of the river and ensure certain minimum
river flows. The bill also would deauthorize the salmon
restoration program authorized in the San Joaquin River
Restoration Settlement Act. Finally, the bill would deauthorize
$300 million originally authorized to be appropriated for
restoration activities in the San Joaquin River Restoration
Settlement Act. CBO expects that those funds will be provided
in equal increments of $50 million annually beginning in 2014.
Based on that anticipated spending pattern, CBO estimates that
H.R. 1837 would lead to a discretionary savings for San Joaquin
restoration activities of $190 million over the 2013-2017
period and $300 million over the 2013-2022 period, assuming
appropriation actions consistent with the bill.
Direct spending and revenues
Repayment Contracts and Acceleration of Repayment of
Construction Costs. Title III would authorize the bureau to
convert water service contracts in the Central Valley Project
(CVP) to repayment contracts if the contractor requests it.
Under a repayment contract, the CVP customers would be required
to accelerate the repayment of their share of the capital
investment in the project. Water contractors could choose to
pay the present value of their future contract payments
(discounted at the 20-year constant maturity Treasury rate),
either in one lump sum by January 31, 2013, or in equal
installments by January 31, 2016. Based on the participation
rates of water contractors in a similar program recently
offered to contractors in CVP's Friant Division, CBO expects
that a majority of CVP contractors would choose the lump-sum
option. CBO estimates that the government would receive net
accelerated payments from the contractors of $244 million over
the 2013-2022 period. Over the 2022-2030 period, payments of
$420 million would no longer be made under the bill's option to
prepay contracts, CBO estimates.
CBO expects that those accelerated payments to the federal
government would be financed with bonds exempt from federal
taxation, which the staff of the Joint Committee on Taxation
estimates would lead to a revenue loss of $33 million over the
next 10 years.
Central Valley Project Water Reliability. Title I would
amend the Central Valley Project Improvement Act (Public Law
102-575) by changing several management features of the
project. The bill would require the bureau to adhere to a
specified timeline when reviewing requests to transfer water
among Central Valley Project contractors. Under the bill,
certain water transfers would be deemed to have met the
requirements of some environmental laws. CBO expects that those
provisions and other changes in the bill would lead to more
water transfers among contractors than expected under current
law. We estimate that those additional transfers and other
changes would result in additional offsetting receipts of $1
million annually because water use would increase.
Pay-As-You-Go Considerations: The Statutory Pay-As-You-Go
Act of 2010 establishes budget-reporting and enforcement
procedures for legislation affecting direct spending or
revenues. The net changes in outlays and revenues that are
subject to those pay-as-you-go procedures are shown in the
following table.
CBO ESTIMATE OF PAY-AS-YOU-GO EFFECTS FOR H.R. 1837 AS ORDERED REPORTED BY THE HOUSE COMMITTEE ON NATURAL RESOURCES ON FEBRUARY 16, 2012
--------------------------------------------------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-------------------------------------------------------------------------------------------------------------
2012 2013 2014 2015 2016 2017 2018 2019 2020 2021 2022 2012-2017 2012-2022
--------------------------------------------------------------------------------------------------------------------------------------------------------
NET INCREASE OR DECREASE (-) IN THE DEFICIT
Statutory Pay-As-You-Go Impact............ 0 -233 -23 -22 -22 13 13 13 13 13 13 -286 -221
--------------------------------------------------------------------------------------------------------------------------------------------------------
Estimated impact on State, Local, and Tribal Governments:
H.R. 1837 would impose intergovernmental mandates as defined in
UMRA by preempting state laws and requiring or prohibiting some
activities related to water management and wildlife
preservation. The bill would require the state of California to
change how it manages a state system for storing and delivering
water. It also would prohibit the state from restricting
existing water rights in an effort to protect any species
affected by the operations of the water projects in the state.
Similarly, it would prohibit restrictions on water rights that
are designed to protect, enhance, or restore the value of
public water resources. Finally, the bill would preempt several
other state laws related to water management and wildlife
preservation. Based on information from state and local
agencies, CBO estimates that the cost for the state to comply
with those mandates would not exceed the annual thresholds
established in UMRA ($73 million in 2012, adjusted annually for
inflation).
Estimated impact on the private sector: The bill contains
no new private-sector mandates as defined in UMRA.
Estimate prepared by: Federal costs: Aurora Swanson; Impact
on state, local, and tribal governments: Melissa Merrell;
Impact on the private sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, credit authority, or an increase or decrease in tax
expenditures. Based on information from the Bureau of
Reclamation and local water districts in California, CBO and
staff of the Joint Committee on Taxation (JCT) estimate that
enacting the bill would increase offsetting receipts (a credit
against direct spending) by $254 million and decrease revenues
by $33 million over the 2013-2022 period. Together, those
changes would reduce future budget deficits by $221 million
over the next 10 years, CBO estimates. Because the legislation
would affect direct spending and revenues, pay-as-you-go
procedures apply.
In addition, CBO estimates that implementing the
legislation would reduce discretionary spending for restoration
activities associated with the San Joaquin River by $190
million over the 2013-2017 period, assuming appropriation
actions consistent with the authorization levels in the bill.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill, as ordered reported, is to address
certain water-related concerns on the San Joaquin River.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates as defined under
Public Law 104-4.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any local or tribal
law. The bill preempts and supersedes certain California water
and environmental laws, regulations or requirements that impose
more restrictive requirements or regulations on the activities
under the bill.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
CENTRAL VALLEY PROJECT IMPROVEMENT ACT
TITLE XXXIV--CENTRAL VALLEY PROJECT IMPROVEMENT ACT
* * * * * * *
SEC. 3402. PURPOSES.
The purposes of this title shall be--
(a) * * *
* * * * * * *
(f) to achieve a reasonable balance among competing
demands for use of Central Valley Project water,
including the requirements of fish and wildlife,
agricultural, municipal and industrial and power
contractors[.]
(g) to ensure that water dedicated to fish and
wildlife purposes by this title is replaced and
provided to Central Valley Project water contractors by
December 31, 2016, at the lowest cost reasonably
achievable; and
(h) to facilitate and expedite water transfers in
accordance with this Act.
SEC. 3403. DEFINITIONS.
As used in this title--
[(a) the term ``anadromous fish'' means those stocks
of salmon (including steelhead), striped bass,
sturgeon, and American shad that ascend the Sacramento
and San Joaquin rivers and their tributaries and the
Sacramento-San Joaquin Delta to reproduce after
maturing in San Francisco Bay or the Pacific Ocean;]
(a) the term ``anadromous fish'' means those native
stocks of salmon (including steelhead) and sturgeon
that, as of October 30, 1992, were present in the
Sacramento and San Joaquin Rivers and their tributaries
and ascend those rivers and their tributaries to
reproduce after maturing in San Francisco Bay or the
Pacific Ocean;
* * * * * * *
(l) the terms ``Restoration Fund'' and ``Fund'' mean
the Central Valley Project Restoration Fund established
by this title; [and,]
(m) the term ``Secretary'' means the Secretary of the
Interior[.]; and
(n) the term ``reasonable flows'' means water flows
capable of being maintained taking into account
competing consumptive uses of water and economic,
environmental, and social factors.
SEC. 3404. LIMITATION ON CONTRACTING AND CONTRACT REFORM.
[(a) New Contracts.--Except as provided in subsection (b) of
this section, the Secretary shall not enter into any new short-
term, temporary, or long-term contracts or agreements for water
supply from the Central Valley Project for any purpose other
than fish and wildlife before:
[(1) the provisions of subsections 3406(b)-(d) of
this title are met;
[(2) the California State Water Resources Control
Board concludes the review ordered by the California
Court of Appeals in United States v. State Water
Resources Control Board, 182 Cal. App. 3d 82 (1986) and
determines the means of implementing its decision,
including the obligations of the Central Valley
Project, if any, and the Administrator of the
Environmental Protection Agency shall have approved
such decision pursuant to existing authorities; and,
[(3) at least one hundred and twenty days shall have
passed after the Secretary provides a report to the
Committee on Energy and Natural Resources of the Senate
and the Committee on Interior and Insular Affairs and
the Committee on Merchant Marine and Fisheries of the
House of Representatives explaining the obligations, if
any, of the Central Valley Project system, including
its component facilities and contracts, with regard to
achieving its responsibilities for the San Francisco
Bay/Sacramento-San Joaquin Delta Estuary as finally
established and approved by relevant State and Federal
authorities, and the impact of such obligations on
Central Valley Project operations, supplies, and
commitments.
[(b) Exceptions to Limit on New Contracts.--The prohibition
on execution of new contracts under subsection (a) of this
section shall not apply to contracts executed pursuant to
section 305 of Public Law 102-250 or section 206 of Public Law
101-514 or to one-year contracts for delivery of surplus flood
flows or contracts not to exceed two years in length for
delivery of class II water in the Friant Unit. Notwithstanding
the prohibition in the Energy and Water Development
Appropriations Act of 1990, the Secretary is authorized,
pursuant to section 203 of the Flood Control Act of 1962, to
enter into a long-term contract in accordance with the
Reclamation laws with the Tuolumne Regional Water District,
California, for the delivery of water from the New Melones
project to the county's water distribution system and a
contract with the Secretary of Veteran Affairs to provide for
the delivery in perpetuity of water from the project in
quantities sufficient, but not to exceed 850 acre-feet per
year, to meet the needs of the San Joaquin Valley National
Cemetery, California.
[(c) Renewal of Existing Long-Term Contracts.--
Notwithstanding the provisions of the Act of July 2, 1956 (70
Stat. 483), the Secretary shall, upon request, renew any
existing long-term repayment or water service contract for the
delivery of water from the Central Valley Project for a period
of twenty-five years and may renew such contracts for
successive periods of up to 25 years each.
[(1) No such renewals shall be authorized until
appropriate environmental review, including the
preparation of the environmental impact statement
required in section 3409 of this title, has been
completed. Contracts which expire prior to the
completion of the environmental impact statement
required by section 3409 may be renewed for an interim
period not to exceed three years in length, and for
successive interim periods of not more than two years
in length, until the environmental impact statement
required by section 3409 has been finally completed, at
which time such interim renewal contracts shall be
eligible for long-term renewal as provided above. Such
interim renewal contracts shall be modified to comply
with existing law, including provisions of this title.
With respect to all contracts renewed by the Secretary
since January 1, 1988, the Secretary shall incorporate
in said contracts a provision requiring payment of the
charge mandated in subsection 3406(c) and subsection
3407(b) of this title and all other modifications
needed to comply with existing law, including
provisions of this title. This title shall be deemed
``applicable law'' as that term is used in Article
14(c) of contracts renewed by the Secretary since
January 1, 1988.
[(2) Upon renewal of any long-term repayment or water
service contract providing for the delivery of water
from the Central Valley Project, the Secretary shall
incorporate all requirements imposed by existing law,
including provisions of this title, within such renewed
contracts. The Secretary shall also administer all
existing, new, and renewed contracts in conformance
with the requirements and goals of this title.
[(3) In order to encourage early renewal of project
water contracts and facilitate timely implementation of
this title, the Secretary shall impose on existing
contractors an additional mitigation and restoration
payment of one and one-half times the annual mitigation
and restoration payment calculated under subsection
3407(d) of this title for every year starting October
1, 1997 or January 1 of the year following the year in
which the environmental impact statement required under
section 3409 is completed, whichever is sooner, and
ending on the effective date of the renewed contract
payable prior to the renewal of such contract, to be
covered to the Restoration Fund: Provided, however,
That this paragraph shall not apply to contracts
renewed after January 1, 1988, and prior to the date of
enactment of this title or, in the event the
environmental impact statement required by section 3409
is not completed by October 1, 1997, to any holder of a
contract in existence on the date of enactment of this
title who enters into a binding agreement with the
Secretary prior to October 1, 1997, to renew its
contract immediately upon completion of that
environmental impact statement, if such contract has
not expired prior to such date.]
(a) Renewal of Existing Long-Term Contracts.--Upon request of
the contractor, the Secretary shall renew any existing long-
term repayment or water service contract that provides for the
delivery of water from the Central Valley Project for a period
of 40 years, and renew such contracts for successive periods of
40 years each.
(b) Delivery Charge.--Beginning on the date of the enactment
of this Act, a contract entered into or renewed pursuant to
this section shall include a provision that requires the
Secretary to charge the other party to such contract only for
water actually delivered by the Secretary.
SEC. 3405. WATER TRANSFERS, IMPROVED WATER MANAGEMENT AND CONSERVATION.
(a) Water Transfers.--In order to assist California urban
areas, agricultural water users, and others in meeting their
future water needs, subject to the conditions and requirements
of this subsection, all individuals or districts who receive
Central Valley Project water under water service or repayment
contracts, water rights settlement contracts or exchange
contracts entered into prior to or after the date of enactment
of this title are authorized to transfer all or a portion of
the water subject to such contract to any other California
water user or water agency, State or Federal agency, Indian
tribe, or private nonprofit organization for project purposes
or any purpose recognized as beneficial under applicable State
law. The Secretary shall take all necessary actions to
facilitate and expedite transfers of Central Valley Project
water in accordance with this Act or any other provision of
Federal reclamation law and the National Environmental Policy
Act of 1969. Except as provided herein, the terms of such
transfers shall be set by mutual agreement between the
transferee and the transferor.
(1) Conditions for transfers.--All transfers to
Central Valley Project water authorized by this
subsection shall be subject to review and approval by
the Secretary under the conditions specified in this
subsection. Transfers involving more than 20 percent of
the Central Valley Project water subject to long-term
contract within any contracting district or agency
shall also be subject to review and approval by such
district or agency under the conditions specified in
this subsection:
(A) No transfer [to combination] or
combination of transfers authorized by this
subsection shall exceed, in any year, the
average annual quantity of water under contract
actually delivered to the contracting district
or agency during the last three years of normal
water delivery prior to the date of enactment
of this title.
* * * * * * *
(2) Review and approval of transfers.--All transfers
subject to review and approval under this subsection
shall be reviewed and approved in a manner consistent
with the following:
(A) * * *
* * * * * * *
(E) The contracting district from which the
water is coming, the agency, or the Secretary
shall determine if a written transfer proposal
is complete within 45 days after the date of
submission of such proposal. If such district
or agency or the Secretary determines that such
proposal is incomplete, such district or agency
or the Secretary shall state with specificity
what must be added to or revised in order for
such proposal to be complete.
(F) Except as provided in this section, the
Secretary shall not impose mitigation or other
requirements on a proposed transfer, but the
contracting district from which the water is
coming or the agency shall retain all authority
under State law to approve or condition a
proposed transfer.
* * * * * * *
(4) Notwithstanding any other provision of Federal
reclamation law--
(A) the authority to make transfers or
exchanges of, or banking or recharge
arrangements using, Central Valley Project
water that could have been conducted before
October 30, 1992, is valid, and such transfers,
exchanges, or arrangements shall not be subject
to, limited, or conditioned by this title; and
(B) this title shall not supersede or revoke
the authority to transfer, exchange, bank, or
recharge Central Valley Project water that
existed prior to October 30, 1992.
(b) [Metering] Measurement of Water Use Required.--All
Central Valley Project water service or repayment contracts for
agricultural, municipal, or industrial purposes that are
entered into, renewed, or amended under any provision of
Federal Reclamation law after the date of enactment of this
title, shall provide that the contracting district or agency
shall ensure that all surface water delivery systems within its
boundaries are equipped with water measuring devices or water
measuring methods of comparable effectiveness acceptable to the
Secretary within five years of the date of contract execution,
amendment, or renewal, and that any new surface water delivery
systems installed within its boundaries on or after the date of
contract renewal are so equipped. The contracting district or
agency, not including contracting districts serving multiple
agencies with separate governing boards, shall ensure that all
contractor-owned water delivery systems within its boundaries
measure surface water at the district or agency's facilities up
to the point the surface water is commingled with other water
supplies. The contracting district or agency shall inform the
Secretary and the State of California annually as to the
monthly volume of surface water delivered within its
boundaries.
* * * * * * *
[(d) Water Pricing Reform.--All Central Valley Project water
service or repayment contracts for a term longer than three
years for agricultural, municipal, or industrial purposes that
are entered into, renewed, or amended under any provision of
Federal Reclamation law after the date of enactment of this
title shall provide that all project water subject to contract
shall be made available to districts, agencies, and other
contracting entities pursuant to a system of tiered water
pricing. Such a system shall specify rates for each district,
agency or entity based on an inverted block rate structure with
the following provisions:
[(1) the first rate tier shall apply to a quantity of
water up to 80 percent of the contract total and shall
not be less than the applicable contract rate;
[(2) the second rate tier shall apply to that
quantity of water over 80 percent and under 90 percent
of the contract total and shall be at a level halfway
between the rates established under paragraphs (1) and
(3) of this subsection;
[(3) the third rate tier shall apply to that quantity
of water over 90 percent of the contract total and
shall not be less than the full cost rate; and
[(4) the Secretary shall charge contractors only for
water actually delivered.
The Secretary shall waive application of this subsection as it
relates to any project water delivered to produce a crop which
the Secretary determines will provide significant and
quantifiable habitat values for waterfowl in fields where the
water is used and the crops are produced: Provided, That such
waiver shall apply only if such habitat values can be assured
consistent with the purposes of this title through binding
agreements executed with or approved by the Secretary.]
[(e)] (d) Water Conservation Standards.--The Secretary shall
establish and administer an office of Central Valley Project
water conservation best management practices that shall, in
consultation with the Secretary of Agriculture, the California
Department of Water Resources, California academic
institutions, and Central Valley Project water users, develop
criteria for evaluating the adequacy of all water conservation
plans developed by project contractors, including those plans
required by section 210 of the Reclamation Reform Act of 1982.
(1) * * *
* * * * * * *
[(f)] (e) Increased Revenues.--All revenues received by the
Secretary [as a result of the increased repayment] that exceed
the cost-of-service rates applicable to the delivery of water
transferred from irrigation use to municipal and industrial use
under subsection 3405(a) of this section[, and all increased
revenues received by the Secretary as a result of the increased
water prices established under subsection 3405(d) of this
section,] shall be covered to the Restoration Fund.
SEC. 3406. FISH, WILDLIFE AND HABITAT RESTORATION.
(a) * * *
(b) Fish and Wildlife Restoration Activities.--The Secretary,
immediately upon the enactment of this title, shall operate the
Central Valley Project to meet all obligations under State and
Federal law, including but not limited to the Federal
Endangered Species Act, 16 U.S.C. 1531, et seq., and all
decisions of the California State Water Resources Control Board
establishing conditions on applicable licenses and permits for
the project. The Secretary, in consultation with other State
and Federal agencies, Indian tribes, and affected interests, is
further authorized and directed to:
(1) develop within three years of enactment and
implement a program which makes all reasonable efforts
to ensure that, by the year 2002, natural production of
anadromous fish in Central Valley rivers and streams
will be sustainable, on a long-term basis, at levels
not less than twice the average levels attained during
the period of 1967-1991; Provided, That this goal shall
not apply to the San Joaquin River between Friant Dam
and the Mendota Pool, for which a separate program is
authorized under subsection 3406(c) of this title;
Provided further, That the programs and activities
authorized by this section shall, when fully
implemented, be deemed to meet the mitigation,
protection, restoration, and enhancement purposes
established by subsection 3406(a) of this title; And
provided further, That in the course of developing and
implementing this program the Secretary shall make all
reasonable efforts consistent with the requirements of
this section to address other identified adverse
environmental impacts of the Central Valley Project not
specifically enumerated in this section.
(A) * * *
(B) As needed to achieve the goals of this
program, the Secretary [is authorized and
directed to] may modify Central Valley Project
operations to provide reasonable water flows of
suitable quality, quantity, and timing to
protect all life stages of [anadromous fish,
except that such] anadromous fish. Such flows
shall be provided from the quantity of water
dedicated to fish, wildlife, and habitat
restoration purposes under paragraph (2) of
this subsection; from the water supplies
acquired pursuant to paragraph (3) of this
subsection; and from other sources which do not
conflict with fulfillment of the Secretary's
remaining contractual obligations to provide
Central Valley Project water for other
authorized purposes. [Instream flow] Reasonable
instream flow needs for all Central Valley
Project controlled streams and rivers shall be
determined by the Secretary based on
recommendations of the United States Fish and
Wildlife Service and the National Marine
Fisheries Service after consultation with the
[California Department of Fish and Game] United
States Geological Survey.
* * * * * * *
(2) upon enactment of this title dedicate and manage
annually eight hundred thousand acre-feet of Central
Valley Project yield for the [primary purpose] purposes
of implementing the fish, wildlife, and habitat
restoration purposes and measures authorized by this
title; to assist the State of California in its efforts
to protect the waters of the San Francisco Bay/
Sacramento-San Joaquin Delta Estuary; and to help to
meet such obligations as may be legally imposed upon
the Central Valley Project under State or Federal law
following the date of enactment of this title,
including [but not limited to] additional obligations
under the Federal Endangered Species Act. All Central
Valley Project water used for the purposes specified in
this paragraph shall be credited to the quantity of
Central Valley Project yield dedicated and managed
under this paragraph by determining how the dedication
and management of such water would affect the delivery
capability of the Central Valley Project during the
1928 to 1934 drought period after fishery, water
quality, and other flow and operational requirements
imposed by terms and conditions existing in licenses,
permits, and other agreements pertaining to the Central
Valley Project under applicable State or Federal law
existing on October 30, 1992, have been met. To the
fullest extent possible and in accordance with section
3411, Central Valley Project water dedicated and
managed pursuant to this paragraph shall be reused to
fulfill the Secretary's remaining contractual
obligations to provide Central Valley Project water for
agricultural or municipal and industrial purposes. For
the purpose of this section, the term ``Central Valley
Project yield'' means the delivery capability of the
Central Valley Project during the 1928-1934 drought
period after fishery, water quality, and other flow and
operational requirements imposed by terms and
conditions existing in licenses, permits, and other
agreements pertaining to the Central Valley Project
under applicable State or Federal law existing at the
time of enactment of this title have been met.
(A) * * *
* * * * * * *
[(C) The Secretary may temporarily reduce
deliveries of the quantity of water dedicated
under this paragraph up to 25 percent of such
total whenever reductions due to hydrologic
circumstances are imposed upon agricultural
deliveries of Central Valley Project water;
Provided, That such reductions shall not exceed
in percentage terms the reductions imposed on
agricultural service contractors; Provided
further, That nothing in this subsection or
subsection 3406(e) shall require the Secretary
to operate the project in a way that
jeopardizes human health or safety.]
(C) If by March 15th of any year the quantity
of Central Valley Project water forecasted to
be made available to water service or repayment
contractors in the Delta Division of the
Central Valley Project is below 75 percent of
the total quantity of water to be made
available under said contracts, the quantity of
Central Valley Project yield dedicated and
managed for that year under this paragraph
shall be reduced by 25 percent.
* * * * * * *
(i) Satisfaction of purposes.--By
pursuing the activities described in
this section, the Secretary shall be
deemed to have met the mitigation,
protection, restoration, and
enhancement purposes of this title.
SEC. 3407. RESTORATION FUND.
(a) Restoration Fund Established.--(1) In general.--There is
hereby established in the Treasury of the United States the
``Central Valley Project Restoration Fund'' (hereafter
``Restoration Fund'') which shall be available for deposit of
donations from any source and revenues provided under sections
3404(c)(3), 3405(f), 3406(c)(1), and 3407(d) of this title.
Amounts deposited shall be credited as offsetting collections.
[Not less than 67 percent of all funds made available to the
Restoration Fund under this title are authorized to be
appropriated to the Secretary to carry out the habitat
restoration, improvement and acquisition (from willing sellers)
provisions of this title. Not more than 33 percent of all funds
made available to the Restoration Fund under this title are
authorized to be appropriated to the Secretary to carry out the
provisions of paragraphs 3406(b)(4)-(6), (10)-(18), and (20)-
(22) of this title. Monies] Monies donated to the Restoration
Fund by non-Federal entities for specific purposes shall be
expended for those purposes only and shall not be subject to
appropriation.
(2) Prohibitions.--The Secretary may not directly or
indirectly require a donation or other payment to the
Restoration Fund--
(A) or environmental restoration or mitigation fees
not otherwise provided by law, as a condition to--
(i) providing for the storage or conveyance
of non-Central Valley Project water pursuant to
Federal reclamation laws; or
(ii) the delivery of water pursuant to
section 215 of the Reclamation Reform Act of
1982 (Public Law 97-293; 96 Stat. 1270); or
(B) for any water that is delivered with the sole
intent of groundwater recharge.
* * * * * * *
(c) Mitigation and Restoration Payments by Water and Power
Beneficiaries.--
(1) To the extent required in appropriation Acts, the
Secretary shall assess and collect additional annual
[mitigation and restoration] payments, in addition to
the charges [provided for or] collected under sections
3404(c)(3), 3405(a)(1)(C), 3405(f), and 3406(c)(1) of
this title, consisting of charges to direct
beneficiaries of the Central Valley Project under
subsection (d) of this section in order to recover a
portion or all of the costs [of fish, wildlife, and
habitat restoration programs and projects under this
title.] of carrying out all activities described in
this title.
* * * * * * *
(d) Adjustment and Assessment of Mitigation and Restoration
Payments.--
(1) * * *
(2) The Secretary shall assess and collect the
following mitigation and restoration payments, to be
covered to the Restoration Fund, subject to the
requirements of paragraph (1) of this subsection:
(A) The Secretary shall require Central
Valley Project water and power contractors to
make such additional annual payments as are
necessary to yield, together with all other
receipts, the amount required under paragraph
(c)(2) of this subsection; Provided, That such
additional payments shall not exceed
$30,000,000 (October 1992 price levels) on a
three-year rolling average basis; Provided
further, That such additional annual payments
shall be allocated so as not to exceed $6 per
acre-foot (October 1992 price levels) for
agricultural water sold and delivered by the
Central Valley Project, and $12 per acre-foot
(October 1992 price levels) for municipal and
industrial water sold and delivered by the
Central Valley Project, or after October 1,
2013, $4 per megawatt-hour for Central Valley
Project power sold to power contractors
(October 2013 price levels); Provided further,
That the charge imposed on agricultural water
shall be reduced, if necessary, to an amount
within the probable ability of the water users
to pay as determined and adjusted by the
Secretary no less than every five years, taking
into account the benefits resulting from
implementation of this title; Provided further,
That the Secretary shall impose an additional
annual charge of $25 per acre-foot (October
1992 price levels) for Central Valley Project
water sold or transferred to any State or local
agency or other entity which has not previously
been a Central Valley Project customer and
which contracts with the Secretary or any other
individual or district receiving Central Valley
Project water to purchase or otherwise transfer
any such water for its own use for municipal
and industrial purposes, to be deposited in the
Restoration Fund; And Provided further, That
upon the completion of the fish, wildlife, and
habitat mitigation and restoration actions
mandated under section 3406 of this title,, no
later than December 31, 2020, the Secretary
shall reduce the sums described in paragraph
(c)(2) of this section to $35,000,000 per year
(October 1992 price levels) and shall reduce
the annual mitigation and restoration payment
ceiling established under this subsection to
$15,000,000 (October 1992 price levels) on a
three-year rolling average basis. The amount of
the mitigation and restoration payment made by
Central Valley Project water and power users,
taking into account all funds collected under
this title, shall, to the greatest degree
practicable, be assessed in the same
proportion, measured over a ten-year rolling
average, as water and power users' respective
allocations for repayment of the Central Valley
Project.
* * * * * * *
(g) Report on Expenditure of Funds.--At the end of each
fiscal year, the Secretary, in consultation with the
Restoration Fund Advisory Board, shall submit to Congress a
plan for the expenditure of all of the funds deposited into the
Restoration Fund during the preceding fiscal year. Such plan
shall contain a cost-effectiveness analysis of each
expenditure.
(h) Advisory Board.--
(1) Establishment.--There is hereby established the
Restoration Fund Advisory Board (hereinafter in this
section referred to as the ``Advisory Board'') composed
of 12 members selected by the Secretary, each for four-
year terms, one of whom shall be designated by the
Secretary as Chairman. The members shall be selected so
as to represent the various Central Valley Project
stakeholders, four of whom shall be from CVP
agricultural users, three from CVP municipal and
industrial users, three from CVP power contractors, and
two at the discretion of the Secretary. The Secretary
and the Secretary of Commerce may each designate a
representative to act as an observer of the Advisory
Board.
(2) Duties.--The duties of the Advisory Board are as
follows:
(A) To meet at least semiannually to develop
and make recommendations to the Secretary
regarding priorities and spending levels on
projects and programs carried out pursuant to
the Central Valley Project Improvement Act.
(B) To ensure that any advice or
recommendation made by the Advisory Board to
the Secretary reflect the independent judgment
of the Advisory Board.
(C) Not later than December 31, 2013, and
annually thereafter, to transmit to the
Secretary and Congress recommendations required
under subparagraph (A).
(D) Not later than December 31, 2013, and
biennially thereafter, to transmit to Congress
a report that details the progress made in
achieving the actions mandated under section
3406 of this title.
(3) Administration.--With the consent of the
appropriate agency head, the Advisory Board may use the
facilities and services of any Federal agency.
SEC. 3408. ADDITIONAL AUTHORITIES.
(a) * * *
* * * * * * *
[(c) Contracts for Additional Storage and Delivery of
Water.--The Secretary is authorized to enter into contracts
pursuant to Reclamation law and this title with any Federal
agency, California water user or water agency, State agency, or
private nonprofit organization for the exchange, impoundment,
storage, carriage, and delivery of Central Valley Project and
non-project water for domestic, municipal, industrial, fish and
wildlife, and any other beneficial purpose, except that nothing
in this subsection shall be deemed to supersede the provisions
of section 103 of Public Law 99-546 (100 Stat. 3051).]
(c) Contracts for Additional Storage and Delivery of Water.--
(1) In general.--The Secretary is authorized to enter
into contracts pursuant to Federal reclamation law and
this title with any Federal agency, California water
user or water agency, State agency, or private
organization for the exchange, impoundment, storage,
carriage, and delivery of nonproject water for
domestic, municipal, industrial, fish and wildlife, and
any other beneficial purpose.
(2) Limitation.--Nothing in this subsection shall be
deemed to supersede the provisions of section 103 of
Public Law 99-546 (100 Stat. 3051).
(3) Authority for certain activities.--The Secretary
shall use the authority granted by this subsection in
connection with requests to exchange, impound, store,
carry, or deliver nonproject water using Central Valley
Project facilities for any beneficial purpose.
(4) Rates.--The Secretary shall develop rates not to
exceed the amount required to recover the reasonable
costs incurred by the Secretary in connection with a
beneficial purpose under this subsection. Such rates
shall be charged to a party using Central Valley
Project facilities for such purpose. Such costs shall
not include any donation or other payment to the
Restoration Fund.
(5) Construction.--This subsection shall be construed
and implemented to facilitate and encourage the use of
Central Valley Project facilities to exchange, impound,
store, carry, or deliver nonproject water for any
beneficial purpose.
* * * * * * *
(f) Annual Reports to Congress.--Not later than September 30
of each calendar year after the date of enactment of this
title, the Secretary shall submit a detailed report to the
Committee on Energy and Natural Resources of the Senate and the
Committee on [Interior and Insular Affairs and the Committee on
Merchant Marine and Fisheries] Natural Resources of the House
of Representatives. Such report shall describe all significant
actions taken by the Secretary pursuant to this title and
progress toward achievement of the intent, purposes and
provisions of this title, including progress on the plan
required by subsection (j). Such report shall include
recommendations for authorizing legislation or other measures,
if any, needed to implement the intent, purposes and provisions
of this title. The filing and adequacy of such report shall be
personally certified to the Committees referenced above by the
Regional Director of the Mid-Pacific Region of the Bureau of
Reclamation.
* * * * * * *
(h) Land Retirement.--
(1) The Secretary is authorized to purchase from
willing sellers land and associated water rights and
other property interests identified in [paragraph
(h)(2)] paragraph (2) which receives Central Valley
Project water under a contract executed with the United
States, and to target such purchases to areas deemed
most beneficial to the overall purchase program,
including the purposes of this title.
(2) The Secretary is authorized to purchase, under
the authority of [paragraph (h)(i)] paragraph (1), and
pursuant to such rules and regulations as may be
adopted or promulgated to implement the provisions of
this subsection, agricultural land which, in the
opinion of the Secretary--
(A) * * *
* * * * * * *
(j) Project Yield Increase.--[In order to minimize adverse
effects, if any, upon] (1) In general.--In order to minimize
adverse effects upon existing Central Valley Project water
contractors resulting from the water dedicated to fish and
wildlife under this title, and to assist the State of
California in meeting its future water needs, the Secretary
shall, not later than three years after the date of enactment
of this title, develop and submit to the Congress, a least-cost
plan to increase, within fifteen years after the date of
enactment of this title, the yield of the Central Valley
Project by the amount dedicated to fish and wildlife purposes
under this title. The plan authorized by this subsection shall
include, but shall not be limited to a description of how the
Secretary intends to use the following options:
[(1)] (A) improvements in, modification of, or
additions to the facilities and operations of the
project and construction of new water storage
facilities;
[(2)] (B) conservation;
[(3)] (C) transfers;
[(4)] (D) conjunctive use;
[(5)] (E) purchase of water;
[(6)] (F) purchase and idling of agricultural land;
[and]
[(7)] (G) direct purchase of water rights[.]; and
[Such plan shall include recommendations on appropriate cost-
sharing arrangements and shall be developed in a manner
consistent with all applicable State and Federal law.]
(H) Water banking and recharge.
(2) Implementation of plan.--The Secretary shall implement
the plan required by paragraph (1) commencing on October 1,
2013. In order to carry out this subsection, the Secretary
shall coordinate with the State of California in implementing
measures for the long-term resolution of problems in the San
Francisco Bay/Sacramento-San Joaquin Delta Estuary.
(3) Failure of the plan.--Notwithstanding any other provision
of Federal reclamation law, if by September 30, 2016, the plan
required by paragraph (1) fails to increase the annual delivery
capability of the Central Valley Project by 800,000 acre-feet,
implementation of any non-mandatory action under section
3406(b)(2) shall be suspended until the plan achieves an
increase in the annual delivery capability of the Central
Valley Project by 800,000 acre-feet.
* * * * * * *
----------
SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
* * * * * * *
TITLE X--WATER SETTLEMENTS SUBTITLE A--SAN JOAQUIN RIVER RESTORATION
SETTLEMENT
PART I--SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
* * * * * * *
SEC. 10002. PURPOSE.
The purpose of this part is to authorize [implementation of
the Settlement] restoration of the San Joaquin River.
SEC. 10003. DEFINITIONS.
In this part:
[(1) 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.]
(1) The term ``Restoration Flows'' means the
additional water released or bypassed from Friant Dam
to insure that the target flow entering Mendota Pool,
located approximately 62 river miles downstream from
Friant Dam, does not fall below 50 cubic feet per
second.
* * * * * * *
[(3) The term ``Settlement'' means the Stipulation of
Settlement dated September 13, 2006, 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.]
(3) The term ``Water Year'' means March 1 through the
last day of February of the following Calendar Year,
both dates inclusive
(4) The term ``Critical Water Year'' means when the
total unimpaired runoff at Friant Dam is less than
400,000 acre-feet, as forecasted as of March 1 of that
water year by the California Department of Water
Resources.
SEC. 10004. IMPLEMENTATION OF SETTLEMENT.
(a) In General.--The Secretary of the Interior 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] authorized to carry out the
following::
[(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)] (1) Acquire water, water rights, or options to
acquire water as described in [paragraph 13 of the
Settlement] this part, 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.]
(2) In each Water Year, commencing in the Water Year
starting on March 1, 2013--
(A) shall modify Friant Dam operations so as
to release the Restoration Flows for that Water
Year, except in any Critical Water Year;
(B) shall ensure that the release of
Restoration Flows are maintained at the level
prescribed by this part, but that Restoration
Flows do not reach downstream of Mendota Pool;
(C) shall release the Restoration Flows in a
manner that improves the fishery in the San
Joaquin River below Friant Dam, but upstream of
Gravelly Ford in existence as of the date of
the enactment of this part, and the associated
riparian habitat; and
(D) may, without limiting the actions
required under paragraphs (A) and (C) and
subject to subsections 10004(a)(3) and
10004(l), use the Restoration Flows to enhance
or restore a warm water fishery downstream of
Gravelly Ford to and including Mendota Pool, if
the Secretary determines that it is reasonable,
prudent, and feasible to do so; and
(3) Not later than 1 year after the date of the
enactment of this section, the Secretary shall develop
and implement, in cooperation with the State of
California, a reasonable plan, to fully recirculate,
recapture, reuse, exchange, or transfer all Restoration
Flows and provide such recirculated, recaptured,
reused, exchanged, or transferred flows to those
contractors within the Friant Division, Hidden Unit,
and Buchanan Unit of the Central Valley Project that
relinquished the Restoration Flows so recirculated,
recaptured, reused, exchanged, or transferred. Such a
plan shall address any impact on ground water resources
within the service area of the Friant Division, Hidden
Unit, and Buchanan Unit of the Central Valley Project
and mitigation may include ground water banking and
recharge projects. Such a plan shall not impact the
water supply or water rights of any entity outside the
Friant Division, Hidden unit, and Buchanan Unit of the
Central Valley Project. Such a plan shall be subject to
applicable provisions of California water law and the
Secretary's use of Central Valley Project facilities to
make Project water (other than water released from
Friant Dam pursuant to this part) and water acquired
through transfers available to existing south-of-Delta
Central Valley Project contractors.
(b) Agreements.--
(1) Agreements with the state.--In order to
facilitate or expedite implementation of [the
Settlement] this part, 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] this part.
(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] this
part.
[(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.]
(d) Mitigation of Impacts.--Prior to October 1, 2013, the
Secretary shall identify--
(1) the impacts associated with the release of
Restoration Flows prescribed in this part;
(2) the measures which shall be implemented to
mitigate impacts on adjacent and downstream water
users, landowners and agencies as a result of
Restoration Flows prescribed in this part; and
(3) prior to the implementation of decisions or
agreements to construct, improve, operate, or maintain
facilities that the Secretary determines are needed to
implement this part, the Secretary shall implement all
mitigations measures identified in subsection (d)(2)
before Restoration Flows are commenced.
(e) Design and Engineering Studies.--The Secretary is
authorized to conduct any design or engineering studies that
are necessary to implement [the Settlement] this part.
(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 10011] this part, 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 part, nothing in this part shall
modify or amend the rights and obligations of the parties to
any existing water service, repayment, purchase, [or exchange
contract] exchange contract, or water rights settlement or
holding contracts.
(h) [Interim] Flows.--
(1) Study required.--Prior to releasing any [Interim
Flows under the Settlement] Restoration Flows under
this part, the Secretary shall prepare an analysis in
compliance with the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.), including at a
minimum--
(A) * * *
* * * * * * *
(C) an evaluation of--
(i) possible impacts associated with
the release of [Interim] Restoration
Flows; and
(ii) mitigation measures for those
impacts that are determined to be
significant; and
(D) a description of the associated flow
monitoring program[ ;and].
[(E) an analysis of the likely Federal costs,
if any, of any fish screens, fish bypass
facilities, fish salvage facilities, and
related operations on the San Joaquin River
south of the confluence with the Merced River
required under the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) as a result of
the Interim Flows.]
(2) Conditions for release.--The Secretary is
authorized to release [Interim] Restoration Flows to
the extent that such flows would not--
[(A) impede or delay completion of the
measures specified in Paragraph 11(a) of the
Settlement; or]
[(B) exceed] exceed existing downstream
channel capacities.
(3) Seepage impacts.--The Secretary shall reduce
[Interim] Restoration Flows to the extent necessary to
address any material adverse impacts to third parties
from groundwater seepage caused by such flows that the
Secretary identifies based on the monitoring program of
the Secretary.
[(4) Temporary fish barrier program.--The Secretary,
in consultation with the California Department of Fish
and Game, shall evaluate the effectiveness of the Hills
Ferry barrier in preventing the unintended upstream
migration of anadromous fish in the San Joaquin River
and any false migratory pathways. If that evaluation
determines that any such migration past the barrier is
caused by the introduction of the Interim Flows and
that the presence of such fish will result in the
imposition of additional regulatory actions against
third parties, the Secretary is authorized to assist
the Department of Fish and Game in making improvements
to the barrier. From funding made available in
accordance with section 10009, if third parties along
the San Joaquin River south of its confluence with the
Merced River are required to install fish screens or
fish bypass facilities due to the release of Interim
Flows in order to comply with the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.), the Secretary
shall bear the costs of the installation of such
screens or facilities if such costs would be borne by
the Federal Government under section 10009(a)(3),
except to the extent that such costs are already or are
further willingly borne by the State of California or
by the third parties.]
(4) Claims.--Within 60 days of enactment of this Act
the Secretary shall promulgate a rule establishing a
claims process to address current and future claims
including, but not limited to, ground water seepage,
flooding, or levee instability damages caused as a
result of, arising out of, or related to implementation
of subtitle A of title X of Public Law 111-11.
(i) Funding Availability.--
(1) In general.--Funds shall be collected in the San
Joaquin River Restoration Fund through October 1, 2019,
and thereafter, with substantial amounts available
through October 1, 2019, pursuant to section 10009 for
implementation of [the Settlement and parts I and III]
this part, including--
(A) $88,000,000, to be available without
further appropriation pursuant to section
10009(c)(2); and
(B) [additional amounts authorized to be
appropriated, including the] charges required
under section 10007 and an estimated
$20,000,000 from the CVP Restoration Fund
pursuant to section 10009(b)(2)[; and].
[(C) an aggregate commitment of at least
$200,000,000 by the State of California.]
* * * * * * *
[(3) Effect of subsection.--Nothing in this
subsection limits the availability of funds authorized
for appropriation pursuant to section 10009(b) or
10203(c).]
* * * * * * *
(k) No Impacts on Other Interests.--No Central Valley Project
or other water other than San Joaquin River water impounded by
or bypassed from Friant Dam shall be used to implement
subsection (a)(2) unless such use is on a voluntary basis. No
cost associated with the implementation of this section shall
be imposed directly or indirectly on any Central Valley Project
contractor, or any other person or entity, outside the Friant
Division, the Hidden Unit, or the Buchanan Unit, unless such
costs are incurred on a voluntary basis. The implementation of
this part shall not result directly or indirectly in any
reduction in water supplies or water reliability on any Central
Valley Project contractor, any State Water Project contractor,
or any other person or entity, outside the Friant Division, the
Hidden Unit, or the Buchanan Unit, unless such reductions or
costs are incurred on a voluntary basis.
(l) Priority.--All actions taken under this part shall be
subordinate to the Secretary's use of Central Valley Project
facilities to make Project water available to Project
contractors, other than water released from the Friant Dam
pursuant to this part.
(m) In General.--Notwithstanding section 8 of the Reclamation
Act of 1902, except as provided in this part, including Title
IV of the Sacramento and San Joaquin Valleys Water Reliability
Act, this part preempts and supersedes any State law,
regulation, or requirement that imposes more restrictive
requirements or regulations on the activities authorized under
this part. Nothing in this part shall alter or modify the
obligations, if any, of the Friant Division, Hidden Unit, and
Buchanan Unit of the Central Valley Project, or other water
users on the San Joaquin River or its tributaries, under orders
issued by the State Water Resources Control Board pursuant to
the Porter-Cologne Water Quality Control Act (California Water
Code sections 13000 et seq.). Any such order shall be
consistent with the congressional authorization for any
affected Federal facility as it pertains to the Central Valley
Project.
(n) Project Implementation.--Projects to implement this title
shall be phased such that each project shall follow the
sequencing identified below and include at least the--
(1) project purpose and need;
(2) identification of mitigation measures;
(3) appropriate environmental review; and
(4) prior to releasing Restoration Flows under this
part, the Secretary shall--
(A) complete the implementation of mitigation
measures required; and
(B) complete implementation of the project.
* * * * * * *
SEC. 10005. 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
part] this part, and title to any modifications or improvements
of such facility or facilities, stream channel, levees, or
other real property--
(1) * * *
* * * * * * *
(b) Acquisition of Property.--
[(1) In general.--The Secretary] 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 part] this part.
[(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 10004.]
(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 part is no longer
needed to be held by the United States for the
furtherance of [the Settlement] this part, 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 part [through the exercise of its eminent domain
authority] is no longer necessary for implementation of
[the Settlement] this part, 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 10009(c)] section 10009.
* * * * * * *
SEC. 10006. COMPLIANCE WITH APPLICABLE LAW.
(a) Applicable Law.--
(1) In general.--In undertaking the measures
authorized by this part, 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 unless
otherwise provided by this part.
(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] this part.
(b) Effect on State Law.--Nothing in this part 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, unless otherwise
provided by this part.
(c) Use of Funds for Environmental Reviews.--
(1) * * *
(2) Participation in environmental review process.--
In undertaking the measures authorized by [section
10004] this part, and for which environmental review is
required, the Secretary may provide funds made
available under this part 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] this part.
(d) Nonreimbursable Funds.--The United States' share of the
costs of implementing this part, including without limitation
to sections 10004(d) and 10004(h)(4) of this part, 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. 10007. COMPLIANCE WITH CENTRAL VALLEY PROJECT IMPROVEMENT ACT.
Congress hereby finds and declares that [the Settlement]
enactment of this part 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) and the obligations
of the Secretary and all other parties to protect and keep in
good condition any fish that may be planted or exist below
Friant Dam including any obligations under section 5937 of the
California Fish and Game Code and the public trust doctrine,
and those of the Secretary and all other parties under the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).,
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
* * * * * * *
SEC. 10008. NO PRIVATE RIGHT OF ACTION.
(a) In General.--Nothing in this part 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 part [or the Settlement] unless otherwise
provided by this part. Any Central Valley Project long-term
water service or repayment contractor within the Friant
Division, Hidden unit, or Buchanan Unit adversely affected by
the Secretary's failure to comply with section 10004(a)(3) of
this part may bring an action against the Secretary for
injunctive relief or damages, or both..
* * * * * * *
SEC. 10009. APPROPRIATIONS[; SETTLEMENT FUND].
(a) Implementation Costs.--
(1) In general.--The costs of implementing [the
Settlement] this part shall be covered by payments or
in-kind contributions made by Friant Division
contractors and other non-Federal parties, including
the funds provided in subparagraphs (A) through (D) of
subsection (c)(1)[, 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 10004(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] 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 10004(a)(1).]
(3) Limitation.--[Except as provided in the
Settlement, to] To the extent that costs incurred
solely to implement [this Settlement] this part 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 funding provided
in subsection (c), there are also authorized to be
appropriated not to exceed $250,000,000 (at October
2006 price levels) to implement this part and the
Settlement, to be available until expended; provided
however, that the] The Secretary is authorized to spend
[such additional appropriations only in amounts equal
to] the amount of funds deposited in the San Joaquin
River Restoration Fund (not including payments under
subsection (c)(1)(B) and proceeds under subsection
(c)(1)(C)), the amount of in-kind contributions, and
other non-Federal payments actually committed to the
implementation of this part [or the Settlement].
* * * * * * *
(c) Fund.--
(1) In general.--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 funds shall be deposited and used solely
for the purpose of implementing [the Settlement] this
part except as otherwise provided in subsections (a)
and (b) of section 10203:
(A) * * *
* * * * * * *
(C) Proceeds [from the sale of water pursuant
to the Settlement, or] from the sale of
property or interests in property as provided
in section 10005.
(D) Any non-Federal funds, including State
cost-sharing funds, contributed to the United
States for implementation of [the Settlement]
this part, which the Secretary may expend
without further appropriation for the purposes
for which contributed.
(2) Availability.--All funds deposited into the Fund
pursuant to subparagraphs (A), (B), and (C) of
paragraph (1) are authorized for appropriation to
implement [the Settlement and] this part, in addition
to the authorization provided in subsections (a) and
(b) of section 10203, except that $88,000,000 of such
funds are available for expenditure without further
appropriation; provided that after October 1, 2019, all
funds in the Fund shall be available for expenditure
without further appropriation.
[(d) 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)(1)(B) 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.
[(e) No Additional Expenditures Required.--Nothing in this
part 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.
[(f) 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
subtitle, 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 that
paragraph, would exceed the remaining Federal funding
authorized by this part (including all funds
reallocated, all funds dedicated, and all new funds
authorized by this part 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 part in an amount at least
sufficient to cover the higher estimated Federal
costs.]
SEC. 10010. REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF
CONSTRUCTION COSTS.
(a) Conversion of Contracts.--
(1) * * *
* * * * * * *
(3) All such contracts entered into pursuant to
paragraph (1) shall--
(A) * * *
* * * * * * *
(D) conform to [the Settlement and] this part
and shall continue so long as the contractor
pays applicable charges, consistent with
subsection (c)(2) and applicable law.
(4) All such contracts entered into pursuant to
paragraph (2) shall--
(A) * * *
* * * * * * *
(C) conform to [the Settlement and] this part
and shall continue so long as the contractor
pays applicable charges, consistent with
subsection (c)(2) and applicable law.
* * * * * * *
(c) Applicability of Certain Provisions.--
(1) * * *
* * * * * * *
[(3) Provisions of the Settlement applying to Friant
Division, Hidden Unit, and Buchanan Unit long-term
water service contracts shall also apply to contracts
executed pursuant to this section.]
(d) Reduction of Charge for Those Contracts Converted
Pursuant to Subsection (a)(1).--
(1) At the time all payments by the contractor
required by subsection (a)(3)(A) have been completed,
the Secretary shall reduce the charge mandated in
section 10007(1) of this part, from 2020 through 2039,
to offset the financing costs as defined in section
10010(d)(3). The reduction shall be calculated at the
time all payments by the contractor required by
subsection (a)(3)(A) have been completed. The
calculation shall remain fixed from 2020 through 2039
and shall be based upon anticipated average annual
water deliveries, as mutually agreed upon by the
Secretary and the contractor, for the period from 2020
through 2039, and the amounts of such reductions shall
be discounted using the Treasury Rate; provided, that
such charge shall not be reduced to less than $4.00 per
acre foot of project water delivered; provided further,
that such reduction shall be implemented annually
unless the Secretary determines, based on the
availability of other monies, that the charges mandated
in section 10007(1) are otherwise needed to cover
ongoing federal costs of [the Settlement] this part,
including any federal operation and maintenance costs
of facilities that the Secretary determines are needed
to implement [the Settlement] this part. If the
Secretary determines that such charges are necessary to
cover such ongoing federal costs, the Secretary shall,
instead of making the reduction in such charges, reduce
the contractor's operation and maintenance obligation
by an equivalent amount, and such amount shall not be
recovered by the United States from any Central Valley
Project contractor, provided nothing herein shall
affect the obligation of the contractor to make
payments pursuant to a transfer agreement with a non-
federal operating entity.
* * * * * * *
(e) Satisfaction of Certain Provisions.--
(1) In general.--Upon the first release of [Interim
Flows or Restoration Flows, pursuant to paragraphs 13
or 15 of the Settlement] Restoration Flows, pursuant to
this part, any short- or long-term agreement, to which
1 or more long-term Friant Division, Hidden Unit, or
Buchanan Unit contractor that converts its contract
pursuant to subsection (a) is a party, providing for
the transfer or exchange of water not released as
[Interim Flows or] Restoration Flows shall be deemed to
satisfy the provisions of subsection 3405(a)(1)(A) and
(I) of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575) without the
further concurrence of the Secretary as to compliance
with said subsections if the contractor provides, not
later than 90 days before commencement of any such
transfer or exchange for a period in excess of 1 year,
and not later than 30 days before commencement of any
proposed transfer or exchange with duration of less
than 1 year, written notice to the Secretary stating
how the proposed transfer or exchange is intended to
reduce, avoid, or mitigate impacts to water deliveries
caused by [the Interim Flows or Restoration Flows or is
intended to otherwise facilitate the Water Management
Goal, as described in the Settlement] Restoration
Flows. The Secretary shall promptly make such notice
publicly available.
(2) Determination of reductions to water
deliveries.--Water transferred or exchanged under an
agreement that meets the terms of this subsection shall
not be counted as a replacement or an offset for
purposes of determining reductions to water deliveries
to any Friant Division long-term contractor [except as
provided in paragraph 16(b) of the Settlement]. The
Secretary shall, at least annually, make publicly
available a compilation of the number of transfer or
exchange agreements exercising the provisions of this
subsection to reduce, avoid, or mitigate impacts to
water deliveries caused by [the Interim Flows or
Restoration Flows or to facilitate the Water Management
Goal] Restoration Flows, as well as the volume of water
transferred or exchanged under such agreements.
* * * * * * *
[SEC. 10011. 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 laws 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 minimus: 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 of 1973 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.).]
* * * * * * *
PART III--FRIANT DIVISION IMPROVEMENTS
* * * * * * *
SEC. 10202. FINANCIAL ASSISTANCE FOR LOCAL PROJECTS.
(a) * * *
(b) Criteria.--
(1) A project shall be eligible for Federal financial
assistance under subsection (a) only if all or a
portion of the project is designed to reduce, avoid, or
offset the quantity of the expected water supply
impacts to Friant Division long-term contractors caused
by [the Interim or Restoration Flows authorized in part
I of this subtitle] Restoration Flows authorized in
this part, and such quantities have not already been
reduced, avoided, or offset by other programs or
projects.
(2) Federal financial assistance shall only apply to
the portion of a project that the local agency
designates as reducing, avoiding, or offsetting the
expected water supply impacts caused by [the Interim or
Restoration Flows authorized in part I of this
subtitle] Restoration Flows authorized in this part,
consistent with the methodology developed pursuant to
paragraph (3)(C).
(3) No Federal financial assistance shall be provided
by the Secretary under this part for construction of a
project under subsection (a) unless the Secretary--
(A) determines that appropriate planning,
design, and environmental compliance activities
associated with such a project have been
completed, and that the Secretary has been
offered the opportunity to participate in the
project at a price that is no higher than the
local agency's own costs, in order to secure
necessary storage, extraction, and conveyance
rights for water that may be needed to [meet
the Restoration Goal as described in part I of
this subtitle] recover Restoration Flows as
described in this part, where such project has
capacity beyond that designated for the
purposes in paragraph (2) or where it is
feasible to expand such project to allow
participation by the Secretary;
(B) * * *
(C) determines that a method acceptable to
the Secretary has been developed for
quantifying the benefit, in terms of reduction,
avoidance, or offset of the water supply
impacts expected to be caused by [the Interim
or Restoration Flows authorized in part I of
this subtitle] Restoration Flows authorized in
this part, that will result from the project[,
and for ensuring appropriate adjustment in the
recovered water account pursuant to section
10004(a)(5)]; and
* * * * * * *
SEC. 10203. AUTHORIZATION OF APPROPRIATIONS.
(a) * * *
(b) In addition to the funds made available pursuant to
subsection (a), the Secretary is also authorized to expend such
additional funds from the fund established under section 10009
to carry out the purposes of section 10201(a)(2), if such
facilities have not already been authorized and funded under
the plan provided for pursuant to [section 10004(a)(4)] section
10004(a)(3), in an amount not to exceed $17,000,000[, provided
that the Secretary first determines that such expenditure will
not conflict with or delay his implementation of actions
required by part I of this subtitle. Notice of the Secretary's
determination shall be published not later than his submission
of the report to Congress required by section 10009(f)(2)].
[(c) In addition to funds made available in subsections (a)
and (b), there are authorized to be appropriated $50,000,000
(October 2008 price levels) to carry out the purposes of this
part which shall be non-reimbursable.]
* * * * * * *
DISSENTING VIEWS
H.R. 1837 sets an unprecedented standard for state
preemption, environmental disregard, and the permanent
privatization of public water resources. The legislation as
passed out of committee will undermine the progress being made
to resolve California's water challenges and should be
rejected.
If enacted, this legislation would cause more legal
uncertainty for local communities, not less. Title II of H.R.
1837 would repeal the court ordered, legally binding San
Joaquin Restoration Settlement Act and prohibit further federal
participation in the San Joaquin River Settlement. Proponents
of this title are not party to the Settlement. Title II is
contrary to the views held by the parties to the settlement.
For example, the Friant Water Authority has stated that they
have a ``contractual obligation to comply with the
Settlement,'' and therefore ``opposes amendments to the
Settlement Act that are not agreed to by the parties.''
H.R. 1837 would repeal several provisions of the Central
Valley Project Improvement Act (CVPIA), including changing the
definition of protected species to fish that were present in
1992. This would exclude any salmon that are recovered as a
part of the San Joaquin Settlement, since there were no salmon
in the San Joaquin River in 1992. H.R. 1837 would also strike
the tiered water system established by the CVPIA, which put in
place a pricing system that depends on the amount of water
used. H.R. 1837 reverts contract renewal terms back to 40 years
from the current 25, and directs the Secretary upon request to
renew contracts for successive, 40-year terms in perpetuity.
This amounts to de facto privatization of a public resource.
Section 108 of H.R. 1837 would deem that all requirements
of the Endangered Species Act (ESA) in the operation of the CVP
would be met through the ``Principles Agreement on the Bay-
Delta Standards between the State of California and the Federal
Government,'' or the 1994 Bay Delta Accord. Reverting to the
Bay Delta Accord ignores the last fifteen years of best
available science and disregards the negative effects on
species as a result of water deliveries. The Pacific Fishery
Management Council has expressed concern regarding provisions
in this legislation and its ``potentially negative impact on
coastal communities and fishing related businesses.''
Congressman John Garamendi (D-CA) offered an amendment to
require that the operations of the Central Valley Project (CVP)
and the State Water Project be in compliance with state law and
the best available science. The amendment was not agreed to.
Provisions in this legislation further prohibit the State
from taking any action to manage its water resources as
required by the California Water Code and Constitution. In a
May 2011 letter from the California State Legislature, signed
by President pro Tempore Darrell Steinberg and Assembly Speaker
John Perez, H.R. 1837 is described as ``breathtaking in its
total disregard for equity and its willful subjugation of the
State of California to the whims of federal action.'' Water and
Power Subcommittee Ranking Member Grace Napolitano offered an
amendment that would prevent the preemption of the state
constitution. The amendment was not agreed to.
Strong objection to this legislation is echoed by the
Western States Water Council, a nonpartisan council consisting
of representatives appointed by the governors of 18 western
states. Council Chair Weir Labatt III has stated that ``the
Council opposes any weakening of the deference to state water
law as now expressed in Section 8 [of H.R. 1837] as
inconsistent with the policy of cooperative federalism that has
guided Reclamation Law for over a century. This is a threat to
water rights and water rights administration in all of the
Western States.'' The States of Colorado, Wyoming and Oregon
have also sent in letters in opposition to the legislation.
California State Natural Resources Secretary John Laird has
also expressed concern, stating that ``if this bill passes, no
state will be safe from congressional interference in their
water rights laws.'' Subcommittee Chairman Tom McClintock (R-
CA) offered a substitute amendment that added a new Title IV
that affirms existing water rights and area of origin rights in
Northern California. While the provisions of Title IV are
clearly an attempt to address concerns raised with the original
bill, Title IV does not supersede the legislation's overall
preemption of both state law and a century of Reclamation law.
In response to these concerns, Congressman Garamendi offered an
amendment that nothing in the legislation would preempt state
law. This amendment was also not agreed to.
The legislation prohibits action to address legitimate
environmental concerns as well as any progress on ongoing
surface water studies. Republicans held a hearing on new
reservoir storage just a week prior to the mark-up where
Reclamation explained that the greatest impediment to the
construction of new facilities is the lack of congressional
authorization and federal funding. Congressman Jim Costa (D-CA)
offered an amendment that would have authorized the
construction of Shasta Reservoir. The majority considered this
amendment an earmark, despite not being located in Congressman
Costa's district. The amendment was withdrawn. Congressman
Garamendi also offered an amendment that would have expedited
the process of construction of Sites Reservoir. Instead, a
Republican substitute amendment was adopted that would prevent
the reservoir from going forward by prohibiting the Bureau of
Reclamation from working with the Sites Project Joint Powers
Authority, a regional consortium of local water agencies and
counties united to develop the project.
The scope of harmful provisions included in this
legislation is matched only by the number of necessary
provisions left out. If enacted, H.R. 1837 will not support the
co-equal goals, as stated in the bipartisan Sacramento-San
Joaquin Delta Reform Act of 2009, of first providing a more
reliable water supply for California, and second protecting,
restoring, and enhancing the overall quality of the California
Bay-Delta.
H.R. 1837 will not solve California's water problems
through a thoughtful, science-based, stakeholder-inclusive
process.
H.R. 1837 will not resolve the long-standing issues on the
San Joaquin River or provide flood protection and water supply
projects for farmers that were approved as a part of the San
Joaquin River Restoration Settlement Act.
H.R. 1837 will not sustain or rebuild the salmon
populations, which are the backbone of the west coast salmon
fishery and support fishermen, their livelihoods, and local
coastal communities.
H.R. 1837 would destroy local economies, livelihoods, and
the environment, all to benefit special interests, and set the
dangerous precedent of Federal law overturning state water law.
H.R. 1837 is an attempt to turn back the clock and must be
rejected.
Edward J. Markey.
Grace F. Napolitano.
Gregorio Kilili Camacho Sablan.
Peter A. DeFazio.
Raul M. Grijalva.
John Garamendi.
Dale E. Kildee.
Madeleine Z. Bordallo.
Rush Holt.