[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3999 Introduced in House (IH)]

111th CONGRESS
  1st Session
                                H. R. 3999

  To direct the Commissioner of the Bureau of Reclamation to initiate 
 consultations under the Endangered Species Act of 1973 on the Central 
 Valley Project and the California State Water Project, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            November 3, 2009

Mr. Cardoza (for himself, Mr. Costa, and Mr. Radanovich) introduced the 
    following bill; which was referred to the Committee on Natural 
                               Resources

_______________________________________________________________________

                                 A BILL


 
  To direct the Commissioner of the Bureau of Reclamation to initiate 
 consultations under the Endangered Species Act of 1973 on the Central 
 Valley Project and the California State Water Project, and for other 
                               purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. RECONSULTATION ON CENTRAL VALLEY PROJECT AND THE CALIFORNIA 
              STATE WATER PROJECT.

    (a) Findings and Purpose.--
            (1) Findings.--The Congress finds and declares the 
        following:
                    (A) The United States owns and operates the 
                California Central Valley Project (CVP), originally 
                federally authorized under the Emergency Relief 
                Appropriation Act of 1935 (49 Stat. 115), and 
                reauthorized multiple times since--
                            (i) to provide for improved navigation, 
                        flow regulation and flood control, storage and 
                        delivery of water, hydropower production, 
                        construction of distribution systems to deliver 
                        water for the reclamation of arid and semiarid 
                        lands;
                            (ii) to protect, restore, and enhance fish, 
                        wildlife and associated habitats; and
                            (iii) to provide other beneficial uses.
                    (B) The State of California owns and operates the 
                California State Water Project (SWP), the Nation's 
                largest State-built water and power development and 
                conveyance system, which was authorized in 1960 by a 
                State referendum known as the Burns-Porter Act to 
                provide for water storage and delivery, hydropower 
                generation, flood control, recreation, water quality, 
                fish and wildlife enhancement, and other beneficial 
                uses.
                    (C) California is the world's 8th largest economy 
                and accounts for 13 percent of the Nation's economic 
                output. Water conveyed from northern to southern 
                California through the Bay Delta supports 25 percent of 
                the State's economy, is a source of drinking water for 
                over 22 million people, irrigates nearly 50 percent of 
                the Nation's fruits and vegetables, and supplies 
                numerous wildlife management and ecosystem restoration 
                projects.
                    (D) Several species listed under the Endangered 
                Species Act of 1973 (16 U.S.C. 1531 et seq.) and 
                potentially affected by the continued operation of the 
                CVP and SWP are experiencing historic or near-historic-
                recorded low population levels.
                    (E) A number of scientific investigations have been 
                initiated by State, Federal, and local agencies, 
                academia, and private interests to identify the causes 
                of these declines and recorded low population levels. 
                The vast majority of these studies have concluded that 
                these species are being impacted by a multitude of 
                environmental factors including predation, competition 
                from invasive species, entrainment by public and 
                private water diversions, legal and illegal harvest, 
                contamination emanating from urban and industrial 
                wastewater discharges, agricultural and urban runoff, 
                ocean conditions, and other environmental consequences 
                associated with climate change.
                    (F) Operations of the CVP and SWP are coordinated 
                to a large degree by the Coordinated Operations 
                Agreement between the United States and State of 
                California and implemented by Congress in 1986 (Public 
                Law 99-546).
                    (G) The existing and proposed operations of the CVP 
                and SWP are subject to consultation with the Unites 
                States Fish & Wildlife Service (FWS) and National 
                Marine Fisheries Service (NMFS) under section 7(a) of 
                the Endangered Species Act of 1973 (16 U.S.C. 1536(a)). 
                The current biological opinions were prepared 
                separately, under direction by the United States 
                District Court for the Eastern District of California, 
                and issued December 2008 and June 2009, respectively.
                    (H) The Central Valley Project Improvement Act of 
                1992 (Public Law 102-575) re-allocated on average over 
                1.6 million acre-feet of water annually away from water 
                users for environmental restoration, disproportionately 
                impacting rural, agricultural communities in the San 
                Joaquin Valley.
                    (I) The 2008 FWS and 2009 NMFS biological opinions 
                are projected to result in an additional 1,200,000 
                acre-feet of reductions annually, combined, on average.
                    (J) The State of California has been hard hit by 
                three critically dry years. Coupled with an economic 
                downturn, severely restricted water supply deliveries 
                from the CVP and SWP to water service users has 
                resulted in San Joaquin Valley cities and farm 
                communities suffering unemployment numbers upwards of 
                30 to 40 percent, with tens of thousands of jobs lost, 
                hundreds of thousands of acres fallowed, and other 
                environmental consequences.
                    (K) The current 2008 FWS and 2009 NMFS biological 
                opinions consider complex actions taking place in 
                highly altered environments but do not analyze the 
                relative impact of any other environmental factors 
                affecting the survival or recovery of the listed 
                species, though they do acknowledge that conditions and 
                activities not within the control of the CVP and SWP 
                are likely to place substantial stress upon them. 
                Further, as the 2008 FWS and 2009 NMFS biological 
                opinions were developed separate of one another, there 
                exist potential conflicts between them that may 
                adversely impact one listed species in an attempt to 
                protect another.
            (2) Purpose.--The purpose of this section is to resolve 
        these potential conflicts and to address the full range of 
        environmental factors that are likely jeopardizing the 
        continued existence or recovery of the listed species or 
        resulting in the destruction or adverse modification of their 
        critical habitat.
    (b) Reconsultation Required.--
            (1) In general.--Within 90 days after the date of enactment 
        of this Act, the Commissioner of the Bureau of Reclamation 
        shall initiate consultation with the Secretary of the Interior 
        and the Secretary of Commerce regarding the existing and 
        proposed operations of the Central Valley Project and the 
        California State Water Project, including as described in the 
        Operations Criteria and Plan for the Central Valley Project, 
        California, under section 7(a) of the Endangered Species Act of 
        1973 (16 U.S.C. 1536(a)).
            (2) Covered species.--The consultation shall include all 
        species listed under section 4(c) of such Act (16 U.S.C. 
        1533(c)) and all candidate species (as that term is used in 
        that Act) that are or will be affected by such proposed 
        operations.
            (3) Analysis of factors.--In conducting the consultation 
        required by this subsection, the Secretary of the Interior and 
        the Secretary of Commerce shall each--
                    (A) identify, analyze, and describe all factors 
                affecting the survival and recovery of the species 
                referred to in paragraph (2), other than operations of 
                the Central Valley Project and the California State 
                Water Project, including--
                            (i) municipal wastewater discharges;
                            (ii) urban and agricultural runoff;
                            (iii) industrial discharges;
                            (iv) major power plant water diversions and 
                        discharges;
                            (v) private water diversions within the 
                        Sacramento-San Joaquin River Delta; and
                            (vi) predation by invasive species, 
                        including striped bass;
                    (B) identify, analyze, and describe the effect of 
                invasive species and wastewater discharges on food 
                availability on the survival and recovery of the 
                species referred to in paragraph (2), including changes 
                in the composition or availability of prey; changes in 
                climate; and alterations in the species' critical 
                habitat;
                    (C) identify, analyze, and to the greatest extent 
                practicable quantify the relative effect of each factor 
                affecting the survival and recovery of the subject 
                species;
                    (D) rank each such factor in the order of its 
                relative effect on the likelihood of the survival and 
                recovery of the species referred to in paragraph (2); 
                and
                    (E) identify the specific, additional incremental 
                effect of existing and proposed discretionary 
                operations of the Central Valley Project and California 
                State Water Project on the survival and recovery of the 
                species referred to in paragraph (2), in relation to 
                all other factors affecting such survival and recovery.
    (c) Biological Opinion.--
            (1) In general.--The Secretary of the Interior and the 
        Secretary of Commerce shall issue a statement under section 
        7(b)(3) of the Endangered Species Act of 1973 (16 U.S.C. 
        1536(b)(3)) with respect to the existing and proposed 
        operations that are the subject of the consultation under 
        subsection (b) of this section.
            (2) Reasonable and prudent alternatives.--If the Secretary 
        of the Interior and the Secretary of Commerce include in the 
        statement reasonable and prudent alternatives to discretionary 
        project operations, they shall--
                    (A) specify and specifically describe in the 
                statement the increased species abundance they estimate 
                will result from such alternatives; and
                    (B) limit the measures required by the reasonable 
                and prudent alternative to no more than the 
                proportionate effects of those discretionary project 
                operations in relation to the factors referred to in 
                subsection (b)(3)(A) affecting the species referred to 
                in subsection (b)(2).
            (3) Other actions or measures.--The Secretary of the 
        Interior and the Secretary of Commerce shall identify and 
        recommend in the statement actions or measures that are not 
        within the jurisdiction of the Bureau of Reclamation, but are 
        necessary to address any factors referred to in subsection 
        (b)(3)(A) that are jeopardizing the species referred to in 
        subsection (b)(2) or adversely modifying their critical 
        habitat.
    (d) Deadline for Completion.--
            (1) In general.--The Commissioner and each such Secretary 
        shall conclude consultation under subsection (b) and issue a 
        statement under subsection (c) by the end of the 90-day period 
        on which the consultation under subsection (b) is initiated by 
        the Commissioner.
            (2) No extension.--Notwithstanding any other law, including 
        paragraphs (1) and (2) of section 7(b) of the Endangered 
        Species Act of 1973 (16 U.S.C. 1536(b)), the period under 
        paragraph (1) may not be extended.
    (e) Citizen Suits.--For purposes of section 11(g) of the of the 
Endangered Species Act of 1973 (16 U.S.C. 1540(g)), this section is 
deemed to be a provision of that Act.
    (f) Other Consultation and Biological Opinion Not Effective.--Any 
consultation conducted or statement issued before the date of enactment 
of this Act under section 7 of the Endangered Species Act of 1973 (16 
U.S.C. 1536) with respect to the existing and proposed operations 
referred to in subsection (b)(1) shall have no force or effect after 
the date of the issuance of the statement under this section.
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