[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
                                 CVPIA

=======================================================================

                           OVERSIGHT HEARING

                               before the

                    SUBCOMMITTEE ON WATER AND POWER

                                 of the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                                   on

  THE PROGRESS OF THE DEPARTMENT OF THE INTERIOR IN IMPLEMENTING THE 
                 CENTRAL VALLEY PROJECT IMPROVEMENT ACT

                               __________

                     MARCH 20, 1997--WASHINGTON, DC

                               __________

                           Serial No. 105-21

                               __________

           Printed for the use of the Committee on Resources


                                


                      U.S. GOVERNMENT PRINTING OFFICE
 40-738 CC                   WASHINGTON : 1997
------------------------------------------------------------------------------
                   For sale by the U.S. Government Printing Office
 Superintendent of Documents, Congressional Sales Office, Washington, DC 20402



                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona                SAM FARR, California
JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               NICK LAMPSON, Texas
JIM GIBBONS, Nevada                  RON KIND, Wisconsin
MICHAEL D. CRAPO, Idaho

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director
                                 ------                                

               Subcommittee on Water and Power Resources

                JOHN T. DOOLITTLE, California, Chairman
KEN CALVERT, California              PETER A. DeFAZIO, Oregon
RICHARD W. POMBO, California         GEORGE MILLER, California
HELEN CHENOWETH, Idaho               OWEN B. PICKETT, Virginia
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     SAM FARR, California
WILLIAM M. (MAC) THORNBERRY, Texas   ADAM SMITH, Washington
JOHN B. SHADEGG, Arizona             NICK LAMPSON, Texas
JOHN E. ENSIGN, Nevada               RON KIND, Wisconsin
ROBERT F. SMITH, Oregon              ---------- ----------
CHRIS CANNON, Utah                   ---------- ----------
MICHAEL D. CRAPO, Idaho
                  Robert Faber, Staff Director/Counsel
                    Valerie West, Professional Staff
                Christopher Stearns, Democratic Counsel



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held March 20, 1997......................................     1

Statement of Members:
    Doolittle, Hon. John T., a U.S. Representative from 
      California; and Chairman, Subcommittee on Water and Power..     1
        Prepared statement.......................................     3
    Miller, Hon. George, a U.S. Representative from California...     3
        Prepared statement.......................................     4

Statement of Witnesses:
    Garamendi, John, Deputy Secretary, Department of the Interior     5
        Prepared statement.......................................    26
    Hall, Dale, Assistant Regional Director, Ecological Services, 
      Pacific Region, U.S. Fish and Wildlife Service.............     5
    Patterson, Roger, Regional Director, Mid-Pacific Region, 
      Bureau of Reclamation, DOI.................................     5

Additional material supplied:
    Western Water Briefing.......................................    31



PROGRESS OF THE DEPARTMENT OF THE INTERIOR IN IMPLEMENTING THE CENTRAL 
                     VALLEY PROJECT IMPROVEMENT ACT

                              ----------                              



                        THURSDAY, MARCH 20, 1997

                  House of Representatives,
                   Subcommittee on Water and Power,
                                    Committee on Resources,
                                                    Washington, DC.
    The Subcommittee met, pursuant to call, at 2:10 p.m., in 
room 1334, Longworth House Office Building, Hon. John T. 
Doolittle (Chairman of the Subcommittee) presiding.

STATEMENT OF HON. JOHN T. DOOLITTLE, A U.S. REPRESENTATIVE FROM 
   CALIFORNIA; AND CHAIRMAN, SUBCOMMITTEE ON WATER AND POWER

    Mr. Doolittle. The Subcommittee on Water and Power will 
come to order. This Subcommittee is meeting today to hear 
testimony concerning progress of administrative solutions to 
implement the CVPIA. We are familiar with the five-minute rule 
and so forth.
    This is the third in a series of oversight hearings 
dedicated to progress reports by the Department of the Interior 
on its efforts to resolve the ongoing implementation problems 
under the Central Valley Project Improvement Act.
    Reclamation officials originally informed the Subcommittee 
in July of 1995 that administrative solutions would be 
implemented by October of that year. In August of that year we 
were informed that such solutions could be implemented by the 
end of that year.
    And then in September of '95, Deputy Secretary of the 
Interior Garamendi personally met with me and requested that I 
delay action on the CVP reform bill, which I had introduced in 
July of that year, for six months in order for the 
Administration to work out solutions. The Garamendi process 
resulted in more than 100 meetings between September of '95 and 
the end of March '96.
    A year ago, after all of those meetings and months of 
administrative discussions, Deputy Secretary Garamendi, at our 
April 18, 1996, oversight hearing on CVPIA implementation said 
that he could finally commit to a schedule.
    And that schedule called for, first, the release of draft 
administrative solutions and an administrative action schedule 
by mid-June '96; second, the release of the draft CVP 
Programmatic EIS in August of '96; and, third, the conclusion 
of the revised administrative solutions by September 16, '96.
    With great expectation, we asked for a progress report by 
the Deputy Secretary at our September 12, 1996, hearing on the 
administrative implementation of CVPIA. Unfortunately, he 
reported that the draft EIS was not released in August and, as 
yet, there has been no date announced as to when it will be 
forthcoming.
    As to the final proposed administrative actions and a 
schedule for their implementation, he reported that they would 
not quite make the September 16, '96, deadline but they would 
certainly be done by the end of the year. After nearly two 
years of sliding deadlines, claims that administrative 
solutions lie just around the corner, and requests to forbear 
on legislation, surely, I hope, he can now report he has 
developed most of the administrative solutions.
    After hearing from the various interest groups, however, 
there is a concern that the issues remain unresolved, and in 
many cases not even addressed. Drafts of position papers often 
simply restate the various alternatives or call for yet more 
meetings. This can hardly be called success or a resolution of 
the issues, or even a credible process for resolution.
    Additionally, I am concerned that the Department of the 
Interior has delayed the release of the Draft CVP Programmatic 
EIS, which Mr. Garamendi proposed a year ago would be released 
in August of '96. Even that date was a significant delay, since 
the CVPIA required completion of the EIS by October 1995. 
Interior is now 18 months beyond the legal deadline.
    Unfortunately, controversy also still surrounds annual 
water allocations. When the December 1994 Bay-Delta Accord was 
signed, many water users thought they had obtained certainty of 
supply for those three years and a commitment to an open 
process for implementation.
    There continues to be real concern about the role and 
responsiveness of the U.S. Fish and Wildlife Service in this 
process. There is a developing consensus among the 
stakeholders, and even concern expressed within Interior that 
the Service is not working to resolve the issues, that policy 
is being set by administrative staff rather than managers or 
elected officials, and that there is no real plan to correct 
these problems.
    Release of the anadromous fish restoration program has also 
been delayed. It, too, was supposed to be developed within 
three years of the October 1992 enactment of the CVPIA. The 
Department is now only saying that it will be released this 
spring.
    Against this backdrop is a curious commitment by the 
Department to insist on early renewal of contracts by the CVP 
contractors under the CVPIA. Interior seeks to use those 
renewals to introduce new conditions. Yet all of the underlying 
deadlines have been allowed to slip and the factual information 
on which to base the contracts has not been developed.
    It is amazing that the Department is willing to be so 
selective and I might add capricious about which deadlines it 
respects and which it does not. Mr. Secretary, I look forward 
to hearing from you today. I recognize the gentleman from 
California, Mr. Miller.
    [The statement of Mr. Doolittle follows:]
The Honorable John T. Doolittle, Chairman, a Representative in Congress 
                      for the State of California
    This is the third in a series of oversight hearings, dedicated to 
progress reports by the Department of the Interior on its efforts to 
resolve the ongoing implementation problems under the Central Valley 
Project Improvement Act (CVPIA).
    Reclamation officials originally informed the Subcommittee in July 
of 1995 that administrative solutions would be implemented by October 
1995. In August 1995, we were informed that such solutions could be 
implemented by the end of that year.
    Then, in September of 1995, Deputy Secretary of the Interior 
Garamendi personally met with me and requested that I delay action on 
the CVP reform bill, which I introduced in July of that year, for six 
months in order for the Administration to work out solutions. The 
Garamendi process resulted in more than 100 meetings between September 
1995 and the end of March 1996.
    A year ago, after all of those meetings and months of 
administrative discussions, Deputy Secretary Garamendi, at our April 
18, 1996, oversight hearing on CVPIA implementation said that he could 
finally commit to a schedule. That schedule called for:

        1. the release of draft administrative solutions and an 
        administrative action schedule by mid-June 1996,
        2. the release of the draft CVP Programmatic EIS in August 
        1996, and
        3. the conclusion of the revised administrative solutions by 
        September 16, 1996.
    With great expectation, we asked for a progress report by 
the Deputy Secretary at our September 12, 1996 hearing on the 
administrative implementation of the CVPIA. Unfortunately, he 
reported that the draft EIS was not released in August and, as 
yet, there has been no date announced as to when it will be 
forthcoming. As to the final proposed administrative actions 
and a schedule for their implementation, he reported that they 
wouldn't quite make the September 16, 1996 deadline but they 
would certainly be done by the end of the year. After nearly 
two years of sliding deadlines, claims that administrative 
solutions lie just around the corner, and requests to forbear 
on legislation--surely, he can now report he has developed most 
of the administrative solutions.
    After hearing from the various interest groups, however, 
there is a concern that the issues remain unresolved, and in 
many cases not even addressed. Drafts of position papers often 
simply restate the various alternatives or call for more 
meetings. This can hardly be called success . . . or a 
resolution of the issues . . . or even a credible process for 
resolution.
    Additionally, I am concerned that the Department of 
Interior has delayed the release of the Draft CVP Programmatic 
EIS, which Mr. Garamendi proposed a year ago would be released 
in August 1996. Even that date was a significant delay, since 
the CVPIA required completion of the EIS by October 1995. 
Interior is now 18 months beyond the legal deadline.
    Unfortunately, controversy also still surrounds annual 
water allocations. When the December 1994 Bay/Delta accord was 
signed, many water users thought they had obtained certainty of 
supply for those three years and a commitment to an open 
process for implementation.
    There continues to be real concern about the role and 
responsiveness of the Fish and Wildlife Service in this 
process. There is a developing consensus among the 
stakeholders, and even concern expressed within Interior, that:

        the Service is not working to resolve the issues,
        policy is being set by administrative staff rather than 
        managers or elected officials, and
        there is no real plan to correct these problems.
    Release of the anadromous fish restoration program has also 
been delayed. It, too, was supposed to be developed within 
three years of the October 1992 enactment of the CVPIA. The 
Department is now only saying that it will be released ``this 
spring.''
    Against this backdrop is a curious commitment by the 
Department to insist on early renewal of contracts by the CVP 
contractors under the CVPIA. Interior seeks to use those 
renewals to introduce new conditions. Yet all of the underlying 
deadlines have been allowed to slip and the factual information 
on which to base the contracts has not been developed. It is 
amazing that the Department is willing to be so selective and 
capricious about which deadlines it respects and which it 
doesn't.
    I look forward to hearing from the Deputy Secretary today.

  STATEMENT OF HON. GEORGE MILLER, A U.S. REPRESENTATIVE FROM 
                           CALIFORNIA

    Mr. Miller. Thank you. Thank you, Mr. Chairman, and thank 
you for holding these hearings and to our witnesses for 
agreeing to appear. I think it is important to remember that we 
passed the CVPIA nearly four and one-half years ago, we did not 
expect implementation overnight.
    This law is a major reformation of the largest reclamation 
project in history. We did our best to include reasonable 
provisions to give water users and others plenty of time to 
make adjustments to the new law. We tried to plan for problems 
that might delay implementation and we tried to give the 
Secretary the flexibility he needs so he could make the 
bureaucracy more responsive to the requirements of the new law.
    I am prepared to argue that CVPIA is in fact properly being 
implemented though probably at a slower pace than I might have 
hoped for several years ago. We did not anticipate the 
immediate legal challenges to the law. In fact, I think it was 
under legal challenge longer than this process has been engaged 
in.
    We may have underestimated the scientific complexities of 
some of the restoration goals. These things take time to 
resolve. While we need to continue to press for timely 
implementation of the law we should not set impossible 
deadlines or unreasonable goals. If we do that, we run the risk 
of shortchanging the resources we set out to protect when we 
passed the CVPIA.
    That would be detrimental to our resources, our citizens, 
and our State. As we implement CVPIA, we are modifying decades 
of harmful policy and affecting many major interests throughout 
the State. We now have a stakeholder process that is making 
progress and we have to give it reasonable amounts of time.
    If it is to find the guidelines and targets we cannot 
impose arbitrary drop dead dates that would provide a means for 
undercutting the law. We should continue to keep the pressure 
on through the hearings and stakeholder process. I also want to 
touch on the relationship between the CVPIA and the Bay-Delta 
CALFED process by noting that the success of Bay-Delta CALFED 
process will not happen if we cannot make CVPIA work.
    In fact, Bay-Delta exists because of CVPIA, not the other 
way around. There are some who would prefer to ignore CVPIA or 
try to frustrate its implementation offering the excuse that 
Bay-Delta will take care of everything. I categorically reject 
that notion.
    Bay-Delta is a process. The CVPIA is the law. The Secretary 
is required to proceed with the prompt and thorough 
implementation and I hope he will enjoy the support of all 
interested parties as he proceeds and I look forward to 
continuing this discussion. I think that these periodic 
hearings are helpful in terms of moving the process along and 
airing the grievances that various parties have from time to 
time. And Deputy Secretary Garamendi, we welcome you.
    [Press release issued by Honorable George Miller, a 
Representative in Congress from the State of California 
follows:]

             FOR IMMEDIATE RELEASE Thursday, March 20, 1997

Contact: Daniel Weiss
202/225-2095 James Snyder

                Miller Cautions Against Reversing CVPIA

    Rep. George Miller today urged colleagues and Interior 
Department officials alike to maintain headway in implementing 
the Central Valley Project Improvement Act, reclamation 
legislation that is helping to restore fish and wildlife to the 
watersheds, rivers, lakes and tributaries of the San Francisco 
Bay.
    In a hearing of the Resources Committee Subcommittee on 
Water and Power Resources regarding the status of CVPIA Miller 
acknowledged the complexity and controversy of the legislation, 
which he authored. But he warned that turning back the clock 
would reverse years of progress since the legislation was 
passed in 1992.
    ``As we implement the CVPIA, we are modifying decades of 
harmful policy and affecting many major interest throughout the 
state,'' Miller said. ``We now have a stakeholder process that 
is making progress, and we have to give it a reasonable amount 
of time.''
    The CVPIA, passed by Congress and signed into law in 
October 1992, mandates that 800,000 acre-feet of yield from the 
CVP be dedicated primarily to fish and wildlife restoration. A 
major program resulting from the legislation is the Bay-Delta 
process, which has had dramatic success in restoring fish to 
the Sacramento River Delta and the San Francisco Bay.
    ``There are some who would prefer to ignore the CVPIA or 
try to frustrate its implementation, offering the excuse that 
Bay-Delta will take care of everything,'' Miller warned. ``I 
categorically reject that notion. Bay-Delta is a process. The 
CVPIA is the law.''
    The Central Valley Project is a major Federal water project 
channeling water from the Sacramento and San Joaquin Rivers. It 
involves a system of 20 dams and reservoirs, canals and 
powerplants and provides irrigation water to 3 million acres of 
farmland and more than 2 million Californians. Its 
hydroelectric capacity is 2,000 megawatts.

    Mr. Doolittle. We have with us as really our primary 
witness, Deputy Secretary of the Interior, the Honorable John 
Garamendi. He is accompanied today by Mr. Roger Patterson, 
Regional Director of the Mid-Pacific Region, Bureau of 
Reclamation, and Mr. Dale Hall, who is Assistant Regional 
Director, Ecological Services, Pacific Region, U.S. Fish and 
Wildlife Service.
    Mr. Secretary, I know that you are the witness but as you 
and I have discussed we may have questions being commented upon 
by your associates so may I ask, please, all of you to rise and 
we will administer the oath and proceed.
    [Witnesses sworn.]
    Mr. Doolittle. Let the record reflect each answered in the 
affirmative. I think that you gentlemen, having been here many 
times before, are familiar with the five-minute rule, and with 
that, Mr. Secretary, we will invite you to offer your 
statement.

STATEMENT OF HON. JOHN GARAMENDI, DEPUTY SECRETARY, DEPARTMENT 
   OF THE INTERIOR; ACCOMPANIED BY ROGER PATTERSON, REGIONAL 
 DIRECTOR, MID-PACIFIC REGION, BUREAU OF RECLAMATION; AND DALE 
HALL, ASSISTANT REGIONAL DIRECTOR, ECOLOGICAL SERVICES, PACIFIC 
             REGION, U.S. FISH AND WILDLIFE SERVICE

    Mr. Garamendi. Thank you, Mr. Chairman and members of the 
Subcommittee. It is always a pleasure to be here at these 
periodic hearings to address our progress in the Central Valley 
Improvement Act. We are on the homestretch in addressing most 
of the issues that have arisen regarding the implementation of 
the CVPIA, and I certainly appreciate the continued interest 
and oversight.
    This afternoon I would like to briefly describe for you the 
progress we have made on many fronts this past year in 
implementing the provisions of the CVPIA. I will then summarize 
for you the status of the administrative proposals and close 
with a discussion of the relationship between the CVPIA and the 
CALFED Bay-Delta Program.
    The accomplishments of 1996 and 1997. The flood flows 
created by the massive January storms will enable the Bureau of 
Reclamation to provide full water supplies for agricultural and 
urban contractors, wildlife refuges, and the aquatic 
environment.
    At the same time, supplies will be available for 
accomplishing the fish restoration flows recommended by the 
Fish and Wildlife Service as part of an adaptive management 
program under the CVPIA. We are, with others, repairing the 
levees and working to reduce damage from future floods. At the 
same time, we are working to identify ways in which these 
actions can create opportunities for environmental restoration 
in the Bay-Delta.
    The Shasta Temperature Control Device, the first of its 
kind, has now been completed. On Friday, February 28, 1997, the 
Temperature Control Device was operated for the first time for 
cool water conservation. The TCD gives Reclamation the 
flexibility to provide cooler water temperatures in the upper 
Sacramento River and optimize the quality of water releases for 
downstream salmon without bypassing the powerplant.
    Reclamation, the Service, and other cooperating Federal 
agencies are reviewing a draft PEIS which is scheduled for 
release in June. This draft includes descriptions and impact 
analyses for the New Alternatives 3 and 4, which were developed 
based on public input and discussed at meetings held November 
21, 1996, and January 21, 1997. The New Alternatives 3 and 4 
both incorporate the most current flow objectives for CVP-
controlled and non-CVP streams based on the Service's AFRP.
    Reclamation finalized the 1996 Criteria for Evaluating 
Water Conservation plans and we used these new criteria to 
evaluate water districts' conservation plans. These criteria 
were first developed in '93 as a requirement of CVPIA. Sixty 
water districts already have plans that meet these criteria.
    In December an important step was taken in the process 
leading to the construction of a new fish screen for the Glenn 
Colus Irrigation District pump station at Hamilton City. 
Representatives from the Reclamation, the Service, and National 
Marine Fisheries Service, and State agencies agreed upon a 
proposed plan which will be identified and fully analyzed in 
the EIS EIR.
    It is anticipated that this will be released to the public 
in the spring, with public meetings scheduled during the spring 
and summer months. After consideration of the comments, a final 
decision on the alternative to be built will be made and, if 
all goes well, construction should begin in 1998.
    In addition, the Service expects to release the AFRP this 
spring. Release of the plan was originally delayed while the 
AFRP developed and refined guidelines and objectives for use of 
water management tools provided by the CVPIA. Development of 
these guidelines and objectives were highlighted in two public 
workshops in October.
    Although the final restoration plan is still being drafted, 
efforts to implement sections of the CVPIA that contribute to 
restoring natural production of anadromous fish are continuing 
as they have over the last several years. These include 
modifying CVP operations, managing Section 3406(b)(2) water, 
acquiring water, installing and operating the temperature 
control device at Shasta, restoring and replenishing spawning 
gravel, and screening unscreened and inadequately screened 
diversions.
    In addition, the CVPIA supported other important activities 
in 1996 that contributed to the restoration of anadromous fish. 
These include improving fish passage at Daguerre Point Dam on 
the Yuba River; restoring degraded riparian habitat along the 
lower reaches of Mill Creek; continuing development of 
comprehensive watershed management strategies for Deer and 
Butte Creeks; developing a restoration plan and proposing work 
for the lower Tuolumne River; evaluating intermittent streams 
as rearing habitat for chinook salmon; installing real-time 
flow monitoring systems in four creeks that support the 
production of spring-run chinook; and acquiring and protecting 
riparian habitat on the Sacramento River, the Big Chico, Mud 
creeks, and reducing siltation in Big Chico Creek.
    The first public announcement requesting participation in 
the Agricultural Waterfowl Incentive Program, under section 
3406(b)(22), was sent out in November '96. The program, managed 
by the Service in cooperation with Reclamation, provides 
incentives to eligible Central Valley and Delta farmers to 
flood their fields during appropriate periods of the year for 
the benefit of waterfowl.
    The intent of the program is to demonstrate the creation of 
waterfowl habitat and how it can be incorporated within the 
landowners' on-going agricultural operations. To date, 75 
applicants have submitted proposals to provide either wintering 
or breeding waterfowl habitat for a commitment of 1 to 5 years.
    The CVPIA administrative process. Even while Interior moved 
forward with these and other CVPIA programs during the course 
of the past year, we have continued to work closely with 
stakeholders and the interested public to identify the best 
ways to implement certain provisions of the CVPIA.
    Last summer we prepared and released for public comment 
draft proposals on twelve major areas of concern identified in 
public meetings on the CVPIA. As you will recall, these 12 
areas are the AFRP; management of the (b)(2) water; 
contracting; refuge supply; Restoration Fund; San Joaquin 
River; stakeholder process; Stanislaus River; transfers; 
Trinity River; urban reliability; and water conservation.
    We are in the process of finalizing all of those proposals 
with one exception, the proposals will be released in final 
form in the next couple of months. The only proposal which will 
take longer to finalize is the Stakeholder Process, which has 
been held up at the request of the stakeholders to give them 
time to consider their recommendations regarding this key 
element of the CVPIA implementation.
    Finally, and for about 30 second, we will finish this, 
relationship with the CVPIA and the long-term CALFED Bay-Delta 
Program. The solutions we are developing through the CVPIA 
administrative process represents what I have termed the zone 
of reasonableness, the common ground.
    While consensus has not yet been reached on all aspects of 
the CVPIA implementation, I firmly believe that it is now 
important to complete this process and build upon the 
achievements as we move forward into the CALFED Bay-Delta 
process. The key to water supply reliability as well as 
restoration of the Bay-Delta ecosystem is successful 
implementation of the Bay-Delta long-term program.
    We look forward to working closely with all stakeholders, 
the public, and members of this Committee in this endeavor. 
This concludes my statement. My colleagues and I will be happy 
to answer whatever questions you may have.
    [Statement of Mr. Garamendi may be found at end of 
hearing.]
    Mr. Doolittle. Thank you very much. Mr. Secretary, the 
Subcommittee just literally today received the Department's 
responses to the follow-up questions submitted after the 
September 12, '96, hearing which would make that over six 
months ago. Could we get your personal commitment that the 
Subcommittee can get a more timely response to the follow-up 
questions from this hearing?
    Mr. Garamendi. Your dismay is only equalled by my anger at 
the delay. You have such a response.
    Mr. Doolittle. Thank you. Section 4304(c)(3) of the CVPIA 
contains a provision to encourage early renewal of project 
water contracts. Affected contractors must enter into a binding 
agreement with the Secretary prior to October 1, 1997, to renew 
their contracts upon completion of the PEIS or pay an 
additional charge to the Restoration Fund of one and one-half 
times their annual Restoration Fund payment.
    I am wondering how informed decisions regarding contract 
renewal can be made without the benefit of the PEIS? Are you 
trying to find a way to implement the early renewal provisions 
that does not create a conflict which would disrupt your other 
implementation actions in the Bay-Delta process?
    Mr. Garamendi. The dilemma that you pose in your question 
is apparent to us. We have received many comments in that 
regard. There is a dilemma. The information for the long-term 
is not available. We are presently trying to work our way 
through that difficulty and we anticipate within the next month 
to 45 days that we will be able to resolve the apparent or the 
obvious problems that are faced by the contractors.
    Mr. Doolittle. Given the delay of the PEIS and the intent 
of the CVPIA to allow for early renewal as a policy matter, 
would it be equitable to extend early renewal deadline?
    Mr. Garamendi. That is one of the issues we are trying to 
figure out is exactly that if it is not only equitable but how 
we do it within the context of the law.
    Mr. Doolittle. And I am assuming that where the law says we 
have to do these other things out there and they just for one 
reason or another have not been done. I assume this could be 
put on the same plain with those. What do you think?
    Mr. Garamendi. I think that is what we are thinking about.
    Mr. Doolittle. OK. Could a binding agreement be developed 
to provide adequate legal protection for both Interior and the 
contractors without imposing a retroactive financial penalty?
    Mr. Garamendi. Like the previous two questions, this one 
speaks to the dilemma and what we are attempting to do right 
now is to work our way through this dilemma. I would almost 
prefer to take your questions as comments, perhaps your sense 
of direction. We do not have a specific answer. These three 
issues are exactly what we are wrestling with. How do we 
achieve an appropriate resolution of what is an apparent, well, 
an obvious dilemma.
    Mr. Doolittle. Will all of the papers, once released, 
actually propose solutions or will they propose further 
discussions among the stakeholders in certain instances--and I 
guess if they will, is it really fair to characterize these as 
solutions?
    Mr. Garamendi. It certainly is fair to characterize them as 
solutions, at least I will. Others may not. The papers are two 
different types. One type lays out definitions and definitively 
defines what actions will be taken. Another type lays out 
processes because in fact process is what is required to deal 
with the issue at hand.
    So depending on how you want to characterize them in my 
view they are both solutions although one set is a process 
answer because that is what is necessary. There is no 
definitive answer, for example, on some of the scientific 
issues.
    We have to move forward in an innovative or adaptive 
management process seeking to always improve the circumstances 
seeking to improve the habitat or the environmental issues 
without knowing at the outset exactly what the ultimate 
solution might be. So you will find both process and definitive 
categories in the papers.
    Mr. Doolittle. I guess I would just observe, I think it is 
long on process and short on definitiveness. We have got to 
have definitiveness to actually resolve some of these terrible 
problems.
    Mr. Garamendi. Well, I think you will understand more 
completely as the papers do come out the description I have 
just gone through.
    Mr. Doolittle. As the Administration moves forward with 
implementation of CVPIA, can you tell us how decisions will be 
coordinated with the decisions being made with respect to the 
anadromous fish restoration plan, with the Programmatic EIS, 
and with the CALFED process?
    Mr. Garamendi. I cannot in every detail answer that 
question. The AFRP is in itself a process and that process is 
affected by the actions of the Bay-Delta Program. The PEIS is 
not yet completed but that will provide some additional 
direction and parameters for all of these elements.
    One of the reasons we have not been able to keep the 
deadlines and time table that I gave you previously is that we 
are finding that we have found it necessary to integrate these 
three elements so that they are a complete description of each 
of the issues.
    We are engaged at this moment and have been for several 
months in extensive discussions with CALFED in an effort to 
integrate the AFRP and the PEIS issues with the CALFED program 
as it moves forward. What is obvious to us is that all of these 
things are operating or take in--all of these issues occur on 
the same river systems and so they cannot be isolated and our 
effort is to make sure that they are appropriately integrated.
    Mr. Doolittle. Mr. Miller, I recognize you.
    Mr. Miller. I will reserve my time.
    Mr. Doolittle. OK. If you are going to reserve your time, 
we will alternate over to Mr. Radanovich and then we will hit 
Mr. Dooley. You are recognized, Mr. Radanovich.
    Mr. Radanovich. Thank you, Mr. Chairman. Thank you, Mr. 
Secretary, for being here. I do have one question with regard 
to some of the issues--current issues that can be done while 
this project does not appear to be going anywhere. The friant 
water users have expressed concerns that the current 
Restoration Fund surcharges specifically for class two water 
used in direct groundwater recharge are in fact inhibiting 
groundwater recharge.
    There is some question about the $6.00 surcharge and the 
question I would be asking is would the Department be willing 
to reduce or eliminate the charge on water provided for 
district groundwater recharge purposes where there is 
demonstrable wildlife and wetlands benefit for basically 
eliminating or alleviating the $6.00 charge on groundwater or 
on paid water that goes into groundwater recharge?
    Mr. Garamendi. I am going to ask Roger Patterson to respond 
to your question.
    Mr. Patterson. That is an issue that we had in one of the 
papers that we put out and we suggested in fact that we would 
be willing to look at it is called the 215 water but it is the 
nonstorable water diverted in friant at times when it can be 
put in groundwater. And we indicated we would be willing to 
look at the price of the water including some reduction in 
price in order to make that happen. And so we are committed to 
fully investigate that.
    Mr. Radanovich. Can you associate that with some timetable 
that--when will this happen, I guess is what----
    Mr. Patterson. In '95 we had this situation arise. We 
worked with Fish and Wildlife and we in fact worked our way 
through '95. Our intent would be prior to the next operation 
season to be able to have that kind of guideline in place.
    The river is down to 500 CFS today so the opportunity to do 
that this year is essentially behind us. I talked with Dick 
Moss yesterday and I think he agreed with that. But it is an 
issue that we need to look at and we will look at it.
    Mr. Radanovich. Thanks. No other questions.
    Mr. Doolittle. Mr. Dooley is recognized.
    Mr. Dooley. Again, I would just like to follow up a little 
bit on Mr. Radanovich's question there is that even though it 
is beyond the 215 water though we really have a situation where 
the class two water when we have almost 100 percent of class 
two availability is that we have a situation where a lot of our 
local water districts are in a very difficult financial 
situation when we have these heavy runoffs.
    And, in fact, we have one irrigation district in my area 
where they are having to assess a $35 an acre surcharge, and 
that is on the acreage, in that district so that they can 
afford to take a lot of their class two supplies because the 
class two supplies that they are trying to recharge, you know 
they are not directly associated with any one user.
    And the magnitude of this when you look at our rental rates 
are $150, around $150, it is an additional 25 percent of a 
normal rental rate. It is very expensive. This is not to be 
taken lightly. And we almost have a situation where a lot of 
these districts which are trying to do the right thing in terms 
of recharging the aquifer and are also interested in moving 
forward in a way which you can provide some environmental 
benefits by using some of the recharge ponds and make them 
better water habitat are in a position where they cannot do 
that because of financial limitations that result from the 
CVPIA.
    So I would hope that in the consideration that it goes 
beyond just the 215 and would actually even look at the class 
two and I would be interested if that consideration is 
underway.
    Mr. Patterson. I would say, Mr. Dooley, that we will look 
at class two as well. In my view there is a difference in the 
type of water and it is going to be I think a little more 
difficult to get to where you are suggesting with class two but 
we will take a look at that. And to the degree that we are 
generating benefits of that particularly associated with Fish 
and Wildlife that we may have some latitude to work with the 
Service on that so we will look at it as well. I just want to 
raise the flag that it is a little more difficult.
    Mr. Dooley. I guess getting to a different issue and this 
deals with the provision in the CVPIA that requires interim 
renewal contracts until PEIS is done is that we currently have 
I think about 60 contracts that are going to be subject to 
renewal of an interim contract.
    The Department, when they negotiated the interim contracts 
a couple years ago, which was not nearly as smooth a process as 
it should have been, gave some assurances to the water 
districts that we would just basically be rolling over these 
interim contracts.
    Well, here we come when these interims have expired. They 
are subject to renewal and it appears that the Department of 
Interior is not going to be rolling these over as they had 
indicated but want to reengage in negotiations of those interim 
contracts with specific attention being given to the shortage 
provisions.
    I have to tell you that this raises a great deal of concern 
with myself and a lot of the water users in my area because we 
thought we were making progress on a number of issues, be it 
Bay-Delta or whatever else because of a greater degree of 
cooperation between the Department and the various users, and 
this is something that is running counter to that.
    And I guess my question to be a little bit specific, when 
we renegotiated the interim contracts we included language in 
the interim contracts as it dealt with shortages that reads if 
there is a reduction in total water supply available to the 
contractor during any year because of errors in physical 
operations of the project, drought or other physical or legal 
causes beyond the control of the contracting officer no 
liability shall accrue against the United States.
    Now from my reading of this, this gives--prevents any 
liability for the Secretary, and we have mistakes in operations 
by the Bureau, it gives no liability to the Secretary for 
natural events such as drought. It gives no liability to the 
Secretary for legal issues related to environmental 
regulations.
    My question is why do we need any modification in this? I 
mean the only shortage that can occur from my reading of this 
that is not covered under this language would be arbitrary or 
illegal actions by the Secretary and some of us ask what kind 
of contract do you have if you can allow the Secretary to take 
any action that he should want or she should want regardless of 
whether or not it is arbitrary or legal.
    Mr. Garamendi. Mr. Dooley, you have hit upon what has now 
become a very controversial and major issue in the Central 
Valley.
    Mr. Dooley. I would say I spoke to the Family Farm Alliance 
which included representatives from the entire western United 
States that have Bureau contracts and it is beyond the Central 
Valley.
    Mr. Garamendi. Indeed it is. Last summer when we told you 
that we intended to roll the contracts over we did that just 
days before a United States Supreme Court decision called the 
Windstar decision. That decision brought into question the 
clause that you just read to us.
    The solicitor in the Department of the Interior and other 
government lawyers are reviewing, and have been for the last 
several months, the implications of the Windstar decision given 
the language you just read. There are many who perceive that 
language taken with the Windstar decision to allow farmers to 
farm the American treasury rather than land. That would be of 
concern to all of us if that were to be the interpretation.
    There are others, and I think you have indicated who some 
of them are, that see it quite differently and hold a view very 
similar to what you have that it does not make any difference 
at all and life goes on and Windstar is not applicable. This is 
a significant debate of great interest to the United States 
Government and its treasury.
    We have not yet been able to resolve it. We hope to have a 
resolution amongst our lawyers in a very short order. If it is 
decided that this issue is of significance and requires change 
in the language in order to protect the American treasury then 
we will initiate negotiations very, very soon so there will be 
plenty of time to have a lengthy debate about this particular 
clause. We hope to have a decision made on this in very, very 
short order so we can get on with this. It is a very difficult, 
very complex, and potentially troublesome issue.
    Mr. Dooley. Mr. Chairman, can I follow up on that?
    Mr. Doolittle. Sure.
    Mr. Dooley. Mr. Garamendi, I would say as a farmer and 
yourself as a farmer there is a lot of us what would take 
exception of implying and I would hope the Department of the 
Interior is not implying that there are a lot of farmers out 
there that are interested in farming the treasury because they 
are looking for a redefinition of--or a continuation of--the 
shortage provision that was agreed to by both the U.S. 
Government, the Bureau, as well as the parties to those water 
districts.
    I think that is a little bit insulting. And, furthermore, 
there is no motivation for farmers in water districts who have 
to maintain an ongoing relationship with the Bureau to engage 
in legal actions which are certainly going to destroy it. But 
at the same part what you are implying is that you are asking 
for a water district to agree to a contract if you accept this 
premise of which there is no legal right or recourse for a 
shortage that occurs for issues even for errors in physical 
operations but the only thing that I can see that is not 
included in here would be something that could even be 
construed as arbitrary or illegal.
    And I guess that is difficult for me to accept that it is 
going to be the policy of this government and the policy of the 
Department that we would go so far as to say that there could 
be the opportunity for the Secretary to take an arbitrary and 
an illegal act to short a water contractor that could result in 
financial damages and that there be no recourse for that party 
that is harmed. And that appears as what you are implying that 
the Department is considering.
    Mr. Garamendi. Sir, that is not what I am implying at all. 
What we are concerned about or the lawyers are concerned about 
is the opportunity presented with the language you read taken 
together with the Windstar decision that the Federal 
Government, the Bureau of Reclamation for the first time ever 
could be sued for financial monetary damages.
    We have no problem with anybody suing to overturn a 
decision that we might make. I personally think that is a 
perfectly appropriate thing to do but to open the Federal 
treasury to a suit for the first time ever is of great concern 
to us. Now it may very well turn out that our concerns are not 
well founded and that is being wrestled with by our lawyers 
today.
    It may turn out that the lawyers believe it is 
extraordinarily well founded in which case we are going to have 
to work our way through this. I want to make it clear, however, 
that we do not intend to set up a situation assuming that we 
choose to seek a change here which is not yet clear, assuming 
that we do seek to make a change we would not want a situation 
in which there is no recourse by any of our contractors to seek 
redress in the courts.
    We think our actions should be subject to redress in the 
courts with immediate review by the court to overturn a 
decision that we make with regard to water allocation. 
Furthermore, I want to make this clear this is not only an 
issue for the Department of Interior's Bureau of Reclamation. 
The Windstar decision affects all government and it is an issue 
that is being reviewed by government lawyers in every agency 
because it affects all that we do in government.
    Mr. Doolittle. Mrs. Chenoweth is recognized.
    Mrs. Chenoweth. Thank you, Mr. Chairman. I am addressing my 
questions to either one, Mr. Secretary or Mr. Patterson. I do 
not understand what the legal significance of the Garamendi 
process proposals are. In asking that question what I mean is 
are these official Interior policy statements associated with a 
yet to be noticed rulemaking procedure or are these draft 
guidelines or where do they fit in the whole legal process?
    Mr. Garamendi. It is part of an official rulemaking 
process.
    Mrs. Chenoweth. It is part of--OK, and so they will yet be 
noticed and published in the----
    Mr. Garamendi. They have been.
    Mrs. Chenoweth. They have already been noticed?
    Mr. Garamendi. The notice was two years ago.
    Mrs. Chenoweth. Two years ago.
    Mr. Garamendi. At least a couple years ago we put out a 
notice of intent to do rulemaking and this process has been 
trying to build toward that.
    Mrs. Chenoweth. But I am talking about the entire Garamendi 
process has not been noticed in the Code of Federal 
Regulations. The intent, the notice of intent was published but 
the processes----
    Mr. Patterson. We did put out a notice of intent to do 
rulemaking. We view the final Garamendi papers as being 
essentially the Department's policy and guidance for 
implementation of those relevant provisions of the Act which 
will precede the actual draft rules and regulations that we 
will be putting out some time in the future.
    So in essence this paper would probably, when it is 
reformatted into the form of a rule, become a proposal to go 
through the formal APA rulemaking process. We put a notice out 
to that intent. I think we stated in our papers that that is 
our intent.
    Mrs. Chenoweth. OK. My concern is the legal basis for 
everything that has gone on in these 100 plus meetings on the 
Garamendi proposals, what legal foundation is there for the 
government's sake, for the stakeholders' sake. I am concerned. 
So, Mr. Chairman, I yield back the balance of my time to the 
Chairman. Thank you.
    Mr. Doolittle. Thank you. Mr. Farr is recognized.
    Mr. Farr. Thank you very much, Mr. Chairman. First of all, 
I want to commend you. You have got a tough role here. It is 
your State. You understand this problem. It goes way back and I 
just want to try to clarify some of the issues that you know I 
stand on with the Pajaro Valley situation and I appreciate your 
personal interest in it from visiting and understanding the 
Pajaro Valley.
    Let me just outline the facts because I think it ends up, 
Mr. Chairman, coming back to this Committee. In 1975 the U.S. 
Bureau of Reclamation entitled the Pajaro Valley to 19,900 acre 
feet of water from the Central Valley Project. The valley, 
Pajaro Valley, never claimed their entitlement because they did 
not need it until recently for several factors.
    One, the agriculture production in the valley has 
increased. Secondly, serious salt water intrusion has occurred 
on the coastal plain throughout California; Oxnard, Salinas 
Valley, Pajaro Valley; everywhere there is agriculture on the 
coast, we have salt water intrusion.
    This was recognized by the State. In fact, the Chairman of 
this Subcommittee, Mr. Doolittle, when you were in the State 
Senate you adopted a bill, I think it was authored by Senator 
Mello, to set up a special district, a water district, in the 
Pajaro Valley called the Pajaro Valley Water Management Agency.
    And you charged that agency with developing a comprehensive 
plan to stabilize the water supplies in an economically and 
environmentally acceptable manner. In order to do that now the 
valley must call upon the water that it has been entitled to in 
the CVP.
    However, under the legislation that we are discussing the 
Central Valley Project Improvement Actof 1992, no new contracts 
to receive water are permitted. And, I just have a couple of 
questions that sort of lead us to where we legally can go from 
here in both administrative action and perhaps congressional 
action.
    I am aware of correspondence from the Department of 
Interior's solicitor to you addressing the impact of the 
moratorium on the Pajaro Valley. Based on that correspondence, 
is it your impression that the CVPIA prohibits the Bureau of 
Reclamation from entering into contracts with the Pajaro Valley 
Water Management Agency for its 19,900 acre foot entitlement?
    Mr. Garamendi. Prior to the completion of the PEIS such a 
contract cannot be completed.
    Mr. Farr. Can the Bureau wheel non-CVP water through the 
Bureau facilities to the Pajaro Valley agency?
    Mr. Garamendi. Yes.
    Mr. Farr. Does the moratorium prohibit the Pajaro Valley 
Water Management Agency from acquiring CVP water from the 
existing CVP contract holder?
    Mr. Garamendi. With Roger's help I can answer your 
question. We all need Roger's help. We do indeed. The answer is 
no. It is possible assuming it is a transfer.
    Mr. Farr. A transfer is possible?
    Mr. Garamendi. Yes.
    Mr. Farr. Even with the moratorium?
    Mr. Garamendi. Yes.
    Mr. Farr. Then it leads us back to this Committee, I think, 
which is that the only way to really insure the contract with 
the Bureau for its entitlement is to enact the legislation that 
I have introduced. What we have tried to do is to consider if 
there is an administrative remedy that can solve this problem 
and from your answers you say that it is very difficult, which 
gets back to the bill that I have introduced to try to clear up 
this problem.
    This is a situation where the first law said you could have 
it, the second law said, no, we are going to put a moratorium 
on it. Now they need it, they've got to have it. They've got 
salt water intrusion. It is in nobody's interest not to be able 
to acquire it. How do we best do that?
    Mr. Garamendi. Before I get to the broad question you just 
asked, let me add to the first question an additional answer 
and that is that in addition to the completion of the PEIS 
there are some additional requirements that would have to be 
met before a new contract could be issued.
    I do not know what those are but I want you to be aware 
that it is more than just the PEIS. We can get you the 
specifics on that.
    Mr. Farr. Could the district meet those requirements? It is 
a small district.
    Mr. Garamendi. Go ahead, Roger.
    Mr. Patterson. Mr. Farr, it is not the requirements the 
district has to meet, it is requirements in CVP that say prior 
to issuing new contracts you have to complete the PEIS and then 
there are a number of other activities that we have to complete 
and those are going to take some substantial period of time 
which we have advised Pajaro Valley so there are several 
specific requirements.
    Mr. Garamendi. Now with regard to the question you raised 
about legislation. We think legislation would be ill advised. 
The requirements in the CVPIA we think should be met including 
the overall PEIS so as to understand the implication of 
additional contracts.
    Therefore, we think it unwise to move forward with specific 
legislation. I would like to suggest to you and----
    Mr. Farr. Well, what is the solution? Come on, we are all 
problem solvers here. How do we solve this problem? You just 
tell everybody that you've got salt water intrusion, your wells 
are drying up, you have got an incredibly successful 
agricultural area that is dependent on it and I am sorry, you 
and government cannot help us.
    Mr. Garamendi. I am glad you asked that question because I 
have an idea that I would like to present to you. There are 
40,000 acre feet of water 60 miles away from the Pajaro Valley 
that is available most any time you want it.
    Mr. Farr. Where is that?
    Mr. Garamendi. San Jose.
    Mr. Farr. The city of San Jose?
    Mr. Garamendi. The city of San Jose has 40,000 acre feet of 
water that they need to dispose of. It is reclaimed water. The 
water quality can be virtually whatever you would want and it 
is available. It seems to me that with the Santa Clara County--
get the right water district here, but the water district of 
Santa Clara Water District working together with the city of 
San Jose and the Pajaro Valley district that it is possible to 
achieve a solution to the Pajaro Valley issue as well as to 
other needs that may exist in the Gilroy, San Benito area. It 
would be very wise to pursue.
    Mr. Farr. I certainly will pursue it. I know my time has 
expired but if I--may I have it, Mr. Chairman? Thank you. We 
are doing the largest reclamation project in the United States 
at the mouth of the Salinas Valley with reclaimed water. I will 
tell you the difficulty is that you have to assess the farmers 
who have never had to be assessed in most of these coastal 
plains because we have never been part of a major water system. 
We just live off local water.
    Mr. Garamendi. So much so that you create a problem.
    Mr. Farr. The question really is, is that water going to be 
as cost effective--is all of that cost effective compared to 
accessing the CVP water and the delay? I am willing to look 
into it. Essentially what San Jose says, we will give you the 
water but you got to pay for it.
    Mr. Garamendi. I think it would be in everybody's interest 
to engage in a very intense discussion on this matter. The 
ability to pay is certainly a factor. The availability of water 
is real.
    Mr. Farr. Will your Department of Interior allow--I mean 
one of the ways to transport that water is to put it in the 
headwaters of the Pajaro River. Are you going to allow 
reclaimed water to go into a river system?
    Mr. Garamendi. It does in Sacramento. The answer to that 
question is unknown at this time but the potential is there for 
a solution and a very far-reaching solution both to San Jose's 
problem. They need to have the water used somewhere, and it is 
also water that does not have to come from the Central Valley 
and thereby reducing pressure on the Central Valley and it is 
also water that is available every year, every day of every 
year, as opposed to what some people are negotiating for which 
are interruptable supplies from the Central Valley.
    Mr. Farr. Can you pledge your Department's help with this 
Committee, Mr. Chairman? I do not want to speak for the Chair 
but I think that the reclaimed water is the way we need to go, 
but we have not yet developed a very sound program to do that. 
It is on a case by case basis, and very expensive. Essentially 
you are talking about rural areas that need the water and urban 
areas which have it, and it will be costly to match the two. We 
need some help.
    Mr. Garamendi. You certainly have my commitment. I have 
been engaged in this particular effort for several months now 
personally. With regard to the Department, the Bureau of 
Reclamation reorganized itself and redirected itself some four 
years ago and included in that redirection is the management of 
water and the use of reclaimed water.
    We are to the tune of some $35 million a year assisting 
districts throughout the west in reclaiming, reusing water. The 
city of San Jose is one of the entities that benefits from that 
program, not as much as they would like but nonetheless does 
benefit.
    Other areas particularly in southern California are doing 
exceptional work so, yes, we will work on it. It may be that 
Pajaro does not use the water directly but the water may be 
swapped in other areas, perhaps from the San Felipe project in 
some sort of a swap.
    And as you know the Pajaro district is considering a 
pipeline rather than use of the river so these are all open 
questions and ought to be explored as alternatives to a 
solution to a very difficult problem in the Pajaro Valley.
    Mr. Doolittle. Mr. Pombo is recognized.
    Mr. Pombo. I thank the Chairman, and I kept waiting for Mr. 
Farr to ask the next question and that is if they have a 
contract and the Bureau is not able to perform on that contract 
then it seems like they should perfect that contract by 
obtaining water from another source.
    And if this source is available, and as Mr. Garamendi has 
pointed out, the water is available on an ongoing basis maybe 
that is the way that the Bureau can perfect their contract.
    Mr. Garamendi. The Pajaro district does not have a contract 
but your point of assisting Pajaro and other districts in 
meeting its water needs is one of the purposes that the Bureau 
has within its service areas and the Pajaro district is within 
the service area. So while they do not have a contract we 
nonetheless will work with them to----
    Mr. Pombo. But they have an entitlement?
    Mr. Garamendi. I would not use the word entitlement here. I 
think that may get us into a difficult area.
    Mr. Pombo. They are authorized to stand in line? As long as 
they are standing in line behind Stockton East----
    Mr. Miller. The reason we are here today is we have 
oversubscribed the system. We authorized all kinds of people to 
get water except the water turned out to be rather finite and 
that is the problem. It is that we kept adding people and 
saying, oh, just go there and they will get you a contract, get 
you a contract. And the water turned out not to be there in 
those quantities. This million acre feet that we were always 
divvying up about 12 times a year.
    Mr. Pombo. Does that come off of my time or his?
    Mr. Miller. It is like the deficit. He will understand.
    Mr. Pombo. I thought you guys did not worry about that.
    Mr. Miller. We did not worry about either one of them.
    Mr. Pombo. It is definitely a new day. Mr. Garamendi, as we 
have worked through this process over the last couple of years 
there have been several other processes that have been out 
there, the CALFED process, trying to work our way through the 
EIS, local groups that have tried to come to a solution.
    Do you expect when you are done to actually have solutions? 
Is there--or is it going to have a few recommendations that do 
not really get us there?
    Mr. Garamendi. California is on the threshold of one of the 
most remarkable achievements in water policy perhaps in the 
last half century. The CVPIA is an important element in that 
process and we have already moved the CVPIA issues well 
forward. I think before you arrived I read through a partial 
list of what has been accomplished in the last year to 18 
months.
    And we have now positioned the Central Valley Project and 
will soon complete the positioning of that project to become a 
very critical partner in the Bay-Delta Program. The Bay-Delta 
Program has already met success in lining up about $1 billion 
of money from Proposition 204.
    The process because of the advancements we have made in the 
CVPIA together with the Bay-Delta and 204 has successfully 
persuaded the Administration and the President to propose $143 
million of funding this year plus another $143 million in the 
next two years, in each of the next two years.
    We are on the threshold of a remarkable advancement in 
water policy in California. The CVPIA issues are an integral 
part, an important part of that, and we are similarly as I said 
in my opening sentence on the threshold of completing our 
process. As I told the Chairman earlier, that will have two 
different types of answers. One is a definition of a set of 
issues or several sets of issues and the other will be a 
process that will move the issues forward because there is no 
definitive answer at this time in certain areas.
    Mr. Pombo. In terms of the accomplishments that you have 
listed here most of these were issues that were on the table 
long before this process started. They were issues that people 
were working on long before this process started, and one of 
the things that concerns me is that CALFED is running off in 
one direction and they feel making positive strives and that 
they are moving along.
    When you come in with your report is it going to say the 
same things that CALFED is working toward or is it--I mean how 
well coordinated are you with some of the other projects that 
are already in the process?
    Mr. Garamendi. Part of the reason why these issues were not 
resolved last year is that we were faced with a choice. We 
could easily have put out a paper and had met the deadlines 
that I had given you before but because of the significant 
progress that was being made with Bay-Delta as well as with 
these issues we felt important, in fact, critically important 
and well worth coming back here and humbly saying we did not 
meet our deadlines to delay the resolution that was possible 
then and to rework our papers to continue to bring people 
together to seek the common ground, the zone of reasonableness, 
while advancing and integrating our work with the Bay-Delta 
Program.
    That is exactly what we have done. Our work is designed to 
be integrated into the CALFED Bay-Delta process, each of the 
issues, the AFRP issue, the (b)(2) issues, the issues of 
conservation of transfers of water. In fact, all 12 issues are 
integrated and designed to be coordinated with the Bay-Delta. 
That is our goal and in fact that is one of the reasons why we 
have been delayed in completing the task.
    Mr. Pombo. Thank you, Mr. Chairman.
    Mr. Doolittle. Mr. Miller is recognized.
    Mr. Miller. Thank you, and I see that we have a vote on 
but, Mr. Chairman, I want to thank you again. You mentioned 
that the AFRP would be out this spring because there had been 
some discussion that maybe because of the rains and all this 
there is no reason to do this.
    It seems to me we ought to get it on when there is a lot of 
rain, get it out there and get it on the ground and let us let 
people start figuring out how we are going to go about with 
implementation with the rest of it so that we can expect this 
to come forward from the Service.
    Mr. Garamendi. Yes, and we agree with your logic.
    Mr. Miller. Finally, let me just say that I think the 
realization is starting to settle in that this is the only way 
we are going to resolve these issues is through this process. I 
think it is very important that the Chairman--that we have 
these periodic reviews with you and other parties to this 
discussion because to say that this is the only way is not to 
say that it is always going smoothly or it is going to 
according to--you know, that everybody feels that they are 
being treated equally but I think when we look at the 
complexity of the State and we look at the competing needs 
there really is no other process by which we can work our way 
through this and the fact is that as you have reported to us 
today some pieces of the jigsaw are being put in place and 
maybe not in the order in which we would all like them and some 
are more difficult than others but the fact is it is starting 
to happen and hopefully as we get past some of the easier 
issues we will get more focus on the more difficult issues.
    But I just think that all of the parties to this should be 
commended for really the energy that they have continued to 
expend and it has been expensive for a number of parties. It 
has been long. It has been difficult and all of the rest of it. 
But I think that again that this is the process that is going 
to take us to the fair implementation of CVPIA and Mr. Farr's 
questions to you sort of laid out the problem we have in the 
State that we have oversubscribed some of these systems if we 
do not move on to reclamation and we do not move on to some 
other components of an integrated water plan for our State.
    So I want to thank the Chair for holding the hearings. I 
think they are important. I think we do need an airing of these 
issues so that we can respond to our constituents and hopefully 
maybe from time to time to see if we could get this process 
moving a little bit faster because I think there is a real 
sense that people would like to get to the end of it but thank 
you very much.
    Mr. Doolittle. At this point, I do not think we are going 
to have many more questions, but I have at least a couple more. 
I think at this point we will recess the hearing and we will 
come back after the vote.
    [Recess.]
    Mr. Doolittle. I am sorry to have kept you all waiting. We 
had about four votes there and as fate would have it, it 
happened in the middle of the hearing. But let me proceed and 
ask you, Mr. Hall, a couple of questions. Could you tell us 
what position the Fish and Wildlife Service is taking in the 
CALFED negotiations with respect to the accounting of the 
800,000 acre feet?
    Mr. Hall. For the CALFED negotiations on the accounting?
    Mr. Doolittle. Yes, in other words, how are you going to 
account for the 800,000 acre feet specified in the CVPIA? This 
has been one of the major issues that remains unresolved.
    Mr. Hall. We have been working with the Bureau of 
Reclamation even as recently as last week getting model runs 
comparing, looking at the 28 to 34 period, trying to look at 
all the pieces of the act to see what is the proper way to 
account for the water.
    As you may know, we have been working forward on the basic 
policy issues of (b)(2) in general on the paper and had a 
separate work group of hydrologists trying to help us figure 
out the right way to account, how to interpret yield and those 
sorts of things.
    We are, in my view, in a home stretch and reaching--getting 
much closer to full agreement on how we would account for the 
water and how it will be done so that people will know, not 
just in this year but in any year that follows exactly how the 
process will work. And, frankly, I am very encouraged at the 
progress that we have made and hopefully we will include that 
in the final (b)(2) paper that we also want to get out 
relatively soon too.
    Mr. Doolittle. So, do you have a sense of when you will be 
able to finalize the 800,000 acre-foot issue?
    Mr. Hall. We have been--we need to get it out for 
applicable use during this water year so we are shooting, as 
Mr. Garamendi said earlier, to have all of the papers done but 
there are some that are of particular interest in the actual 
management of the project and we hope to get those out within 
at least a month or two because they are important for the 
operations of the '97 water year.
    Mr. Doolittle. And is it you who works with Mr. Patterson 
in having these conversations?
    Mr. Hall. Yes, sir.
    Mr. Doolittle. And you are based in Portland?
    Mr. Hall. I am in Portland.
    Mr. Doolittle. Do you think that the fact that you have 
such a large region where the headquarters for all of 
California ends up being in Portland is causing problems in the 
effective administration of Fish and Wildlife Service policies?
    Mr. Hall. That is a loaded question. Without question a 
very strenuous exercise on my part, my personal part, to spend 
the amount of time that I spend in California so that I can be 
there and I can be involved in these discussions primarily 
because we have not delegated down below my level any 
decisionmaking authority at the policy levels.
    We are keeping it where we can make sure that the 
management in Interior both the Bureau of Reclamation and the 
Fish and Wildlife Service are clear and on the same track so we 
can come out and make sure if there are questions we have an 
answer at the policy level.
    I do not know because we do not have any other system 
whether or not another one would be better but I do know that 
there is an awful lot of demand for my time in California that 
frankly is justified.
    Mr. Doolittle. Let me ask the Secretary to comment on that, 
if I might.
    Mr. Garamendi. We have been discussing within the 
Department how to address the extraordinary workload that 
exists in the west and particularly in California. There are 
different options available to us. We have very serious 
limiting factors that preclude us from taking advantage of many 
of those options.
    Our budget for the Fish and Wildlife Service is very tight 
and was even more severely restricted in the previous two years 
as a result of the discourses in this Congress, so the budget 
is part of the issue. There are other issues having to do with 
the allocation of management slots. There are very few SES 
slots in the Fish and Wildlife Service and that further 
restricts options that we might otherwise have available to us.
    We are going to have a new director for the Fish and 
Wildlife Service and one of the tasks that the director will 
address are the issues that you are raising now.
    Mr. Doolittle. Do you within Interior have it in your 
discretion to reorganize the Service and cause its office for 
California to be located in Sacramento?
    Mr. Garamendi. You mean the establishment of a new regional 
office?
    Mr. Doolittle. Yes.
    Mr. Garamendi. I believe we do have that power. We would 
have to work with the Budget Committee or the Appropriations 
Committee.
    Mr. Hall. If I might add to that. The Secretary does have 
that authority but I do believe that in the late '80's we were 
asked by the House, and I do not know whether or not it was 
this Committee or another, to run by this Committee or at that 
time it might have been Merchant Marine and Fisheries, any 
proposed changes for their review, but the authority does rest 
with Mr. Garamendi and Mr. Babbitt.
    Mr. Doolittle. I will mention this to get your response. We 
get a lot of input from the agricultural water users, the urban 
interests, even environmentalists, and people within the 
Interior Department are expressing the viewpoint that the 
Service seems out of control.
    I was interested in your comment just a minute ago, Mr. 
Hall, because the comments that we are getting are that low 
level personnel are--in effect--calling the shots and in some 
cases contradicting the policymakers. These comments suggest 
that there is no effective management and no clear plan for 
making real on the ground environmental improvements. Would you 
be willing to respond to those concerns?
    Mr. Hall. Yes, actually I would like to. The Fish and 
Wildlife Service as has been discussed here is an organization 
that is not large but has a large area and over the past ten 
years the mission and the demands upon the Fish and Wildlife 
Service have changed dramatically.
    We are now in a mode that some see us as a regulator. I 
personally do not like that sort of connotation for what we do. 
We certainly do have regulatory authority but 70 percent or 
more of the Fish and Wildlife resources in the United States 
are on private lands and if the mission of the Fish and 
Wildlife Service is to conserve and protect Fish and Wildlife 
resources for the future then our mission should be more in 
tune with working with those people so that they will 
voluntarily help us. And I think that they do want to and my 
experience is that they want to rather than being seen as or 
take the role of a regulator that comes in and says this is how 
it has to be done.
    I do not think that is conducive for good working 
relationships or good accomplishments for the Fish and Wildlife 
resources. And if our goal is the sustenance of the natural 
resources then we ought to be looking for partnerships instead 
of regulators and the regulated.
    Now the Fish and Wildlife Service has not delegated down, 
as I said before, any decisionmaking authority to anyone below 
me on the policies of the CVPIA. When our biologists go to a 
meeting I am not completely sure what happens because I am not 
there and the complaints I have heard are that it is when I 
leave town they are not following my directions, etc.
    I can neither accept that nor reject it because I am not 
there. But I would say that I hope that when our biologists go 
to a meeting that are not policy level people and do not make 
the decisions that they are respected for being at that level 
and in an open discussion they are afforded the same 
opportunity to give their views on what ought to happen in a 
collaborative process just as anyone else around the table is.
    One of the suspicions that I have is that if our biologists 
bring something up that it is taken as the position of the 
Service, this is where we are, we are not going anywhere, 
rather than that biologist being afforded the opportunity to 
express their views and be able to have it discussed and 
debated back and forth.
    I really do not know the answer of what happens when I am 
not there, but I think that often times our staff is labeled, 
labeled possibly based on historic operations or historic 
circumstances and I would like to ask--my wish would be that 
everyone afford the same opportunity to our biologists to try 
and change in the attitude and the way that we operate going 
from a comment or a regulator to a true partner and a solution 
finder and that takes a little time.
    Mr. Doolittle. So in those meetings where you are not there 
presumably then they are not making decisions, they are 
informational meetings, is that what you are saying?
    Mr. Hall. Yes, sir.
    Mr. Doolittle. Because if it were a decisionmaking meeting 
then I guess you would have to be there, is that right?
    Mr. Hall. What generally happens is staff from the Bureau 
and from the Service work with stakeholders or each other and 
they come up with this opinion or that opinion or a series of 
options and then at that point it should come to Roger and me 
and then we will listen to the discussion and make the policy 
decision.
    I can only suspect that either it is represented 
incorrectly their role at a meeting or that they are 
misunderstanding my position in trying to represent it that 
might cause this kind of misunderstanding because no one else 
has the authority to make those decisions.
    Mr. Doolittle. Do we have any kind of an office in 
Sacramento for the Fish and Wildlife Service?
    Mr. Hall. Oh, yes, sir.
    Mr. Doolittle. We do?
    Mr. Hall. Yes, sir.
    Mr. Doolittle. It is just not----
    Mr. Hall. It is a field operation.
    Mr. Doolittle. A field operation, OK. So then you are 
traveling down there frequently when you have these meetings?
    Mr. Hall. Yes, sir.
    Mr. Doolittle. Well, I hope you are able to make your 
philosophy take hold a little more. It seems that the other 
perception is fairly widespread. It sounds like we would be 
greatly benefited if you could be based--either you be based in 
Sacramento or have a new region where that person is able to 
interact with our State and with the other Federal officials in 
these matters. Do you know, Mr. Garamendi, are there plans to 
do something about this?
    Mr. Garamendi. Discussions have been underway within the 
Department about these matters. A decision has not been made.
    Mr. Doolittle. Does the Secretary of the Interior seem to 
appreciate the need to get this issue resolved, since it seems 
like it will be a number of years into the future when we will 
be having extensive consultations between the different 
agencies within Interior?
    Mr. Garamendi. Well, he is certainly aware that California 
is the single most intensely--the State with the single most 
intense issues for the Fish and Wildlife Service. He is aware 
of that. He is searching and deliberating as to what would be 
the best solution for that.
    And, as I said earlier, the new director when appointed and 
confirmed will be addressing this series of issues that you 
have raised here today.
    Mr. Doolittle. Do you expect that event to happen within 
the next month?
    Mr. Garamendi. Oh, it would be very, very wrong for me to 
place any deadline on any presidential action with regard to 
appointments. I have already suffered greatly before you today. 
Things that presumably I have more control of.
    Mr. Doolittle. Well, let me ask you this. The Supreme Court 
opinion yesterday found that individuals alleging economic 
interest could challenge a biological opinion. What impact do 
you folks anticipate that may have on the way these issues are 
handled in the future?
    Mr. Garamendi. We really do not see a great impact as a 
result of that decision. It may lead to additional lawsuits and 
whatever that outcome might be. It will probably lead to the 
employment of more lawyers by both sides. And our argument was 
very narrowly based, the Department of Interior argument was 
very narrowly based when we presented it to the Supreme Court.
    The bottom line, there is not a great impact. It will 
probably lead to additional lawsuits from others that 
previously were denied access to the courts.
    Mr. Hall. May I add something?
    I would like to add something to that because I am not sure 
that you and the Committee often understand that when a court 
case comes about and we are sued for one reason or another 
which this opinion could allow additional suits and open it up 
for that, that there is a tremendous amount of staff time of 
our biological staff and our on-the-ground operations staff 
that has to be dedicated to building the court case and the 
biological justifications for what we have done and all that 
when we have to go to court.
    Lawsuits drain more of our capability to be present and 
involved in issues that solve problems than any other factor 
that I think we have going starting with the Front for Animals 
court settlement for listing species and going to cases like 
this. It is often not understood that when a court case comes 
in like that we have to pull our knowledgeable biologists off 
of what they are doing so that they can help support the 
Department of Justice in building the government's case and it 
is a tremendous drain.
    Mr. Doolittle. Mr. Garamendi, we have heard that you would 
have two of those papers on those 12 issue areas coming out 
today. Is there such a plan?
    Mr. Garamendi. Mr. Chairman, the fortunate hiatus in this 
hearing allowed us sufficient time to have brought to this 
hearing two issue papers. Had there been eight votes instead of 
four, who knows what we could have accomplished.
    The issue paper on the Trinity River and the issue paper on 
the water conservation are prepared and they have been 
presented to your staff and are available. Thank you for giving 
us this time.
    Mr. Doolittle. Well, that is a positive development. Let me 
ask--since I have not seen the issue papers--do these actually 
resolve anything? Are there solutions in there or are we just 
having further discussions?
    Mr. Garamendi. These two papers are what I would categorize 
as definitive papers rather than process papers. There is some 
process in the Trinity which because of the nature of the issue 
it requires that a process go--it is also definitive. The 
conservation paper is definitive also.
    These papers, if we had issued them six months ago would 
have been highly controversial given our position and level of 
knowledge at that time. Because of the extra time that we took 
both of these papers are going to be relatively 
noncontroversial. The common ground was found in both cases and 
so we were pleased with the effort of all of the stakeholders 
in moving from their strongly held previous positions to ones 
that I think are reflected in these papers.
    Mr. Doolittle. Well, I appreciate very much the testimony 
that you gentlemen have offered. Obviously, we will have 
continued oversight from time to time. I know it has been a 
very difficult set of issues to get resolved. I am somewhat 
dismayed by the number of months that we have gone beyond these 
deadlines.
    Let me ask you, Mr. Garamendi, you indicated I think in 
June the PEIS is coming out. How firm in your mind is that 
date?
    Mr. Garamendi. It is in everybody's interest including ours 
to meet those dates or to complete the process at that period. 
There are other things that we must get on to this year. The 
Bay-Delta issues become increasingly important as the days roll 
by.
    The action of the Congress on the appropriation, the 
additional work that needs to be done on the preferred 
alternative for the Bay-Delta, those become dominating issues 
and in some respects depend upon our completion of these 
remaining pieces of work.
    And for that reason we are heavily motivated to complete 
the tasks to get them out of the way and we are also finding 
that the stakeholders recognizing that it is time to reach a 
conclusion are more willing and seem to be more willing to come 
to the zone of reasonableness. So I think we are going to be 
able to meet those deadlines.
    Mr. Doolittle. OK. Well, I thank you for your testimony 
this afternoon and I am sure we will have a few additional 
questions and accept your personal commitment to get us a more 
timely response than the last time.
    Mr. Garamendi. Mr. Chairman, if I might interrupt for just 
a second. I asked your staff during the break to let me know 
personally if we are not responding in a timeframe satisfactory 
from your point of view.
    Mr. Doolittle. I very much appreciate that. That will be 
quite helpful. We will hold the record open for the response to 
come in and with that the hearing is adjourned.
    [Whereupon, at 4:40 p.m., the Subcommittee was adjourned; 
and the following was submitted for the record:]

[GRAPHIC] [TIFF OMITTED] T0738.001

[GRAPHIC] [TIFF OMITTED] T0738.002

[GRAPHIC] [TIFF OMITTED] T0738.003

[GRAPHIC] [TIFF OMITTED] T0738.004

[GRAPHIC] [TIFF OMITTED] T0738.005

[GRAPHIC] [TIFF OMITTED] T0738.006

[GRAPHIC] [TIFF OMITTED] T0738.007

                                  