I 111th CONGRESS 1st Session H. R. 75 IN THE HOUSE OF REPRESENTATIVES January 6, 2009 Mr. Issa introduced the following bill; which was referred to the Committee on Natural Resources, and in addition to the Committee on Armed Services, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned A BILL To authorize the Secretary of the Interior to construct facilities to provide water for irrigation, municipal, domestic, military, and other uses from the Santa Margarita River, California, and for other purposes.

1.

Definitions

In this Act: (1)

District

The term District means the Fallbrook Public Utility District, San Diego County, California. (2)

Project

The term Project means the impoundment, recharge, treatment, and other facilities the construction, operation, watershed management, and maintenance of which is authorized under section 2. (3)

Secretary

The term Secretary means the Secretary of the Interior.

2.

Authorization for construction of Santa Margarita River Project

(a)

Authorization

The Secretary, acting pursuant to Federal reclamation law (the Act of June 17, 1902 (32 Stat. 388, chapter 1093)), and Acts supplemental to and amendatory of that Act (43 U.S.C. 371 et seq.), to the extent that law is not inconsistent with this Act, may construct, operate, and maintain the Project substantially in accordance with the final feasibility report and environmental reviews for the Project and this Act. (b)

Conditions

The Secretary may construct the Project only after the Secretary determines that the following conditions have occurred: (1)

Contract

(A)The District and the Secretary of the Navy have entered into contracts under subsections (c)(2) and (e) of section 9 of the Reclamation Project Act of 1939 (43 U.S.C. 485h) to repay to the United States equitable and appropriate portions, as determined by the Secretary, of the actual costs of constructing, operating, and maintaining the Project. (B)As an alternative to a repayment contract with the Secretary of the Navy described in subparagraph (A), the Secretary may allow the Secretary of the Navy to satisfy all or a portion of the repayment obligation for construction of the Project on the payment of the share of the Secretary of the Navy prior to the initiation of construction, subject to a final cost allocation as described in section 3. (2)

Permits

The officer or agency of the State of California authorized by law to grant permits for the appropriation of water has granted the permits to the Bureau of Reclamation for the benefit of the Secretary of the Navy and the District as permittees for rights to the use of water for storage and diversion as provided in this Act, including approval of all requisite changes in points of diversion and storage, and purposes and places of use. (3)

District agreements

(A)The District has agreed— (i)to not assert against the United States any prior appropriative right the District may have to water in excess of the quantity deliverable to the District under this Act; and (ii)to share in the use of the waters impounded by the Project on the basis of equal priority and in accordance with the ratio prescribed in section 4(b). (B)The agreement and waiver under subparagraph (A) and the changes in points of diversion and storage under paragraph (2)— (i)shall become effective and binding only when the Project has been completed and put into operation; and (ii)may be varied by agreement between the District and the Secretary of the Navy. (4)

Feasibility studies

The Secretary has determined that the Project has completed applicable economic, environmental, and engineering feasibility studies.

3.

Costs

(a)

In general

As determined by a final cost allocation after completion of the construction of the Project, the Secretary of the Navy shall be responsible to pay upfront or repay to the Secretary only that portion of the construction, operation, and maintenance costs of the Project that the Secretary and the Secretary of the Navy determine reflects the extent to which the Department of the Navy benefits from the Project. (b)

Other contracts

Notwithstanding subsection (a), the Secretary may enter into a contract with the Secretary of the Navy for the impoundment, storage, treatment, and carriage of prior rights water for domestic, municipal, fish and wildlife, industrial, and other beneficial purposes using Project facilities.

4.

Operation; yield allotment; delivery

(a)

Operation

The Secretary, the District, or a third party (consistent with section 6) may operate the Project, subject to a memorandum of agreement between the Secretary, the Secretary of the Navy, and the District and under regulations satisfactory to the Secretary of the Navy with respect to the share of the Project of the Department of the Navy. (b)

Yield allotment

Except as otherwise agreed between the parties, the Secretary of the Navy and the District shall participate in the Project yield on the basis of equal priority and in accordance with the following ratio: (1)60 percent of the yield of the Project is allotted to the Secretary of the Navy. (2)40 percent of the yield of the Project is allotted to the District. (c)

Contracts for delivery of excess water

(1)

Excess water available to other persons

If the Secretary of the Navy certifies to the official agreed on to administer the Project that the Department of the Navy does not have immediate need for any portion of the 60 percent of the yield of the Project allotted to the Secretary of the Navy under subsection (b), the official may enter into temporary contracts for the sale and delivery of the excess water. (2)

First right for excess water

The first right to excess water made available under paragraph (1) shall be given the District, if otherwise consistent with the laws of the State of California. (3)

Condition of contracts

Each contract entered into under paragraph (1) for the sale and delivery of excess water shall include a condition that the Secretary of the Navy has the right to demand the water, without charge and without obligation on the part of the United States, after 30 days notice. (4)

Modification of rights and obligations

The rights and obligations of the United States and the District regarding the ratio, amounts, definition of Project yield, and payment for excess water may be modified by an agreement between the parties. (d)

Consideration

(1)

Deposit of funds

(A)

In general

Amounts paid to the United States under a contract entered into under subsection (c) shall be— (i)deposited in the special account established for the Department of the Navy under section 2667(e)(1) of title 10, United States Code; and (ii)shall be available for the purposes specified in section 2667(e)(1)(C) of that title. (B)

Exception

Section 2667(e)(1)(D) of title 10, United States Code, shall not apply to amounts deposited in the special account pursuant to this subsection. (2)

In-kind consideration

In lieu of monetary consideration under paragraph (1), or in addition to monetary consideration, the Secretary of the Navy may accept in-kind consideration in a form and quantity that is acceptable to the Secretary of the Navy, including— (A)maintenance, protection, alteration, repair, improvement, or restoration (including environmental restoration) of property or facilities of the Department of the Navy; (B)construction of new facilities for the Department of the Navy; (C)provision of facilities for use by the Department of the Navy; (D)facilities operation support for the Department of the Navy; and (E)provision of such other services as the Secretary of the Navy considers appropriate. (3)

Relation to other laws

Sections 2662 and 2802 of title 10, United States Code, shall not apply to any new facilities the construction of which is accepted as in-kind consideration under this subsection. (4)

Congressional notification

If the in-kind consideration proposed to be provided under a contract to be entered into under subsection (c) has a value in excess of $500,000, the contract may not be entered into until the earlier of— (A)the end of the 30-day period beginning on the date on which the Secretary of the Navy submits to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives a report describing the contract and the form and quantity of the in-kind consideration; or (B)the end of the 14-day period beginning on the date on which a copy of the report referred to in subparagraph (A) is provided in an electronic medium pursuant to section 480 of title 10, United States Code.

5.

Repayment obligation of the district

(a)

Determination

(1)

In general

Except as otherwise provided in this subsection, the general repayment obligation of the District shall be determined by the Secretary consistent with subsections (c)(2) and (e) of section 9 of the Reclamation Project Act of 1939 (43 U.S.C. 485h) to repay to the United States equitable and appropriate portions, as determined by the Secretary, of the actual costs of constructing, operating, and maintaining the Project. (2)

Groundwater

For purposes of calculating interest and determining the time when the repayment obligation of the District to the United States commences, the pumping and treatment of groundwater from the Project shall be deemed equivalent to the first use of water from a water storage project. (3)

Contracts for delivery of excess water

There shall be no repayment obligation under this section for water delivered to the District under a contract described in section 4(c). (b)

Modification of rights and obligation by agreement

The rights and obligations of the United States and the District regarding the repayment obligation of the District may be modified by an agreement between the parties.

6.

Transfer of care, operation, and maintenance

(a)

In general

The Secretary may transfer to the District, or a mutually agreed upon third party, the care, operation, and maintenance of the Project under conditions that are— (1)satisfactory to the Secretary and the District; and (2)with respect to the portion of the Project that is located within the boundaries of Camp Pendleton, satisfactory to the Secretary, the District, and the Secretary of the Navy. (b)

Equitable credit

(1)

In general

In the event of a transfer under subsection (a), the District shall be entitled to an equitable credit for the costs associated with the proportionate share of the Secretary of the operation and maintenance of the Project. (2)

Application

The amount of costs described in paragraph (1) shall be applied against the indebtedness of the District to the United States.

7.

Scope of Act

(a)

In general

Except as otherwise provided in this section, for the purpose of this Act, the laws of the State of California shall apply to the rights of the United States pertaining to the use of water under this Act. (b)

Limitations

Nothing in this Act— (1)provides a grant or a relinquishment by the United States of any rights to the use of water that the United States acquired according to the laws of the State of California, either as a result of the acquisition of the land comprising Camp Joseph H. Pendleton and adjoining naval installations, and the rights to the use of water as a part of that acquisition, or through actual use or prescription or both since the date of that acquisition, if any; (2)creates any legal obligation to store any water in the Project, to the use of which the United States has those rights; (3)requires the division under this Act of water to which the United States has those rights; or (4)constitutes a recognition of, or an admission by the United States that, the District has any rights to the use of water in the Santa Margarita River, which rights, if any, exist only by virtue of the laws of the State of California.

8.

Limitations on operation and administration

Unless otherwise agreed by the Secretary of the Navy, the Project— (1)shall be operated in a manner which allows the free passage of all of the water to the use of which the United States is entitled according to the laws of the State of California either as a result of the acquisition of the land comprising Camp Joseph H. Pendleton and adjoining naval installations, and the rights to the use of water as a part of those acquisitions, or through actual use or prescription, or both, since the date of that acquisition, if any; and (2)shall not be administered or operated in any way that will impair or deplete the quantities of water the use of which the United States would be entitled under the laws of the State of California had the Project not been built.

9.

Reports to Congress

Not later than 2 years after the date of the enactment of this Act and periodically thereafter, the Secretary and the Secretary of the Navy shall each submit to the appropriate committees of Congress reports that describe whether the conditions specified in section 2(b) have been met and if so, the manner in which the conditions were met.

10.

Authorization of appropriations

There is authorized to be appropriated to carry out this Act— (1)$60,000,000, as adjusted to reflect the engineering costs indices for the construction cost of the Project; and (2)such sums as are necessary to operate and maintain the Project.

11.

Sunset

The authority of the Secretary to complete construction of the Project shall terminate on the date that is 10 years after the date of the enactment of this Act.