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.