[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
THE SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
=======================================================================
OVERSIGHT HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
__________
Thursday, September 21, 2006
__________
Serial No. 109-63
__________
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Henry Brown, Jr., South Carolina Mark Udall, Colorado
Thelma Drake, Virginia Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
SUBCOMMITTEE ON WATER AND POWER
GEORGE P. RADANOVICH, California, Chairman
GRACE F. NAPOLITANO, California, Ranking Democrat Member
Ken Calvert, California Raul M. Grijalva, Arizona
Barbara Cubin, Wyoming Jim Costa, California
Greg Walden, Oregon George Miller, California
Thomas G. Tancredo, Colorado Mark Udall, Colorado
J.D. Hayworth, Arizona Dennis A. Cardoza, California
Stevan Pearce, New Mexico Vacancy
Cathy McMorris, Washington Vacancy
Vice Chair Nick J. Rahall II, West Virginia,
Louie Gohmert, Texas ex officio
Vacancy
Richard W. Pombo, California, ex
officio
------
CONTENTS
----------
Page
Hearing held on Thursday, September 21, 2006..................... 1
Statement of Members:
Cardoza, Hon. Dennis, a Representative in Congress from the
State of California........................................ 7
Letter submitted for the record.......................... 9
Costa, Hon. Jim, a Representative in Congress from the State
of California.............................................. 10
Letter submitted for the record.......................... 12
Miller, Hon. George, a Representative in Congress from the
State of California........................................ 4
Napolitano, Hon. Grace F., a Representative in Congress from
the State of California.................................... 3
Nunes, Hon. Devin, a Representative in Congress from the
State of California........................................ 5
Letter submitted for the record.......................... 6
Pombo, Hon. Richard W., a Representative in Congress from the
State of California........................................ 3
Radanovich, Hon. George P., a Representative in Congress from
the State of California.................................... 1
Prepared statement of.................................... 2
Statement of Witnesses:
Birmingham, Thomas, General Manager/General Counsel,
Westlands Water District, Fresno, California............... 69
Prepared statement of.................................... 71
Candee, Hamilton, Senior Attorney, Co-Director, Western Water
Project, Natural Resources Defense Council, San Francisco,
California................................................. 24
Prepared statement of.................................... 27
Response to questions submitted for the record........... 29
Chedester, Steve, Executive Director, San Joaquin River
Exchange Contractors Water Authority, Los Banos, California 85
Prepared statement of.................................... 87
Response to questions submitted for the record........... 90
Chrisman, Hon. Mike, Secretary for Resources, California
Resources Agency, Sacramento, California................... 37
Prepared statement of.................................... 39
Peltier, Jason, Principal Deputy Assistant Secretary for
Water and Science, U.S. Department of the Interior,
Washington, D.C............................................ 31
Prepared statement of.................................... 33
Response to questions submitted for the record........... 35
Robbins, Ken, General Counsel, Merced Irrigation District,
Merced, California......................................... 79
Prepared statement of.................................... 81
Response to questions submitted for the record........... 77
Short, Allen, General Manager, Modesto Irrigation District,
and Coordinator, San Joaquin Tributaries Association,
Modesto, California........................................ 75
Prepared statement of.................................... 76
Response to questions submitted for the record........... 77
Skinner, Lynn, Owner, Wolfsen Farms, Los Banos, California... 94
Prepared statement of.................................... 96
Response to questions submitted for the record........... 90
Upton, Kole, Chairman, Friant Water Users Authority,
Chowchilla, California..................................... 13
Prepared statement of.................................... 15
Response to questions submitted for the record........... 21
Wolk, Hon. Lois G., Chair, Committee on Water, Parks and
Wildlife, California State Assembly, Sacramento, California 41
Prepared statement of.................................... 43
Response to questions submitted for the record........... 45
OVERSIGHT HEARING ON THE SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
----------
Thursday, September 21, 2006
U.S. House of Representatives
Subcommittee on Water and Power
Committee on Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 10:09 a.m. in
Room 1324, Longworth House Office Building, Hon. George
Radanovich [Chairman of the Subcommittee] presiding.
Present: Representatives Radanovich, Napolitano, Pombo,
Costa, Miller and Cardoza.
STATEMENT OF THE HON. GEORGE P. RADANOVICH, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Radanovich. Good morning, and welcome to the
Subcommittee on Water and Power. It will now come to order.
Today's hearing is a crucial step toward resolving a long
and bitter war in the San Joaquin Valley. For 18 years a legal
battle to restore a salmon fishery on the San Joaquin River has
been fought in the courts. Hard-working family farmers whose
future depends on the dam have been left in doubt, and fish
restoration is nothing more than a pipe dream for other
Californians.
In the meantime, many of us were worried that a judicial
decision would be controversial and be appealed to the Supreme
Court, costing millions of dollars more, and leaving the issue
unresolved for many more years. For that reason, Senator
Feinstein and I joined together last year to urge the parties
to take their fight out of the courtroom and back to the
negotiating table.
Friant Water Users Authority, the NRDC, and the U.S.
Government began to sit down in good faith to try to end years
of stalemate. The result is what we have here before us today.
The San Joaquin River Restoration Settlement is an
unprecedented effort to restore a dead fishery and give
certainty to many Friant farmers.
Now that much of the hard work has been done in California,
it is up to us in Congress to bring the settlement across the
finish line and provide the necessary funding for the
improvements. We have a lot of work to do, and this hearing
today is part of our recent efforts to make this settlement a
reality.
As we will see, the settlement has many benefits, but it
may also have some unintended consequences. That is why we have
asked some of the best and the brightest to speak here today
about the need to address third-party concerns. And I am
confident that we can resolve these concerns if we all continue
to work together in good faith, as we have for the last 13
months.
As we march toward our objective, it is important not to
repeat Congress's past mistakes of enacting vague legislation,
leaving the courts to decide the details. We don't want another
CVPIA on our hands, which will result in new water litigation,
which would be the goal of this hearing, the resulting
legislation.
We have an historic opportunity to put an end to this long
episode in California's water wars. Time is very limited to
pass this settlement into law, but we will make every effort to
resolve the remaining concerns, particularly with respect to
third-party impacts and the funding of the project.
I commend those who have worked so hard on this effort. The
more recent negotiations occurred over the past 13 months, and
the success in the settlement was and will continue to be found
in a series of 10-yard passes, not one Hail Mary pass.
Diligent efforts by Kole Upton, Chairman of the Friant
Water Users Authority, Dan Dooley, a Friant attorney, and Hal
Candee with the NRDC, and others from the State and Federal
Governments have helped achieve this settlement. Now those of
us here in Congress have to close the gap on the remaining
critical issues. Let us make it happen.
I now defer to the Chairman of the full Resources
Committee, Richard Pombo--excuse me, I am sorry. I will now
recognize our Ranking Member, Grace Napolitano, for her opening
statement. Grace?
[The prepared statement of Mr. Radanovich follows:]
Statement of The Honorable George Radanovich, Chairman,
Subcommittee on Water and Power
Today's hearing is a crucial step towards resolving a long and
bitter war in the San Joaquin Valley.
For eighteen years, a legal battle to restore a salmon fishery on
the San Joaquin River has been fought in the courts. Hard-working
Valley farm families whose futures depend on the Dam have been left in
doubt and fish restoration was nothing more than a pipe dream for many
other Californians. In the meantime, many of us were worried that a
judicial decision would be controversial and be appealed to the Supreme
Court, costing millions more and leaving the issue unresolved for many
more years.
For that reason, Senator Feinstein and I joined together last year
to urge the parties to take their fight out of the courtroom and back
to the negotiating table. Friant Water Users Authority, NRDC and the
U.S. government began to sit down in good faith to try and end years of
stalemate. The result is what we have here before us today. The San
Joaquin River Restoration Settlement is an unprecedented effort to
restore a dead fishery and gives certainty to Friant farmers.
Now that much of the hard work has been done in California, it's up
to Congress to bring the settlement across the finish line and provide
the necessary funding. We have a lot of work to do. This hearing is
part of our recent efforts to make the settlement a reality. As we will
see, the settlement has many benefits, but it may also have some
unintended consequences. That's why we've asked some of the best and
brightest to speak today about the need to address third-party
concerns. I'm confident we can resolve these concerns if we all
continue to work in good faith together.
As we march toward our objective, it's important not to repeat
Congress' past mistakes of enacting vague legislation--leaving the
courts to decide the details. We don't need another CVPIA on our hands
and new water litigation.
We have an historic opportunity to put an end to this long episode
of California water wars. Time is very limited to pass the settlement
into law, but we will make very effort to resolve remaining concerns,
particularly with respect to third party impacts and the funding of the
project.
I commend those who worked so hard on this effort. The more recent
negotiations occurred over the past 13 months, and the success in the
settlement was and will continue to be found in a series of 10 yard
passes, not one Hail Mary pass.
Diligent efforts by Kole Upton, Chairman of the Friant Water Users
Authority, Dan Dooley, a Friant Attorney, Hal Candee, with NRDC, and
others from the state and federal governments helped achieve the
settlement. Now those of us here in Congress have to close the gap on
the remaining critical issues. Let's make it happen.
______
STATEMENT OF THE HON. GRACE F. NAPOLITANO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Ms. Napolitano. Thank you, Mr. Chair. I first want to
recognize the hard work that all the parties have put into
this, actually the settling parties put into this settlement.
But most of all I wish to thank my Chair, because I know he put
a lot of hard work in it; and of course Senator Feinstein, with
whom he was able to sit down and work through the settlement.
And whether or not you agree with the terms of it or how it
might affect anybody, yourselves, there is no question that
many of our witnesses this morning have put heart and soul into
the agreement. Making any change, big or small, to the Western
Water Policy is a very difficult and a very slow process, and I
truly appreciate the hard work that has gone into the
settlement, and the commitment of the settling parties to its
success.
I am a very strong supporter of the settlement, and I
assure you that we need to see the San Joaquin River brought
back to life, to see the fish in the river, and to end the
costly non-productive lawsuits. They must stop.
We have an historic opportunity to repair some profound
environmental damage, and we should take advantage of that
opportunity, and this will create a win-win situation for all.
But it has taken many years to get this settlement pulled
together, and I think we all have to recognize that it will
take us here in Congress more than just a few weeks to sort out
the many complex issues.
I do support the settlement, but I am not about to be
rushed into approving the settlement until we give full
consideration to the issues that will be raised by our second
panel of witnesses, and I am looking forward to their
testimony.
I will work hard for the enactment of the settlement, with
reasonable safeguards to protect the interests of those who are
not parties to the settlement. And I do look forward to the
testimony.
Mr. Radanovich. Thank you, Mrs. Napolitano. I now defer to
the Chairman of the full Committee, Mr. Richard Pombo.
STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Pombo. Thank you. I want to congratulate the Chairman
for all of his hard work on this and his efforts to bring this
to a close. And I commend the parties that worked on the
settlement for finding a solution outside of litigation,
because I believe that that is the right way to settle this.
And the settlement does bring certainty to Friant water
users, and it helps many in the Delta. I know many of my
constituents have expressed support for the settlement. They
believe that this is the direction that we need to go.
But the problem that we have in front of us is that it does
bring uncertainty to third parties who could be affected,
including many of my constituents in the Delta.
All of the parties agree on the need to restore the river
and to restore the salmon fishery, and that is something that I
believe that this committee will move forward on helping to
settle that part of the agreement. And all parties
theoretically agree that we need to protect the third parties
who were not part of this original agreement, and that is
another area I believe this committee will move forward on.
This hearing is an effort for all of us to hear what
concerns people have, what solutions, possible solutions are
brought to the table, and that is something I look forward to
working with all of you on. And I hope that those who worked so
hard on this settlement over so many years have the ability to
come to a conclusion. It would make our job easier.
But at some point this committee is going to have to step
forward with a legislative solution. And I am hoping that we
can take a lot of the work that went into this settlement and
put that in the legislation. But all of us have a
responsibility not only to our constituents, but to the
taxpayers of the entire country, and we have to take that into
account.
Today's hearing is a start of the Congressional process as
we move forward working with the Subcommittee Chairman, the
Ranking Member, the other Members from California, and our
colleagues from across the country. We will come up with a
legislative package that settles this.
And I appreciate all of the hard work that has gone into
this, especially by those who worked on it and by the Chairman
of the Subcommittee. And I yield back.
Mr. Radanovich. Thank you, Mr. Chairman. I ask unanimous
consent that the gentleman from California, Mr. Nunes, be
allowed to join us on the dais and participate in today's
hearing. Hearing no objection, so ordered. Right?
I welcome our colleague from California, Mr. Nunes. I will
get to you for your opening statement. I defer to Mr. Miller
for his first. And you may begin.
STATEMENT OF THE HON. GEORGE MILLER, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Miller. Thank you, Mr. Chairman. And I want to commend
you for this hearing, but more importantly for all of the work
that you and other Members of our Committee from the Central
Valley have put in on behalf of this effort, and certainly to
those that we will be hearing from this morning who have spent
more hours than God allowed them to try and negotiate this out.
And I think it is commendable what they have done. I share the
enthusiasm for it, and certainly the hope and the desire that
we can bring it to a successful conclusion outside of
litigation. And I look forward to reading the testimony.
Unfortunately, I am going to have to go to an Education
Committee hearing that is called, that I requested. I didn't
know they would be on the same day. But anyway, so I look
forward to reading the testimony. And also, I look forward to
that discussion of the remaining issues that have not yet been
tentatively--and I understand that it is not done until it is
all done--but have been tentatively resolved.
Certainly I am very deeply concerned with all that is going
on in the Delta, that we not undermine the opportunities that
we may have, that we will have to take out of necessity to try
and restore the health of the Delta. Everyone in this room
recognizes the attention that it has gotten over the last year,
as it has been headed for a collapse. So I am very concerned
that these agreements be consistent with the protections and
the health of the Delta region of our state.
I think that is all possible. And again, with all of the
positive energy and all of the effort that has been made to
date, I think we can accomplish that.
I would like to certainly welcome my Assemblyperson, Lois
Wolk, here from the California Assembly, and her committee, for
her input on some of the ramifications of the tentative
agreement.
Thank you very much, Mr. Chairman.
Mr. Radanovich. Thank you, Mr. Miller. Mr. Nunes.
STATEMENT OF THE HON. DEVIN NUNES, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Nunes. Thank you, Mr. Chairman. I want to thank you for
your leadership on this issue. If it would not have been for
all your hard work on this, we wouldn't be to this point yet,
so I want to thank you for that.
I have a letter that I sent to Chairman Pombo last week
that I would like to submit for the record that basically
states a lot of my concerns on the issue.
Mr. Radanovich. If there is no objection, so ordered.
Mr. Nunes. Essentially what it comes down to is, and not to
reiterate what Mr. Pombo has already said, but this agreement
is a step in the right direction. I think that most of the
parties involved want to rewet the river. Most of the parties
involved want to ensure that a salmon run comes back, and that
there are no third-party impacts.
And the Congress needs to take its time. And I know that
the time is short, because I know that we need to get this done
by the end of the year. But I think today's hearing will be a
start. And hopefully, if not next week, after the election we
can come back and hopefully get this done by the end of the
year.
And with that, I yield back, Mr. Chairman.
[The letter submitted for the record by Mr. Nunes follows:]
[GRAPHIC] [TIFF OMITTED] T0100.006
[GRAPHIC] [TIFF OMITTED] T0100.007
Mr. Radanovich. Thank you, Mr. Nunes. Mr. Cardoza.
STATEMENT OF THE HON. DENNIS CARDOZA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Cardoza. Thank you, Mr. Chairman. I would like to start
today by thanking you for holding this hearing, and commend you
for the work that you and Senator Feinstein have done
encouraging the parties to reopen the settlement and the
discussions almost a year ago. I would also like to thank
Chairman Pombo for his good offices in this effort, as well.
I want to start as well by applauding the parties. They
have worked hard, they have worked diligently, as you have all
said. And we are here because of their efforts to bring this
resolution to this problem.
The litigation has created an atmosphere of uncertainty and
has not been beneficial for the environment or interested
parties. Although the settlement appears to resolve most of the
issues among the parties to the litigation, it raises another
set of issues for downstream landowners, for flood control
systems, and for water districts.
Additionally, the agreement could impose significant costs,
in the millions, for downstream landowners and flood control
operations, and would also have an untold impact on water
delivery systems in the state.
On February 13 of this year, I wrote a letter to the
Department of the Interior that I would like to insert into the
record at this time.
Mr. Radanovich. There being no objection, so ordered.
Mr. Cardoza. It raised third-party concerns, and requested
that these issues be resolved as part of the settlement.
Although the settling parties have met with representatives
of the impacted groups prior to coming to an agreement, several
significant issues were not addressed in the settlement.
Specifically, resolution of the Endangered Species Act issues;
reintroduction of a Spring Run Salmon into one river system
could end up causing Endangered Species Act impacts and
resulting water supply impacts on the tributaries, as well as
the Delta.
Feasibility. Reach 4B of the river does not have the
capacity at this time to handle increased flows. An alternative
is the flood control bypass system, but using the bypass system
will result in significant potential flood impacts, and also
has impacts potentially with too much heat to the water, and
could have other fishery impacts down the river.
Before releasing the water, a feasibility study must be
conducted to determine the best option and what funding is
needed for improvements and mitigation.
Funding. In an effort to provide a more reliable funding
stream, all, rather than just a portion, of Friant's capital
repayment obligation should be directed toward this program.
Water rights. The settlement caps Friant's exposure on
water releases, but does not clearly provide for the protection
of water rights for other water users. This legislation needs
to clarify that these water rights will not be impacted by the
agreement.
Process. There needs to be an ongoing, inclusive process
for impacted third parties to provide meaningful input.
Temperature. If releases of water for Spring Run Salmon are
not timed properly, they could have an impact on Fall Run
Salmon on the tributaries. That is what I was referring to
before. The agreement needs to provide that fisheries on the
tributaries will not be adversely impacted.
Mr. Chairman, I am supportive of this settlement if we can
get these third-party issues resolved. Yesterday many of us met
with stakeholders and Senator Feinstein in her office. I
understand, and we all were part of the discussions, where we
believe significant progress was made on all these points.
But certainly some significant issues remain, and this has
got to be an entire deal. We can't accomplish three quarters of
it, and go home happy. We have to deal with all of the third-
party impacts.
As much as I want this agreement to go forward, I need to
make it clear that I cannot support a settlement at the expense
of those not party to the litigation.
Mr. Chairman, I am very hopeful that we can get through
these things. I believe we can. With your leadership, Senator
Feinstein's leadership, and the Members of this committee, I
think we can create a win-win for the Valley and for the State
of California.
[The letter submitted for the record by Mr. Cardoza
follows:]
[GRAPHIC] [TIFF OMITTED] T0100.003
[GRAPHIC] [TIFF OMITTED] T0100.004
Mr. Radanovich. Thank you, Mr. Cardoza. Mr. Costa.
STATEMENT OF THE HON. JIM COSTA, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Costa. Thank you very much, Mr. Chairman. I, too, want
to commend you and Senator Feinstein's efforts over the last
year almost in trying to get the parties focused on reaching an
agreement. And I want to commend the parties to the suit for
being able to come to us with an out-of-court settlement
agreement that I think reflects the best efforts on the part of
all those who have partaken.
When I associate myself with comments of Congressman
Cardoza, because he, I think, very specifically indicated
points that yet have to be resolved as it relates to third-
party impacts, I, too, have a letter that I would like to
submit to the record that I have addressed to the Chairman.
Mr. Radanovich. No objection. So ordered.
Mr. Costa. Thank you very much. Mr. Chairman, in the
letter--and I think it is worth underlining, because I think we
have all commented on it--having been one who has been involved
in water-related issues in California for now over two decades,
I was 15 when I started.
But the fact is I think notwithstanding the success of the
parties in reaching agreement, we all know in California that
these water issues either directly or indirectly impact others
not only within the region, but in other parts of California,
because of the way that California's complex water system, its
plumbing system is interconnected with local, state, and
Federal water projects.
The fact of the matter is that you cannot have one impact,
or make changes in one area of the water plumbing system of
California, with it not impacting, either directly or
indirectly, other water users.
So the third-party issues are critical. And I was pleased
to hear in yesterday's meetings an agreement around the room by
all the signers of this agreement that they had no intention of
creating third-party impacts. I think that is important to
note, it is important to underline.
Now, I know there has been a lot of effort taking place,
not only yesterday afternoon, but previously, to try to reach
that goal.
But let me say that the cloud that hangs over the
discussions and the ultimate determination as to whether or not
I can support this, is whether or not we are able to eliminate
any third-party impacts. As I have tried to remind people in
discussions that we have had on numerous occasions, the cloud
that exists is the fact that, under CVPIA in 1992 agreement,
there was a reallocation of 800,000 acre-feet of water. In that
negotiated agreement there are still today discussions as it
relates to the B2 water and the environmental water account.
This proposal has a reallocation of 200,000 acre-feet of
water. I think it is very important, as Congressman Cardoza has
noted and others, that the tributaries not be impacted as it
relates to their water supply. And of course, the recirculation
effort as it relates to the Delta, the Delta which is such an
important environmental asset to California. But not only is it
an important environmental asset, it is the linchpin of our
plumbing system as we try to manage our water needs in
California and provide water supplies not just for Northern
California, but to Central California and to Southern
California.
So I think it is important that the discretion, as we work
on this effort, be made available to the Secretary under
current law, as it relates to physical structures, channel
improvements, and water flows. And I think that that has to be
understood. And I think that defining successful implementation
of this agreement must be understood by all the stakeholders,
and that I think specifically relates to the third-party
impacts.
Having worked with all of the parties in the past, I can
tell you that ambiguity, ambiguity in past water negotiations
oftentimes has led to the law of unintended consequences. What
do I mean by that? I mean that those unintended consequences
later on result in disputes and reinterpretation that has
unfortunately oftentimes led into further litigation. I don't
believe that furthers anybody's interest.
We have come a long way in 18 years in this restoration
agreement. But the fact of the matter is we haven't finalized
the effort, and we have to finalize this effort by providing
the third-party impacts. If we do that successfully, I will be
happy to support this effort.
And I yield the balance of my time.
[The letter submitted for the record by Mr. Costa follows:]
[GRAPHIC] [TIFF OMITTED] T0100.005
Mr. Radanovich. Thank you, Mr. Costa. There being no
further opening statements, I am going to go ahead and
introduce the first panel.
We have two panels here today. Joining us on the first
panel today is Mr. Kole Upton, who is the Chairman of the
Friant Water Users Authority from Chowchilla, California; Mr.
Hal Candee, Senior Attorney of the Natural Resources Defense
Council in San Francisco; Mr. Jason Peltier, Principal Deputy
Assistant Secretary for Water and Science of the Department of
Interior in Washington, D.C.; the Hon. Mike Chrisman, Secretary
of the Resources Agency of the State of California in
Sacramento; and the Hon. Lois Wolk, Chair of the Committee on
Water, Parks, and Wildlife, the California State Assembly, in
Sacramento as well.
Ladies and gentlemen, welcome to the Subcommittee. Many of
you were diligently working on getting us up to this point, and
I appreciate the fact that you are here to explain all the good
work that has happened, not only over the last year, but also
over the last 24 to 36 hours.
As the hearing goes, we would like to hear from each one of
you with an opening statement of about five minutes. Please
feel free to be extemporaneous in your remarks, as your full
written testimony is submitted for the record. And then we will
open up the dais so Members may ask any questions they might
have.
So Mr. Upton, welcome to the Subcommittee, and you may
begin your testimony.
STATEMENT OF KOLE UPTON, CHAIRMAN, FRIANT WATER USERS
AUTHORITY, CHOWCHILLA, CALIFORNIA
Mr. Upton. Thank you, Congressman. We appreciate your
leadership on this.
I will start by apologizing. You asked for the best and
brightest; Brian sent me instead.
[Laughter.]
Mr. Upton. But they did send a keeper with me, and I would
like to introduce Dan Dooley behind me, who is one of the lead
negotiators. So if the questions become too difficult, Dan can
step in.
Mr. Radanovich. Certainly, and that is not a problem at
all, Mr. Dooley. If you would just recognize yourself before
you speak, that would be just fine.
Mr. Upton. I am a family farmer. I actually farm and live
in Congressman Cardoza's district, which means he probably has
every water issue in the State of California right within his
district. It was started by my father, and then we are now
farming with my brother and two sons. And we farm almonds,
pistachios, cotton, wheat, and corn.
We are typical of the Friant-type farmer. There are 15,000
farmers in the Friant service area, from Merced County to
Currant County, about a million acres. In addition, there are
about a million and a quarter people that are embedded in the
Friant service area, that depend on the Friant surface water
either directly, like Orange Cove or the City of Fresno, or
they depend on the percolation into the aquifer so they can
pump it out from the underground.
This is a highly productive area; it is a very vibrant
society. And it is a conjunctive-use area, which is an
important thing to remember.
Congress dried up this river in the 1930s by specific
design. And the idea, I think, was to give an opportunity to
people, and also to redress the underground overdraft of the
aquifer that had occurred. And a lot of people took this
opportunity, and it is a government program that has actually
worked pretty well.
In 1988 NRDC sued the government. And it came down to
basically that Congress was violating the law by drying up a
river, a California law, that there had to be a live river
below every dam. Law 5937.
Well, we have battled on this thing for 18 years. And last
year the judge basically said the jig is up, he had had enough,
and he was going to rule. And he had indicated that he had very
crude tools, like a sledgehammer, a meat cleaver; and if we
were smart as settling parties, we would get together and try
to settle this thing.
Well, it became pretty obvious to us that whatever he used,
the sledgehammer or the cleaver, it is going to be on Friant's
back primarily. So when Senator Feinstein and you, Congressman,
requested that we try one more time to settle this thing with
certain conditions, we jumped at that chance. And the
conditions that you encouraged us were caps on the Friant
water, so we could have some certainty.
The Friant guys didn't go to San Francisco, to Mr. Candee,
and say hey, let us make a deal here, we think it is a good
idea to rewater this river. This is the result of a lawsuit
where we had two choices: we could take the judge's ruling, or
we could take a settlement that you and Senator Feinstein had
offered us under those conditions.
And so that is what we did. And we negotiated for about
three months with NRDC, and we were able to come up with the
concept of caps on the water and caps on the funding for the
Friant folks. And neither one of those is available in a court
judgment.
At that point then we had to bring in the Federal team,
because the feds are part of this. And to their credit, they
brought in their A team. Some of them are here today: Steve
MacFarlane, Barbara Geigle, two sharp attorneys that really
helped us, and Bill Luce, the Area Manager for Fresno.
During this time we also negotiated some water management
tools for Friant that are going to help us mitigate the losses
that we are going to have when we release water out of our
districts. And these are the water management, excuse me, or
the recirculation, where we are going to take the water down to
the Delta, and if we are able to, without hurting anybody else
or infringing on their rights, we want to recirculate that,
which will mitigate some of the losses.
The second thing, which will require some Congressional
legislation, is a recovered water account, where water will be
available during wet conditions for the Friant farmers that
have given up water as part of this restoration, to buy it at a
low price, so we can bank it, so we can use it as inland
recharge, and that kind of thing.
The next step for the Friant folks is to get together as a
group, all the contractors, and say how are we going to take
care of the losses that our guys have. Because some of our
districts are along the mountains; they have no groundwater
whatsoever. So when they lose some surface water for this
restoration, they are either going to have to fallow their land
or go out of business. That is unacceptable. So what we have to
do as Friant is work with our class-two districts and make some
trades so those folks can stay in business. And we can do that.
And we have started that process already.
There are basically three legs to this agreement as I look
at it. First is the restoration of the salmon. That is what Hal
wants. OK, we have agreed to that.
Second is the water management tools that are available to
us, that are not available under a judgment. And I have just
explained those.
The third leg is the third parties, which several of you
Congressmen have mentioned. It is not fair to have this
settlement on the backs of some other water user. We don't want
to do that. It is in the settlement document that there will be
no material adverse impact to third parties.
The question is, how do you do that? How do you set that
up? And that is what we have been working on here for the past
two days, and I think we are very close to it.
I will just conclude by saying that the farmers----
Mr. Radanovich. Go ahead, I want you to finish your
statement. So go ahead and ignore the red light.
Mr. Upton. OK, thank you.
[Laughter.]
Mr. Radanovich. I will apply the red light to Members of
Congress.
[Laughter.]
Mr. Upton. I will conclude by saying that farmers are used
to adversity, OK. We are used to bad weather, to bad prices. We
are used to pests, and I am not talking about Hal here.
[Laughter.]
Mr. Upton. So we have to deal with that kind of thing. And
this is where we are at on this. This is a judgment call for us
that this is a better solution that continued fighting.
And I will submit to you that it is better for us, it is
better for them, and it is even better for the third parties if
we do it right. Because if this thing goes back to court, we
are all going to be in worse shape.
So thank you very much, Congressman, for your leadership.
[The prepared statement of Mr. Upton follows:]
Statement of Kole M. Upton, Chairman, Friant Water Users Authority, and
Director, Chowchilla Water District
MR. CHAIRMAN AND MEMBERS OF THE SUBCOMMITTEE:
It is an honor and privilege to again appear before this Committee,
and to help bring you the best news regarding a major Western resource
issue that has been heard in a long, long time. I am Kole Upton,
Chairman of the Friant Water Users Authority, Director on the
Chowchilla Water District Board, and a family farmer in Merced County,
California. My family for decades has depended upon, and beneficially
used, Central Valley Project water delivered from the San Joaquin River
through facilities of the CVP's Friant Division.
Eight days ago, the Friant Water Users Authority, Natural Resources
Defense Council and U.S. Department of the Interior cooperatively
reached what can only be termed a historic moment. As representatives
of Friant, the NRDC and its coalition, and the federal government
gathered at the federal courthouse in Sacramento on September 13,
documents were being electronically filed within the U.S. District
Court of Judge Lawrence K. Karlton to settle the San Joaquin River
litigation known as NRDC v. Rodgers that has been so contentious, and
which has placed such a dark cloud over Friant's future, for the past
18 years.
My testimony today will focus on this Settlement and why it is good
for society as a whole and all the parties. I will discuss how this
carefully crafted Settlement provides a process to restore a river in a
manner that maintains a vibrant economy and society and how it offers
protection, in so many ways, for third parties who are downstream
stakeholders.
Most importantly, I will assert to you that this extraordinary
Settlement offers a positive and productive path forward into a future
in which all of us can use our resources and talents in a cooperative
effort rather than one that is wastefully devoted to continued
bickering and fighting.
This Settlement may not be not perfect, but it is by far the most
practical option for each of the parties, and particularly for the
region I represent.
Please permit me to briefly digress and commend the legislators and
policymakers--Federal, State, and Local--who have done so much to reach
this remarkable point in time, and who continue to recognize that only
through continued cooperation and consensus can we turn the Settlement
that I am about to discuss into legislation we need to quickly make
restoration and Settlement implementation a reality. In particular, Mr.
Chairman, the settling parties and the people and organizations we
represent are grateful for the leading roles that you and Senator
Feinstein willingly took to bring us back to the negotiating table and
bridge our differences in a way that has made it possible for all of us
to embrace this Settlement and its provisions. Thank you, Chairman
Radanovich, so very much.
As you may know, the Friant Water Users Authority consists of 22
member agencies that receive water from the Friant Division of the
Central Valley Project. The Friant service area consists of
approximately 15,000 mostly small family farms on nearly one million
acres of the most productive farmland in the nation along the southern
San Joaquin Valley's East Side. The Friant Division sustains
underground water supplies relied upon by residents, businesses and
industries in the embedded cities within the Friant service area and
delivers surface water to cities and towns that include Fresno, Friant,
Orange Cove, Lindsay, Strathmore and Terra Bella.
PERSONAL INVOLVEMENT
For the past year, I have been one of Friant's two negotiators in
the three-party negotiations that produced this Settlement. I have been
paired with Dan Dooley, an attorney in Visalia, California, who
represents several Friant contractors. Mr. Dooley will be with me at
today's hearing, and will be available to respond to any questions you
may have regarding Settlement details.
Mr. Dooley and I were motivated to find a way to settle the NRDC's
lawsuit over the San Joaquin River because of how deep our roots run
back home in the San Joaquin Valley and how determined we were to
preserve the valley's way of life. Friant Dam and water delivered
through the Madera and Friant-Kern canals has always provided a great
deal of opportunity. In my family's case, it helped us build and
sustain our farm in Merced County, north of Chowchilla, which my Dad
started. I was born and grew up in the valley and started farming after
finishing college and serving in the Air Force. Our farming operation
today includes my brother and my two sons. We grow almonds, pistachios,
wheat, cotton, and corn.
I became involved in our local water boards and, eventually, with
Friant because it is so clear that water means everything to farms and
communities such as ours. For the past 18 years, this supply of water
from Friant that means so much to us has been under a dark cloud. We
have had every reason to believe that those of us who farm and
communities that truly exist because of Friant could end up losing all
or a major portion of their water through a judge's decision in the
NRDC case or because of some other challenge.
Such a possibility was unacceptable. A farmer cannot farm without
an adequate and affordable water supply. Further, a farmer must have
some certainty before committing to a growing season. And so, even as
this case began to head down a fast track toward trial, we were
provided with an opportunity to sit down and try again. I can assure
you that neither Mr. Dooley nor myself were overjoyed at the prospect
but we knew it had to be attempted and, if at all possible, steered
toward a resolution in a way that all of us could live with. That has
now been done.
BACKGROUND
It goes without saying that this case has been seemingly endless,
frequently frustrating, incredibly challenging, eternally complicated,
often controversial and always expensive.
It began in 1988 just as the U.S. Bureau of Reclamation was
beginning to renew Friant's long-term 40-year contracts. NRDC and its
coalition of environmental and fishing interests challenged the
government's decision to renew Friant water service contracts without
an Environmental Impact Statement. Of course, it didn't stay that
simple. NRDC's complaint was amended seven times over the next 15 years
to include other claims. One of those was a claim under the Endangered
Species Act, and another contended that the federal government's
operation of Friant Dam was in violation of California Fish and Game
Code Section 5937, which requires dam operators to release sufficient
water to keep fish in good condition below the dam. Most of the earlier
claims are no longer relevant. But the river flow issue--the most
crucial of all to Friant users--came to be the litigation's focus over
the past several years, especially during an earlier four-year
settlement effort that was unfortunately not successful.
The case reached a crucial turning point in August 2004 when the
judge ruled Section 5937 imposes a continuing duty to release
sufficient water from Friant Dam into the San Joaquin River to restore
former historic salmon runs and fishery conditions. It assigned
liability to the Bureau of Reclamation. The court did not determine how
much water would be needed to satisfy the state law but set the case
for a trial that was to have started in February 2006 to determine the
``remedies''--the amount of the releases. In 2005, the parties began
preparing for that trial and in the process gained valuable new
scientific information about possible restoration strategies.
I believe the seed of this Settlement was planted by Judge Karlton
himself one day in January 2005 during a hearing in his court. The
judge said two or three times there needed to be a settlement. Judge
Karlton said, ``I keep telling you folks the law is a bludgeon, not a
surgeon, and what this case needs is surgery. And it can only be
accomplished if you take the scalpel in your hand.'' And he looked us
all in the eye and warned about as bluntly as a judge can put it, ``But
the result of that is that you're going to get the kind of fairly gross
application of the law that the law will--the only thing that the law
will permit me to do. There may be some fine-tuning permitted. ... But,
you know, my sense--of it, but I may be wrong, is it is not going to be
a very refined solution to these problems.''
That resonated with me, and with all the Friant contractors and
their attorneys. It seemed to say what many of us had long suspected--
that if the judge decided this case, there was going to be a great deal
of Friant water used as a ``remedy'' down the river. And without a
settlement, there wasn't going to be any of the extensive and
critically needed work done in the channel and to structures to provide
any sort of on-the-ground hope that salmon could be lured back by water
alone. There was, however, a strong likelihood that Friant's water
users and the economic and social structure in the San Joaquin Valley
that depends upon this water supply could very well be severely
impacted.
That was the situation a little over a year ago when Chairman
Radanovich and Senator Feinstein began a non-partisan effort to try to
get Friant, NRDC and the government to try again to negotiate a
mutually agreeable Settlement. It should be obvious that Mr. Radanovich
and Mrs. Feinstein were amazingly persuasive!
We began negotiations late in the summer of 2005. That it took us a
year to finalize an agreement that resolved each and every issue should
make it evident to the greatest doubter that the process, the issues
and the discussions were complex and difficult. One of our biggest
problems was that the parties had never been able to find much in the
way of common ground. It had always been an Us vs. Them mentality with
positions long ago carved out in stone. So the new negotiations,
although frequent, just as often were difficult. However, progress,
although slow, seemed to be steady.
Then came the key breakthrough--and, again, it came at the urging
of Chairman Radanovich and Senator Feinstein. The concept was a good
old-fashioned compromise. This is essentially how it was framed:
In exchange for restoring the San Joaquin River below Friant Dam,
Friant's new water dedication for the fishery's needs would be capped
at certain amounts. That instantly provided Friant water users with
what had long been missing--a declaration of water supply and quantity
certainty for decades into the future. We were well aware in taking
this key compromise and filling in the details that such an agreement
would result in use of a portion of the Friant Division water supply.
And, yes, it represents water that our already water-short area can't
afford to lose. But Friant also recognized that this would be a way to
remove what promised to stretch into years of continued uncertainty
over the Friant water supply and economic and social well-being of the
eastern San Joaquin Valley. Of equal importance to that certainty and
the river's restoration was development of the Settlement's unique
means of using good, innovative water management to also provide means
to recover, re-use and recirculate water in an attempt to mitigate
impacts on Friant water users. Also of great importance to Friant was
another crucial compromise that capped Friant's financial contribution
to river restoration at present levels--which add up to tens of
millions of dollars each year paid into the CVP Improvement Act's
Restoration Fund and Friant Surcharge.
By this past April, the parties were able to inform Judge Karlton
that agreement had been achieved on numerous issues, including
restoration goals, water flows, ways of managing and recovering water
and a host of other issues. At the end of June, attorneys agreed to a
Settlement in principle.
You know the rest. The agreement, covering 20 years, and possibly
longer, is now public as a result of filing the document with the court
on September 13.
THE SETTLEMENT AGREEMENT
The Settlement Agreement itself is constructed around two important
parallel and equal goals:
The Restoration Goal is to restore and maintain a self-
sustaining salmon population below Friant Dam to the confluence of the
Merced River.
The Water Management Goal is to reduce or avoid adverse
water supply impacts to all of the Friant Division long-term water
contractors.
THE RESTORATION GOAL includes three essential elements. Those
include:
A number of improvements providing for channel capacity,
related flood protection, fish passage and fish screening. These will
take place in two phases. By the end of 2013, projects to be completed
include a salmon bypass channel around Mendota Pool, increasing channel
capacity between the Eastside Bypass diversion and Mendota Pool to
4,500 cubic feet per second; increasing the channel capacity (in Reach
4B) below the Sand Slough control structure to 475 cfs; modifying the
Sand Slough control structure to provide for fish passage and
appropriate routing of water; screening the Arroyo Canal diversion; and
modifying Sack Dam and the Eastside and Mariposa Bypass channels for
fish passage and low flow conditions; and providing seasonal fish
barriers to screen fish at Salt and Mud Sloughs. The second phase
improvements are to be completed by the end of 2016. These include
increasing Reach 4B channel capacity below the Sand Slough control
structure to 4,500 cfs unless it is determined not to substantially
enhance achievement of the Restoration Goal; modifying the Eastside
Bypass diversion structure to provide appropriate fish screening and
passage; and isolating gravel pits near Fresno from the river.
Flow releases from Friant Dam, beginning in 2009 with
experimental interim flows and with full restoration flows beginning in
2014; with quantities determined according to hydrographs based upon
water year types in order to provide fishery habitat water. These
restoration flows may be supplemented by buffer flows of up to 10% and
can be further augmented with water purchases from willing sellers. If
construction of the river improvements is not completed, the Settlement
agreement contains default provisions designed to preserve water for
later use to achieve the Restoration Goal. Procedures are also
specified for flexible management of Restoration Flows to account for
temperature and biological factors. This adaptive management is to
avoid causing harm to other downstream fishery programs. The flow
schedule can't be modified until after December 31, 2026 and any change
would require a court filing and a referral to the State Water
Resources Control Board.
Reintroduction of salmon and other varieties of fish into
the upper San Joaquin River. The Fish and Wildlife Service is to apply
to the National Marine Fisheries Service for a permit to reintroduce
salmon and NMFS must decide on such application by April 30, 2012. Fall
and spring run salmon are to be reintroduced by the end of 2012.
THE WATER MANAGEMENT GOAL and its implementation embrace two
critical elements. They include:
Development and implementation of a plan to recirculate,
recapture, reuse, exchange, or transfer water released for Restoration
Flows within bounds of the Settlement's terms and all applicable laws,
agreements and environmental policies.
Creation of a Recovered Water Account that provides an
opportunity for Friant Division long-term contractors to recover water
they have lost to Restoration Flows at a reduced water rate in wet
water conditions. Friant Division long-term contractors providing water
for Restoration Flows will be able to purchase water for $10 an acre
foot during certain wet conditions when water is available that is not
necessary to meet contractual obligations or Restoration Flows. This
provision is designed to increase water banking and management programs
and boost incentives for districts to actively participate while
reducing the Settlement's water supply impacts.
SOME OF THE SETTLEMENT'S OTHER FEATURES include and address:
State of California Participation: This contemplates that
the State will of necessity participate in implementing many
provisions. A memorandum of understanding has been negotiated with
various State agencies. It specifies how Friant, the NRDC coalition,
federal government and the State will integrate implementation
activities. The State has expressed a desire for its Resources Agencies
to be actively involved. We expect the State to provide technical and
funding resources. Specific agreements will be negotiated with the
State regarding specific Settlement actions.
Funding: There are very specific provisions related to
Settlement funding, including provisions relating to the character of
the capital investment, limitations on Friant Division long-term
contractor payments, identification of existing funding resources and
additional appropriations authorization. The Settlement provides that
costs will not add to CVP capital obligations. It also commits Friant
Division long-term water contractors to continue paying the CVPIA
Restoration Charge and Friant Surcharge for the life of the Settlement
but caps Friant's obligations at those amounts. The Friant Surcharge
would be dedicated to implementing the settlement, as would Friant's
capital repayment portion of CVP water rate payments for nine fiscal
years. Up to $2 million annually of the Friant CVPIA Restoration Charge
payments will be made available for implementing the Settlement. In
addition, the Settlement authorizes appropriations authority for
implementation totaling $250 million. (Some of these identified sources
of funding are not subject to the appropriations ceiling or to annual
appropriations and may not be subject to scoring for budget allocation
purposes.) State funding from various revenue streams, including state
bond measures, are anticipated. Funding identified in the Settlement is
to be available to implement the Water Management Goal as well as the
Restoration Goal.
Other Claims Resolved: The Settlement resolves all claims
pending in the existing litigation, including those challenging the
validity of the Friant Division long-term renewal contracts. The
exception is attorneys' fees and costs.
Third Party Impacts And Participation: There has been a
great deal of concern voiced about third party impacts. All of us
clearly understand and the Settlement acknowledges that implementation
will require a series of agreements with agencies, entities and
individuals who are not parties to the litigation. The Interior
Department is to coordinate with interested third parties (including
third parties who own or control lands or facilities affected by
Settlement implementation), and for public participation in Settlement
implementation. Provisions of the MOU with the State contemplate joint
efforts to provide mechanisms for non-party participation in Settlement
implementation.
Management And Administration: A Restoration
Administrator position is to be established to help implement the
agreement and advise the Interior Department on how the river
restoration hydrographs are to be implemented, when buffer flows may be
needed, river channel and fish passage improvements, reintroduction of
salmon, interim flows for data collection purposes, targets, goals and
milestones for successful implementation of the fishery program and
coordination of flows with downstream tributary fishery efforts.
Appointment will be for a six-year term. A Technical Advisory Committee
will be created to advise the Restoration Administrator. It will
include two representatives each from the plaintiffs' coalition and
Friant defendants as well as two members mutually agreed upon, but none
are to be federal employees. Terms are to be for three years.
Long-Term Friant Water Service Contract Amendments: When
the Friant Division's long-term renewal contracts were enacted in 2001,
they included a stipulation requiring necessary contract amendments to
reflect and be consistent with any Settlement agreement. Such a
provision is part of the Settlement. Friant's long-term contracts will
be kept in place with no further National Environmental Policy Act or
Endangered Species Act compliance actions required.
Resolution of Disputes: Procedures are included for
attempting to resolve disputes by meeting and conferring. Should that
be unsuccessful, services of a neutral third party are to be used.
Finally, the parties could turn to the U.S. District Court.
FEDERAL LEGISLATION
This issue is before the Subcommittee because some Interior
Department actions called for in the Settlement require Congressional
authority. As you have seen, an exhibit to the agreement contains
legislative language proposed to implement the Settlement. It is
referred to as the ``San Joaquin River Settlement Act.'' Passage of
this legislation in substantially the same form as the exhibit is
critical because any party could void the Settlement if the necessary
legislation were not enacted on a timely basis.
CONCLUSION
Settlement of the 18-year-old litigation known as NRDC v. Rodgers
has been rightly applauded in much of the nation's press as an
outstanding achievement. The Friant Water Users Authority and its
member agencies appreciate that sentiment and view the Settlement as
historic, and the beginning of a new era in which the policies and
activities of the past are blended with society's environmental
priorities of the present and future. This Settlement has been
constructed upon a newfound willingness among the settling parties to
cooperate and compromise for the common good, and to the benefit of
each of our positions.
To that end, there are individuals and interests who have been
quick to criticize this agreement, ostensibly for not being perfect,
whatever that is. In fact, those of us who farm are never blessed with
perfection. Every growing season presents the challenges of weather,
pests, prices and thieves. You try to find the best practical approach
to handling each challenge.
The Friant Division contractors reviewing the situation and
prospects posed by the potential outcome of continuing to litigate over
San Joaquin River flow issues with the NRDC and its coalition have
taken the same approach as would any farmer in evaluating what this
Settlement offers. I would urge you to do the same. Let not an
unrealistic desire for perfection be the enemy of the practical.
In addition to society's general interest in the San Joaquin River,
there are three interest groups lobbying Congress on the legislation
proposed for implementing this Settlement. These parties include:
The environmentalists interested in restoring flows and
salmon to the San Joaquin River.
The San Joaquin Valley folks who are dependent on San
Joaquin River water for sustaining their livelihoods and homes within
the Friant Division.
The third party interests who do not want material
adverse impacts to their constituents.
I submit to you that, collectively and individually, all these
interests and society itself will be far better served by this
Settlement than by Congress rejecting it. Of course not everyone is
fully satisfied, from either the environmental coalition or the water
users community:
Some in the environmental community may wonder why they
should settle with caps on Friant's costs and water releases when they
have won so convincingly to date in Judge Karlton's Court? The answer
for them is that this Settlement offers a process and constructive
opportunity of cooperation for salmon restoration. With a court
judgment, the attitude and approach by the valley folks would be
predominantly one of perpetual resistance, and an emphasis on how to
save as much water as possible. Under that scenario, water would nearly
certainly be released upon orders of a federal judge, but the necessary
improvements and cooperative nature essential to an effective salmon
recovery would be entirely missing. And, if it were ever to be
achieved, if would be accomplished only be after a much longer time
with far greater amounts of water.
San Joaquin Valley water users interests may feel that
this Settlement makes no sense because, they reason, Congress six
decades ago agreed to make the Friant project a reality and decided to
make it work by drying up 60 miles of the San Joaquin River. Valley
folks may also feel a federal judge should not have the power to
overturn such a decision made long ago, and subsequently reaffirmed, by
Congress. There is a misperception by some that an unfavorable ruling
to valley water users and agencies would be a strong candidate for
being reversed on appeal to the Ninth Circuit or the Supreme Court.
Unfortunately, Friant has already been down that road once with this
judge's decisions, and it resulted in our contracts being voided. His
ruling was upheld by the Ninth Circuit and the Supreme Court would not
take the case.
As a farmer, one firm slap on the head is usually enough to get my
attention. That's true with most farmers I know, too. All of our Friant
and district lawyers have informed us that this case, at best, would be
an uphill battle with an uncertain, but possibly onerous, outcome. This
Settlement is a far superior option.
The third parties seek protection and indemnification against
unfair water and fiscal costs they assert the Settlement would be
inflict upon their constituents. Some may demand 100% protection, and
if it is not forthcoming, then they will recommend rejection of the
Settlement. We have tried to address their concerns, and the Congress
may need to add some legislative language to further protect them.
However, it is important to understand that rejection of the Settlement
does not mean the third parties would suddenly be 100% free of any
impact upon them. Far from it.
It would be naive to harbor a thought that Congressional rejection
of the Settlement would make the prospects of flows down the San
Joaquin River, and a return of salmon, go away. If the Settlement were
to ultimately fall apart, it would only be a matter of time until the
Judge rules, and the water flows. Should that occur upon a court's
order, rather than a carefully crafted and negotiated compromise
Settlement, third parties would have none of the protections or
opportunities for constructive comment and participation offered in
this Settlement.
Society has determined that the rules under which Friant was built,
and how it has so effectively functioned in benefiting the valley
community, have changed. Environmental care and concern today are the
partners of valley farming and living. Friant has embraced this notion
and, in fact, has been working steadfastly for the past several years
to create the scientific basis of understanding upon which good and
effective restoration decisions can be founded. Friant wants
restoration of the San Joaquin River to work.
As I stated at the beginning of these remarks, for society as a
whole and all the parties, this is a good Settlement. It provides a
process to restore a river in manner that maintains a vibrant economy
and society. It offers protection for third parties. It offers new life
to the river and its fishery habitat.
Most importantly, it provides a future course upon which all of us
can use our resources and talents in a cooperative and constructive
manner rather than wasting our energies upon continued legal and
political fighting.
Friant, NRDC's coalition and the Interior Department have done what
some contended was the impossible. We've reached a practical, fair and
cooperative Settlement. We've made history. We ask those of you in
Congress to join us by providing the tools to make this Settlement
work.
______
[The response to questions submitted for the record by Mr.
Upton follows:]
FRIANT WATER USERS ASSOCIATION
October 20, 2006
Congressman Richard Pombo, Chair
Committee on Resources
U.S. House of Representatives
Washington, D.C. 20515
Re: Additional Questions for Witnesses, Hearing on the San Joaquin
River Settlement Before the Subcommittee on Water and Power, Thursday,
September 21, 2006
Dear Congressman Pombo:
Thank you for the opportunity to appear at the Subcommittee Hearing
on the San Joaquin River Settlement.
I am pleased to provide you a copy of my direct response to
Congressman Nunes' questions stemming from the Subcommittee on Water
and Power Hearing on the San Joaquin River Settlement on September 21,
2006. As you are aware, a large part of the Friant Service Area is in
Congressman Nunes' District and thus a direct response to Congressman
Nunes seemed appropriate. He continues to be a leader in promoting good
public policy to ensure adequate and affordable water is available to
our area for the future. Maintaining an adequate and affordable water
supply was at the core of the decision of the Authority and all of its
member irrigation and water districts to settle the long-standing
litigation.
Please note that separate responses from the Natural Resources
Defense Council and the U.S. Department of the Interior will be
provided which, in certain instances, cite additional information to
the questions asked as referenced in my responses.
Sincerely,
Kole M. Upton
Enclosure
Main Office
854 N. Harvard Avenue
Lindsay, CA 93247
Phone: 559-562-6305
Fax: 559-562-3496
Sacramento Office
1521 I Street
Sacramento, CA 95814
Phone: 916-441-1931
Fax: 916-441-1581
Website: www.fwua.org
______
Response to questions submitted for the record by Kole Upton, Chairman,
Friant Water Users Authority
October 20, 2006
The Honorable Devin Nunes
U.S. House of Representatives
Washington, D.C. 20515
Re: Additional Questions for Witnesses, Hearing on the San Joaquin
River Settlement Before the Subcommittee on Water and Power, Thursday,
September 21, 2006
Dear Congressman Nunes:
Thank you for participating in the Subcommittee Hearing on the San
Joaquin River Settlement. This response to your questions was generated
in conjunction with my position as Chairman of the Friant Water Users
Authority (Friant) and that organization's role in the Settlement
process. I want to directly respond to you from the perspective of
Friant in deference to your essential position and role in our area's
future and your representation of a significant portion of the Friant
Service area.
Your leadership in promoting good public policy to ensure adequate
and affordable water is available to our area for our future is greatly
appreciated. Maintaining an adequate, affordable and reliable water
supply was at the core of the decision of the Authority and all of its
member irrigation and water districts to settle the long-standing
litigation.
_______________________________________________________________________
QUESTION - 1. Based on the terms of the Settlement, has an analysis
been completed on the potential water losses on a district-by-district
level and wateruser-by-wateruser level? If so, can you provide a copy
of that analysis to the Committee?
Answer: Friant expects that its member districts' operations will
be significantly altered after the Settlement is implemented, and it is
hoped that, through operational changes, increased conjunctive use and
groundwater banking programs, and the like, the Friant water users will
be able to minimize the impacts of the Settlement. While an analysis of
the Friant Division impacts (referred to in the Federal and NRDC
responses) on water deliveries was prepared to give the Friant member
districts a basis to determine the potential district level impacts of
the Settlement on their individual operations, that analysis assumes
historic operations of Friant Dam and does not consider any future
modifications of project operations. Consequently, the Friant member
districts do not believe this Friant Division analysis would further
the Committee's understanding of the potential future impacts of the
Settlement on the individual districts. However, the Friant districts
recognize that you and the Committee have an interest in understanding
the likely water supply impacts of the Settlement on the Friant
districts, and, to reiterate our earlier offer to you, the Friant
districts are willing to make their general managers available to brief
you and other interested Members on the individual district's likely
reactions to the Settlement, the programs the districts contemplate
implementing, and the anticipated water supply impacts. To the best of
my knowledge there has been no wateruser-by-wateruser analysis
prepared.
The essential next step for the Friant contractors is to develop a
cooperative agreement using the mitigation measures in the Water
Management Goal of the Settlement to offset losses incurred by water
users as a result of the restoration releases. Some districts cannot
afford to lose any surface water in that they have no ground water.
Therefore, it is imperative that the districts with banking facilities
and Class II contracts make arrangements with those districts to ensure
all growers and communities have access to affordable and adequate
water.
_______________________________________________________________________
QUESTION - 2. According to the California Department of Fish and
Game, Fish Bulletin Number 17, The Sacramento-San Joaquin Salmon
Fishery of California (page 31), by 1928 there were ``very few'' salmon
remaining in the San Joaquin River above the Merced River and that the
historical salmon fishery that once existed had been severely depleted.
Considering this is 15 years before the construction of Friant Dam, how
would the Settlement change historical facts?
Answer: The Settlement will not change historical facts. Friant is
aware of the information contained in Bulletin Number 17 and generally
understands that fishery numbers fluctuate according to hydrology. In
this case the information is somewhat irrelevant because,
notwithstanding arguments to the contrary, the Judge ruled that the
Bureau of Reclamation had violated California Fish and Game Code
section 5937 by not releasing water to maintain an historic salmon
fishery. He scheduled a trial to determine the appropriate remedy (i.e.
how much water would be required to restore an historic salmon
fishery).
In light of these rulings, Friant expected the Judge to require
substantial releases for a salmon fishery and to retain jurisdiction to
adaptively manage such releases to meet the requirements of the law as
he had determined it to be. The immediate loss of water would have
resulted in severe adverse impacts to Friant's water supply, and those
impacts would have been compounded by uncertainty about the adequacy of
future supplies because they would been under the direct management of
the court. The Settlement avoids such uncertainty and removes ongoing
management from the jurisdiction of the Court.
_______________________________________________________________________
QUESTION - 3. What is a reasonable expectation of success relating
to reintroduction of spring-run Chinook salmon into the San Joaquin
River? How many naturally reproducing spring run Chinook salmon can we
expect to inhabit the San Joaquin River as a result of the proposed
restoration program?
Answer: I cannot answer the question because I do not know. Having
said that, I do understand that historically the spring run was the
most viable salmon run on the upper San Joaquin River. The Federal and
NRDC responses to the Committee contain more detailed information
regarding the expected number of salmon that the restoration effort
will generate.
From a Friant perspective, it is important to recognize one clause
in the Settlement (Paragraph 3) wherein the Parties acknowledge that
the restoration program may not be completely successful. Nevertheless,
the lawsuit is settled and the Friant Service Area can move on with our
lives with reasonable certainty as to the quantity and cost of our
water and with a new menu of programs to more effectively manage our
water supplies. The certainty provided by the Settlement is why the
Settlement is so important to Friant. A Court judgment would have
exposed Friant to more Court intervention, no caps on our water
releases, and no means to mitigate the losses.
_______________________________________________________________________
QUESTION - 4. Considering that restoration of a salmon run will
require consistent cold water flows, is there a plan to develop
temperature controls to eliminate impacts on downstream tributary
salmon runs? If so, what are the details of the plan?
Answer: Yes, the Settlement includes a number of provisions that
provide flexibility for management of the spring pulse flows.
Additionally, the experiments to be conducted with the Interim Flows
provided for in the Settlement will develop needed information to
better manage the flows to provide necessary temperature levels.
_______________________________________________________________________
QUESTION - 5. Would the funds authorized by the proposed settlement
legislation produce better results on streams other than the San
Joaquin River--in terms of increasing the population of the spring-run
Chinook salmon?
Answer: To my knowledge, no analysis was conducted relative to
funding improvements on other streams for the benefit of spring-run
Chinook salmon. The principal reason that such analysis has not been
done is because the litigation relates solely to how the State Law
(Section 5937) applies to Friant Dam. Throughout the current and past
settlement discussions, a number of restoration options were explored.
The Parties could not come to agreement on a restoration plan before
the Court ruled that Section 5937 required a salmon fishery.
_______________________________________________________________________
QUESTION - 6. Please identify how the terms of the Settlement will
provide water quality improvements in the Delta?
Answer: Please refer to the Federal and NRDC responses to the
Committee. In addition, I would add that this Settlement is not a water
quality program, but a restoration program. There may be some
incidental benefits to water quality in some areas. It is not known
whether Delta water quality will benefit from the Settlement. From an
intuitive perspective, it seems that if the Settlement results in more
fresh water flowing into the Delta, some beneficial effect on water
quality would result.
_______________________________________________________________________
QUESTION - 7. Is there a plan to address the groundwater overdraft
that will occur as a result of reduced water deliveries to the Friant
Division? If so, what are the details of the plan?
Answer: The Recovered Water Account (RWA) part of the Water
Management Goal called for in the Settlement is the vehicle to be used
for groundwater banking and in lieu deliveries to mitigate for the
groundwater overdraft. Those districts having the ability to recharge
have their own plans. This will be an essential part of the program to
mitigate other losses for all in the Friant Division. Districts not
having recharge capability can make arrangements for their RWA
entitlements to be traded with those districts with recharge
capabilities to ensure constituents of both districts receive adequate
and affordable water. I have great faith in the creativity of the water
management professionals within the Friant Division to take advantage
of these new tools to mitigate the impacts. Additionally, Friant will
continue to pursue development of programs and infrastructure beyond
those specified in the Settlement to augment our water supplies and
water management capability.
_______________________________________________________________________
QUESTION - 8. What are the estimated costs to implement the
restoration plan proposed in the Settlement? Please provide details on
how you developed the estimate?
Answer: There is a wide range (approximately $250 million to $800
million) of cost preliminary estimates for implementation of the
restoration goal of the Settlement. We will provide you further
information about how the preliminary estimates and the assumptions
were developed.
_______________________________________________________________________
QUESTION - 9. The proposed legislation submitted to Congress has a
provision of ``no private right of action.'' What prevents parties from
filing suit for more water after 2026? What prevents a third party from
filing suit in reference to NEPA compliance, or other applicable laws,
as feasibility studies are conducted on various aspects of the
Settlement?
Answer: I understand that this provision does not undermine any
existing private right of action. I defer to the technical response to
the Committee from the Federal parties.
_______________________________________________________________________
Thank you for the opportunity to participate in this important
process. I would be happy to answer any additional questions.
Sincerely
Kole Upton, Chairman,
Friant Water Users Authority
P.O. Box 575
Chowchilla, California 93610
cc: Lane Dickson, for Congressman Pombo,
Committee on Resources,
U.S. House of Representatives
______
Mr. Radanovich. Thank you, Mr. Upton. Mr. Hal Candee,
welcome to the Subcommittee. You may begin.
STATEMENT OF HAL CANDEE, SENIOR ATTORNEY, NATURAL RESOURCES
DEFENSE COUNCIL, SAN FRANCISCO, CALIFORNIA
Mr. Candee. Thank you very much. And I very much
appreciated the opening statements of each of the Members of
the Committee and Subcommittee. It was very encouraging, and I
appreciated hearing that.
Mr. Chairman and Members of the Subcommittee, my name is
Hamilton Candee, and I am a senior attorney with the National
Resources Defense Council, and co-director of NRDC's Western
Water Project.
For the past 18 years I have been a counsel of record in
this case, representing a coalition of 14 environmental and
fishing groups, which in turn represent over two million people
nationwide, and more than 250,000 Californians. Like Kole, I
have brought some helpers with me, and I want to introduce the
NRDC Senior Attorney, Kate Poole, NRDC Restoration Scientist,
Monty Schmitt, as well as Philip Atkins-Pattenson of the firm
Sheppard Mullin Richter & Hampton, who also represents the
coalition. All four of us have been involved in the settlement
negotiations that produced the agreement that is the subject of
today's hearing, and we are all available to help answer
questions today from the panel.
Over the past years some Members of this Subcommittee have
closely followed the progress of these settlement talks. And to
all of you and all of the Members of the Committee and the
public-at-large I want to say thank you for your patience. We
know you wanted to hear details earlier than we were able to
give them to you. We know you wanted to see a final agreement,
and we wanted to see one sooner. And we worked as diligently as
we could. As Kole mentioned, it has been 12 or 13 months.
But despite the fact that Friant and NRDC between us
reached agreement on a tentative settlement almost 10 months
ago, it has taken many more months of good-faith efforts, not
only with the Federal government, but also with the state
government, to develop a final consensus on all the key points.
And we believe that, although that process has been
difficult and exhausting, it is fair to say that all of the
settling parties believe we now have an improved and very
historic comprehensive agreement, one which will bestow
benefits on millions of Californians, while ending one of the
state's longest-running water disputes and preserving a vibrant
agricultural economy on the east side of the San Joaquin
Valley.
Kole has already described to you some of the details of
the settlement. And in the materials that we have submitted
there is a summary of the settlement, and I know that others
will get into that.
But first I wanted to talk briefly about the San Joaquin
River itself, and how it has been managed over the past 60
years, and why its restoration is so important not only to the
environmental groups and fishing organizations I represent, but
also to the State of California at large.
The San Joaquin is one of California's largest rivers, and
significantly is one of the two major tributaries to the San
Francisco Bay Delta Estuary, an estuary of international
ecological importance, and the source of drinking water for 23
million people.
The river originates in the High Sierra and flows east past
Fresno, west past Fresno, and then north through the heart of
the San Joaquin Valley until it joins the Sacramento River in
the Delta region.
In the early 20th Century the mighty San Joaquin supported
steamboat travel and commerce between San Francisco and Fresno.
And it teamed with wildlife, including one of the largest
Chinook salmon populations on the entire Pacific Coast.
By the early 1940s, when Friant Dam was built, the
steamboats were gone, the wildlife had diminished. But tens of
thousands of Spring Run Chinook salmon, as well as a smaller
fall run, still survived on the river. And in fact, they
continued to survive after the completion of Friant Dam. It
wasn't until the Bureau began diverting so much water from the
dam that 60 miles of river downstream were dried up, that the
salmon finally disappeared.
For the past half century, over 90 percent of the river's
flow in most years has been diverted at or immediately below
Friant Dam. But just as the operation of Friant Dam has
contributed to numerous problems downstream, and those are
referenced in more detail in my testimony, the operation of
Friant Dam under this settlement will be part of the solution
to these problems.
To illustrate some of the broad benefits of restoration and
to show how broad the support for settlement is, I have
attached to my testimony some materials that include a summary
of some of the many benefits from the settlement, recent news
clippings and editorials supporting the settlement, and also
statements of support from interested officials and
organizations throughout California. I would ask the Chair's
permission to have all of those attachments included within the
record.
Mr. Radanovich. Without objection, so ordered.
Mr. Candee. Thank you. One of the clippings I have attached
to this testimony is a very recent editorial from Stockton,
California, that discusses the vital importance of the
settlement to that city. Communities and farmers in the
Stockton area will see water quality and water supply benefits
from the settlement, particularly in the critical late-winter,
spring, and fall months, when elevated restoration flows will
significantly reduce salinity and provide much needed
assimilative capacity for long stretches of the river, which
are currently impaired.
Moreover, because restoration flows will help meet
regulatory requirements in the Delta, a corresponding water
supply benefit is expected for communities and farmers who
depend on New Melones Reservoir. This is just an example of
some of the benefits that are laid out in the materials I have
submitted.
On behalf of the Plaintiff Coalition, I would like to thank
you, Mr. Chairman, and Senator Feinstein for your leadership in
producing the settlement, and your support over the past year,
and your patience, as I mentioned before. And finally, I would
like to indicate that we at NRDC are extremely proud and
grateful to have been a part of bringing this settlement
together, and look forward to working with the Members of the
Committee to, as you say, get the final issues resolved and
take it to the last stretch.
Again, I have a longer statement submitted for the record.
But in conclusion, let me just say with your help and support,
the environmental and fishing community, the Friant water
users, the Federal government, and the State of California are
ready to begin the historic task of restoring the San Joaquin.
The parties intend that the settlement will be implemented
carefully to ensure that the broad benefits of river
restoration are realized for all Californians.
All of us at NRDC are grateful to have had the opportunity
to help make this day happen. Thank you for inviting us here to
testify. Thank you.
[The prepared statement of Mr. Candee follows:]
Statement of Hamilton Candee, Senior Attorney; Co-Director,
Western Water Project, Natural Resources Defense Council
Good morning, Mr. Chairman and Members of the Subcommittee. My name
is Hamilton Candee and I am a senior attorney with the Natural
Resources Defense Council (NRDC) and the Co-Director of NRDC's Western
Water Project in San Francisco. Thank you for the opportunity to
testify today in support of the historic settlement in NRDC v. Rodgers.
For the past 18 years, I have been a counsel of record in this case,
representing a coalition of 14 environmental and fishing groups which,
in turn, represent over 2 million people nationwide, and more than
250,000 Californians. With me today are NRDC senior attorney Kate Poole
and NRDC restoration scientist Monty Schmitt, as well as Philip Atkins-
Pattenson of the firm Sheppard Mullin Richter & Hampton, who also
represents the NRDC Coalition. All of us have been directly involved in
the extensive multi-party negotiation that produced the landmark
settlement that is the subject of today's hearing.
Over the past year, some members of this Subcommittee have closely
followed the progress of the settlement talks between the NRDC
Coalition, Friant Water Users, and federal government. To those
members, and to all of you here today, I want to thank you for your
patience. Despite the fact that NRDC and the Friant Water Users
Authority reached agreement on a tentative settlement almost 10 months
ago, it has taken months of good faith efforts by all sides, and
ultimately several State agencies, to develop consensus on all the key
points, including the authorizing legislation we are asking you to
approve.
While the process of achieving this remarkable consensus has been
difficult and exhaustive, I think it is fair to say that all of the
Settling Parties believe we now have an improved and very historic
comprehensive agreement, one which will bestow benefits on millions of
Californians while ending one of the state's longest running water
disputes and preserving a vibrant agricultural economy on the East Side
of the San Joaquin Valley.
We and others are submitting materials for the Record that will
address the framework and the details of settlement in greater detail.
However, I want to first briefly describe the San Joaquin River--how it
has been managed for the past 60 years; and why its restoration is so
important.
The San Joaquin is one of California's largest rivers, and
significantly, is one of two major tributaries to the Bay-Delta--an
estuary of international ecological importance, and the source of
drinking water for 23 million people. The river originates in the high
Sierra, and flows east past Fresno, and then north through the heart of
the San Joaquin Valley until it joins the Sacramento River in the Delta
region.
In the early 20th Century, the mighty San Joaquin supported
steamboat travel and commerce between San Francisco and Fresno; and it
teamed with wildlife, including one of the largest Chinook salmon
populations on the entire Pacific Coast. So abundant were these salmon
runs that farmers in the southern San Joaquin Valley used to pitchfork
the fish and feed them to hogs; and people who lived near the present
site of Friant Dam reported being kept awake at night by the thunderous
noise of spawning salmon. By the early 1940's when Friant Dam was
built, the steamboats were gone, the abundant wildlife had diminished,
but tens of thousands of spring run Chinook salmon, as well as a
smaller fall run, still survived in the river--and in fact, continued
to survive after completion of Friant Dam. It wasn't until the Bureau
of Reclamation began diverting so much water from the dam that 60 miles
of river downstream were dried up that the salmon finally disappeared.
For the past half century, over 90% of the river's flow in most
years has been diverted at or immediately below Friant Dam, mostly for
irrigation purposes. Other witnesses will surely speak to you about the
huge agricultural economy that has benefited from these diversions. But
these economic benefits came at a tremendous cost--to the environment,
to the recreational and commercial fishing industries, to groundwater
levels in areas adjacent to the river downstream of the dam, and to the
lower San Joaquin River and the Delta, where the de-watering of the
upper San Joaquin River has contributed to chronic water quality
impairments that adversely affect farmers and communities in San
Joaquin county, and millions of people who rely on the Delta for
drinking water. But just as the operation of Friant Dam has contributed
to these serious problems, the operation of Friant Dam under this
historic settlement will be part of the solution to these problems.
To illustrate the broad benefits of restoration and to show the
remarkably broad support for the Settlement and the Restoration Effort
it provides for, I have attached to my testimony some materials that
include a summary of the broad benefits of this settlement, recent news
clippings and editorials, and statements of support from interested
officials and organizations from throughout California. I would ask the
Chair's permission to have all of the attachments to my written
Statement included in the final record of this Hearing.
One of the clippings I have attached to this testimony is a very
recent editorial from Stockton, California that discusses the vital
importance of the settlement to that city. Communities and farmers in
the Stockton area will see water quality and water supply benefits from
the settlement, particularly in the critical late winter, spring and
fall months, when elevated restoration flows will significantly reduce
salinity and provide much-needed assimilative capacity for long
stretches of the river--from Mendota Pool all the way to Vernalis--
which are currently impaired for several pollutants. Moreover, because
restoration flows will help meet regulatory requirements in the Delta,
a corresponding water supply benefit is expected for the communities
and farmers who depend on New Melones Reservoir for their water. These
water quality and water supply benefits will extend to the many state
and federal water contractors who rely on the Delta pumps.
Communities and farmers downstream of Friant Dam will be
strengthened by a living river, instead of a polluted drain, flowing
through the heart of the Valley and into the southern Delta. The
fragile Delta ecosystem and San Francisco Bay will receive a life-
giving infusion at a time when this critical estuary desperately needs
it. And for salmon fishermen and North Coast fishing communities whose
livelihoods once depended on the San Joaquin River's legendary spring-
run salmon, this settlement heralds a return of the spring run and an
important step forward in rebuilding our recreational and commercial
fisheries. It is because of the broad benefits of San Joaquin River
restoration for our environment, our quality of life and our economy,
that an almost unprecedented array of stakeholders from one end of the
state to the other is supporting this settlement. A list of those
supporters is included in the attachments we have provided to the
subcommittee.
On behalf of the plaintiff coalition, I would like to thank two of
key players in producing this settlement whose support has been
especially important, Chairman Radanovich and Senator Feinstein who not
only sponsored the talks that led to the settlement, but have
consistently supported the fragile consensus that began to emerge from
these talks. With this remarkably broad support, we can now move ahead
to tackle the next important steps in this cooperative restoration
effort. Restoring the San Joaquin will be one of the largest and most
important salmon restoration efforts ever undertaken. It is hard to
find a river this large anywhere that has been literally dry for half a
century and then brought back to life. It is equally hard to find a
restoration project with such profound and far-reaching benefits.
Nevertheless, we understand that this dramatic change, while
supported by the overwhelming majority of stakeholders and beneficial
to millions of Californians, must be carefully implemented in light of
its potential to impact some third parties. Mindful of that potential,
the Settling Parties have spent much of the past several months
reaching out to third-party stakeholders, briefing them on the
settlement, discussing their concerns, and where appropriate, modifying
the settlement to incorporate their perspectives and interests. Here
are some specific examples:
1. To address concerns by downstream landowners and the local
levee district that restoration not cause flows to exceed the river's
flood carrying capacity, the settlement expressly requires increased
channel capacity and levee work that will not only ensure safe
conveyance of restoration flows, but will also improve flood protection
for these downstream areas. This settlement will help fund those flood
improvements for downstream landowners.
2. Landowners who farm in the area known as Reach 4B have
expressed opposition to restoring flows to this reach of the river, and
have urged the settling parties to consider routing flows and fish
around the area by using the flood bypass system. Among the reasons
they have offered is their belief that restored flows could result in
crop damage to adjacent lands, and their contention that channel
capacity is so degraded in this reach that massive and costly re-
construction work would be required. Although we believe the natural
river channel is preferable to using a flood control bypass and will
not be nearly as problematic as these parties contend, NRDC has
nonetheless agreed that the Secretary of Interior has discretion to
choose an alternate course if it proves to be a more viable and
effective way of meeting the restoration objective. To address the
concern by some stakeholders about ensuring an effective voice in the
implementation process, several provisions were included. First, the
settlement was clarified to ensure full environmental compliance,
including full NEPA compliance, ensuring that as projects move forward
the impacts will be publicly assessed and interested parties will have
a meaningful public forum in which to engage. Further, the Settling
Parties have entered an MOU with state agencies which requires the
engagement of stakeholders regarding the implementation activities of
the state and federal agencies. The Settling Parties do not believe,
nor intend, that the settlement will have any material negative impacts
on third parties. We are committed to ongoing outreach and engagement
with all San Joaquin River stakeholders in implementing the settlement,
and continue to believe that this settlement will significantly benefit
even the few third-party stakeholders who are raising concerns about
it. These benefits are summarized in one of our attachments. The vast
majority of third party stakeholders recognize these benefits and
support this settlement. It is important to keep in mind, as many third
parties have already acknowledged, that the status quo of the past 50
years is going to change regardless of this settlement, and in many
ways this settlement will help third parties in managing those future
changes. For example, the Central Valley Regional Water Quality Control
Board is in the process of setting legally-mandated water quality
objectives for salt and boron upstream of Vernalis and into the reaches
of the San Joaquin River where the some west side districts farm and
discharge very salty agricultural runoff. When these objectives are
set, it may be challenging for some west side districts who rely on
Delta water to achieve water quality compliance in these areas without
spending increased amounts on elaborate treatment and disposal
programs. With the settlement, these same districts could receive tens
of millions of dollars in benefits from the release of clean water from
the upper San Joaquin and in some cases having their facilities brought
into compliance with our state's water quality laws. This is one reason
many downstream interests have welcomed the possibility of an infusion
of clean Sierra snowmelt to increase the assimilative capacity of the
river and better enable the attainment of water quality standards.
In conclusion, with your help and support, the environmental and
fishing community, the Friant Water Users, the federal government and
the State of California are ready to begin this historic task of
restoring the San Joaquin. The parties intend that the Settlement will
be implemented carefully to ensure that the broad benefits of San
Joaquin River restoration are realized for all Californians. All of us
at NRDC are grateful to have had the opportunity to help make this day
happen. Thank you for inviting us here to testify. As I indicated, we
would be happy to answer any questions.
[NOTE: Attachments to Mr. Candee's statement have been retained in
the Committee's official files.]
______
[The response to questions submitted for the record by Mr.
Candee follows:]
Additional Questions for Witnesses
Hearing on the San Joaquin River Settlement
Before the Subcommittee on Water and Power
Thursday, September 21, 2006
Answers by Natural Resources Defense Council--October 20, 2006
1. Based on the terms of the Settlement, has an analysis been
completed on the potential water losses on a district-by-district level
and water user-by-water user level? If so, can you provide a copy of
that analysis to the Committee?
The Friant Water Users recently modeled the division-wide water
delivery impacts that would come from the Restoration Flows called for
under the Settlement and concluded that, in the absence of mitigation
measures, implementation of the Settlement would be expected to reduce
Friant Division long-term water contractor deliveries, on average, by
about 170,000 acre feet each year (15 % of the 1,150,000 acre feet of
average deliveries to Friant Division long-term contractors). Through
creative water management strategies, Friant will work to minimize the
impact of these delivery reductions.
2. According to the California Department of Fish and Game, Fish
Bulletin Number 17, The Sacramento-San Joaquin Salmon Fishery of
California (page 31), by 1928 there were ``very few'' salmon remaining
in the San Joaquin River above the Merced River and that the historical
salmon fishery that once existed had been severely depleted.
Considering this is 15 years before the construction of Friant Dam, how
would the Settlement change historical facts?
The Settlement would not change historical facts. While G.H.
Clark's description in Fish Bulletin Number 17 indicates a very small
salmon run in a single year following several consecutive dry years, it
is not surprising that salmon runs were depleted during this historic
drought period. Salmon populations can vary significantly from year to
year based on several factors, including droughts. Within a few years
after the drought ended, however, the San Joaquin River's salmon runs
rebounded and by the 1940s thousands of Chinook salmon were once again
migrating up the San Joaquin River, including 35,000 in 1943 and 56,000
in 1945.
3. What is a reasonable expectation of success relating to
reintroduction of spring-run Chinook salmon into the San Joaquin River?
How many naturally reproducing spring-run Chinook salmon can we expect
to inhabit the San Joaquin River as a result of the proposed
restoration program?
We expect that the precise number of adult Chinook salmon that will
migrate up the San Joaquin River under the Restoration Program will
vary significantly from year to year, as the salmon populations did
historically, and as other salmon populations do today. The Settling
Parties agree that a minimum number of spawning fish will be needed to
maintain the genetic integrity of the population, and the Settlement
reflects the Settling Parties' goal of not allowing the restored salmon
populations to fall below such a minimum number. The Settlement also
calls for a future process to set more specific targets and goals for
the Restoration Program. The fact that Chinook salmon existed in the
river for several years after the completion of Friant Dam with
population numbers ranging from 5,000 to 56,000 suggests the potential
for actual population numbers that will be significantly higher than
any minimum population level that is used.
4. Considering that restoration of a salmon run will require
consistent cold water flows, is there a plan to develop temperature
controls to eliminate impacts on downstream tributary salmon runs? If
so, what are the details of the plan?
We believe that the Settlement will complement, not adversely
impact, downstream salmon restoration efforts. Toward that end, it is
important to note that ``consistent cold water flows'' are not required
at all times throughout the San Joaquin River system. When and where
cold water is required depends on specific salmon life stage needs and
salmon migration patterns. The Settling Parties have structured the
Settlement to address these water temperature needs and migration
patterns. For example, the hydrographs and restoration actions under
the Settlement are designed to ensure out-migration of juvenile salmon
during the period from approximately February through mid-April in most
years, when ambient air temperatures are generally cool enough to
preclude water temperature problems for salmon. Higher restoration
flows are concentrated in this cooler out-migration period, and then
quickly ramped down in most years. This strategy not only helps ensure
success of reintroduced salmon on the upper San Joaquin River; it also
avoids potential temperature impacts for downstream tributary salmon.
The Settlement also provides for buffer flows and flexibility measures
to ensure that temperature objectives are met in key fall and late
spring periods. Further, the Settlement calls for coordination of
restoration efforts on the San Joaquin with fishery restoration actions
on the downstream tributaries.
5. Would the funds authorized by the proposed settlement
legislation produce better results on streams other than the San
Joaquin River--in terms of increasing the population of spring-run
Chinook salmon?
Restoring the San Joaquin River will open up over 200 miles of
river for threatened spring-run Chinook salmon, as well as other listed
and non-listed fish species, to re-occupy. The Settling Parties are
unaware of any other spring-run Chinook salmon restoration opportunity
of this magnitude. Further, the San Joaquin River is uniquely important
to the recovery of spring-run Chinook salmon because it once sustained
the majority of the Central Valley's spring-run population. By re-
opening this historically dominant portion of the fish's range, the
Settlement represents an important step toward the eventual recovery
and delisting of spring-run Chinook salmon.
6. Please identify how the terms of the Settlement will provide
water quality improvements in the Delta?
The San Joaquin River is one of two main arteries to the
Sacramento-San Joaquin Delta. The increased volume of clean water in
the San Joaquin River from Restoration Flows will provide a much needed
boost in the River's assimilative capacity, especially in the late
winter, spring, and fall months when Restoration Flows are highest.
This has the potential to help address, among other things, the serious
salt and boron impairment that exists from Mendota Dam to Vernalis in
the south Delta. In some of these areas, the improvements could be
dramatic because Friant water is extremely low in salt (about 50
``mhos/cm). It is anticipated that the Interim Flows called for by the
Settlement will be used, in addition to other purposes, to determine
water quality impacts more precisely.
7. Is there a plan to address the groundwater overdraft that will
occur as a result of reduced water deliveries to the Friant Division?
If so, what are the details of the plan?
Through careful and creative water management, and through the
water management programs provided under the Settlement, the Settling
Parties believe that additional groundwater overdraft can be mitigated
or avoided. The Recovered Water Account created under the Settlement
will provide access to low-cost water supplies that will enable
expansion of the existing groundwater recharge efforts with the Friant
service area. Moreover, the passive groundwater recharge provided by
Restoration Flows will increase groundwater storage in some areas
currently suffering from groundwater overdraft.
8. What are the estimated costs to implement the restoration plan
proposed in the Settlement? Please provide details on how you developed
the estimate?
The Settling Parties have carefully studied San Joaquin River
restoration for many years and, as part of this Settlement, have
identified the actions and highest priority projects necessary to
achieve restoration as provided in the Settlement. Preliminary cost
estimates to complete these actions and projects were developed ranging
from $250 million to $800 million. The largest variables in this range
are the assumptions as to the specific type and extent of levee work
that may be required in connection with some of the projects. The
California Department of Water Resources, which has responsibilities
related to levees and flood protection, has reviewed the Settlement and
provided its own preliminary cost estimate in the range of
approximately $350 million to $570 million. More precise cost estimates
will be completed in the course of project-specific planning
activities, which will occur as part of Settlement implementation.
9. The proposed legislation submitted to Congress has a provision
of ``no private right of action.'' What prevents parties from filing
suit for more water after 2026? What prevents a third party from filing
suit in reference to NEPA compliance, or other applicable laws, as
feasibility studies are conducted on various aspects of the Settlement?
The Settlement specifies a procedure by which the Settling Parties
may move the court or bring a new action after December 31, 2025 to
change the Restoration Flows established by the Settlement. Neither the
Settlement nor the proposed legislation limit or preclude any rights or
causes of action that a third party might have under existing law.
Moreover, nothing in the Settlement or proposed legislation prevents
affected third parties from exercising their legal rights under other
applicable laws, such as NEPA. The referenced provision in the proposed
legislation only specifies that the legislation does not create a new
right of action.
______
Mr. Radanovich. Thank you, Mr. Candee, for your testimony.
Next is Mr. Jason Peltier.
Mr. Peltier, welcome to the Committee.
STATEMENT OF JASON PELTIER, PRINCIPAL DEPUTY ASSISTANT
SECRETARY FOR WATER AND SCIENCE, DEPARTMENT OF THE INTERIOR,
WASHINGTON, D.C.
Mr. Peltier. Thank you, Mr. Chairman, for the opportunity
to represent the Department here today in support of the
settlement agreement.
I would like to start by recognizing that along with me are
Kirk Rodgers, the Regional Director of the Bureau of
Reclamation in Sacramento; Barbara Geigle from the Solicitor's
Office; and Steve MacFarlane from the Department of Justice.
Those three played essential on-the-ground roles in getting
this settlement achieved.
I think it is important to look at the broader conflict
that is being settled here. In fact, in many ways it is a post-
child kind of a conflict over a water resource and the
environment. And that is why, poster child and very complex and
very big, that is why it has taken us so long to find our way
out of the forest into the world of settlement.
Hopefully, the settlement can also be looked at as a poster
child: a poster child of collaboration among the parties, a
poster child of recognizing the common interests, common needs,
interests, and desires of the settling parties and the broader
public.
I should make clear that this is a settlement of
litigation. As we move forward and have discussions about
specific legislation to implement that settlement, the
legislation will be about settling the litigation. It will not
be a, it will set a foundation for a restoration program.
As we go forward, there are a lot of decisions to be made.
There is a lot of work to be done, years of work to be done, to
sort out exactly how it will affect this restoration program.
In that work I think it is essential, I know the agencies are
committed and the settling parties are committed to have a
broad, open, public process where the interests and concerns of
all are at the table, the expertise of all is at the table, and
the decisions are made in an open fashion with regard for the
interests of all.
It is only through, I think, that kind of open process,
where there is broad ownership of the settlement, of the
restoration program, of the water management efforts, that we
will go forward successfully. If we are unsuccessful in
addressing the concerns of the third parties, there is some, I
suppose, chance that legislation could get through Congress at
some point in the future implementing the settlement. But that
would be setting, we would then have set the stage for a very
complex and difficult implementation process.
I think we need to look forward to implementation. Central
to implementation is the successful resolution of third-party
interests and concerns, and their successful engagement in the
process moving forward. That broad ownership will assure that
not just today, tomorrow, next Congress, but 20 years from now,
all folks are still working together.
I would like to thank, in addition to the folks I have
already mentioned, there are a lot of people within the
Reclamation and Fish and Wildlife Service, NOAA Fisheries, OMB,
Justice, CEQ, that have been focused on this effort, and have
been asking tough questions, tough questions about uncertainty,
tough questions about risk, the risk of what happens if we
don't go forward with the settlement. That testing that we have
gone through in the Administration in getting approval and
support within the Administration I think has been very
valuable as a demonstration of the strength of the settlement
agreement.
I would like to close by saying that the Friant Division of
the Central Valley Project has been a fabulously successful
public work. It has brought irrigation water into the post-war
era, and that area from Chowchilla south to Bakersfield saw a
boom of agricultural development of small farms, community
growth, and economic growth that is a fabulous picture of what
the reclamation program is all about.
Today our challenge is to make sure that we maintain those
benefits, maintain that vibrant economy, while achieving some
broader public goals, goals about a river flowing, about a
salmon fishery returning, that reflect changing public values.
Thank you very much.
[The prepared statement of Mr. Peltier follows:]
Statement of Jason Peltier, Principal Deputy Assistant Secretary for
Water and Science, U.S. Department of the Interior
Mr. Chairman and members of the Subcommittee, I appreciate the
opportunity to appear before you today to discuss the proposed
settlement of Natural Resources Defense Council (NRDC), et al. v. Kirk
Rodgers, et al.,. During the eighteen years since this case was filed,
relations between stakeholders in the San Joaquin River basin,
including the State of California, Reclamation water users,
environmentalists, and Federal agencies, have often been contentious.
However, through the good faith efforts of the ``Settling Parties,''
namely NRDC, Friant Water Users Authority (FWUA), and representatives
of the Bureau of Reclamation, Fish and Wildlife Service, National
Marine Fisheries Service, and the Department of Justice for the United
States, an opportunity has been seized to resolve this litigation in a
way that will both restore the San Joaquin River and increase certainty
to farmers that they will continue to be able to access the water
supplies upon which they rely. A Stipulation of Settlement (Settlement)
and draft Federal implementing legislation have been filed with U.S.
District Court. My testimony today will provide an overview of this
proposed settlement.
Brief Background
The Bureau of Reclamation has water service contracts with 28
entities made up of cities and water districts of various sorts that
rely on the water supply from the Friant Division, one of the key
features of the Central Valley Project. Friant Dam is located on the
upper San Joaquin River, where it forms Millerton Lake, and became
fully operational in the late 1940s. Our understanding is that about
15,000 farms rely on Friant water supplies.
Except for flood-control operations, Friant Dam/Millerton Lake is
operated to maximize water deliveries which result in approximately 60
miles of the river being dried up in most years, except during seasonal
flood control releases.
In 1988, a coalition of environmental groups led by NRDC filed suit
challenging the federal defendants' compliance with the National
Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) in
connection with their renewal of the long-term water service contracts
between the United States and the Central Valley Project, Friant
Division contractors. Most of the Friant Division long-term contractors
intervened as additional defendants.
Through amended complaints the plaintiffs subsequently included a
claim asserting that the federal defendants must operate Friant Dam in
accordance with California Fish and Game Code Sec. 5937, which requires
the owner or operator of any dam in California to allow sufficient
water to flow through or around the dam in order to keep the downstream
fishery in ``good condition.'' During the initial phase of the
litigation, the District Court ruled that the contracts were not
entered into in violation of NEPA requirements, but held that approval
of the renewal contracts violated procedural requirements of the ESA.
On June 24, 1998, the Ninth Circuit Court of Appeals affirmed most of
the District Court's rulings but remanded to the District Court the
issue of the applicability of Sec. 5937 to the operation of Friant Dam.
From 1998 to 2003, without direct involvement by Federal
defendants, FWUA and NRDC attempted to settle the remanded issue. In
2003, those discussions were terminated, and on July 19, 2003, the
plaintiffs amended their complaint by adding the Secretary of Commerce
and the National Marine Fisheries Service as additional defendants and
adding claims asserting that the long-term renewal contracts do not
conform to the requirements of the Central Valley Project Improvement
Act (CVPIA). In an Order issued on August 27, 2004, Judge Karlton
concluded that Reclamation violated Sec. 5937, and scheduled a trial on
the issue of remedy for that violation.
During the summer of 2005, at the request of Subcommittee Chairman
George Radanovich and Senator Diane Feinstein, FWUA and NRDC
reinitiated settlement discussions. In November 2005, the Federal
government was invited into those discussions, and in spring 2006, the
State of California was also approached about the negotiations since
the negotiators foresaw that the State would have a significant role in
the implementation of any settlement. On September 13, 2006, the
Settling Parties filed the Settlement, including proposed Federal
implementing legislation, with the Court. The Settlement Agreement is
based on two goals and objectives:
1. A restored river with continuous flows to the confluence of the
Merced River and naturally reproducing and self-sustaining populations
of Chinook salmon.
2. A water management program to minimize water supply impacts to
Friant Division long-term contractors.
Restoration Goal
The Settling Parties have carefully studied San Joaquin River
restoration for many years and as part of the Settlement have
identified the actions and highest priority projects necessary to
achieve the restoration goal. These include among others: expanding
channel capacity, improving levees, and making modifications necessary
to provide fish passage through or around certain structures in the
river channel. Also called for are year-round flows in the San Joaquin
River, including those areas that have been without continuous flows
for decades, to sustain naturally reproducing Chinook salmon and other
fish populations in the 153-mile stretch of the river between Friant
Dam and the confluence of the Merced River.
Water Management Goal
Recognizing that the Settlement's Restoration Flows will reduce the
amount of water available for diversion at Friant Dam, the Settlement
also includes provisions to protect water availability for the 15,000
small farms that currently rely on these supplies. One million acres of
the most productive farmland in the country as well as many towns and
cities along the southern San Joaquin Valley's East Side receive all or
a major portion of their water supplies from the Friant Division. The
Settlement recognizes the importance of this water to those farms and
calls for development of water management solutions to provide these
users water supply certainty for the long term. Such a program would
include a Recovered Water Account to make surplus water available at a
reduced rate to farmers who have contributed water to the Restoration
Flows and a flexible combination of recirculation, recapture, reuse,
exchange and/or transfer programs. Additional storage such as
groundwater banking may also be explored.
Phased Approach
Restoring continuous flows to the approximately 60 miles of dry
river will take place in a phased manner. Planning, design work, and
environmental reviews will begin immediately, and interim flows for
experimental purposes will start in 2009. The flows will be increased
gradually over the next several years, with the goal of reintroducing
salmon by December 31, 2012.
The flow regime called for in the Settlement continues unchanged
until 2026, with the U.S. District Court retaining jurisdiction to
resolve disputes arising under the Settlement. After 2026, the court,
in conjunction with the California State Water Resources Control Board,
could consider any requests by the parties for changes to the
Restoration Flows.
Restoration Funding
The Settlement identifies a number of funding sources to support
implementation of these projects, including current payments from
farmers and cities served by Friant Dam, state bond initiatives, and
authorization for federal appropriations--although without a commitment
to appropriate federal funds. These funds are to be used to meet both
the Water Management and Restoration goals.
More specifically, the Settlement envisions the continuation of and
the dedication of the ``Friant Surcharge,'' a CVPIA environmental fee
of $7 per acre foot of water delivered to Friant Contractors that is
expected to average about $8 million per year ($160 million over the
20-year period), and up to $2 million annually of other CVPIA
Restoration Fund payments made by Friant water users under the CVPIA
for use by the program ($40 million over the 20-year period).
It also calls for the dedication of the capital component of water
rates paid by Friant Division water users to the program for 9 years
($90 million over the 10-year period). These are funds that at present
go to the U.S. Treasury to repay the capital costs of construction in
the Friant Division; these funds, instead of going to the Treasury,
would directly pay for implementing the Settlement. The Settlement
provides that the monies contributed to the Settlement from the Friant
Surcharge, Restoration Fund payments, and capital repayment obligation
may be used to fund bonds, guaranteed loans or other finance
instruments issued by agencies or subdivisions of the State of
California. The Settlement anticipates fiscal participation by the
State of California as well.
The Settling Parties have agreed on a suite of actions to be taken
to restore flows and salmon runs, but those actions still contain
significant uncertainty. The proposed actions are nowhere near as
detailed, for instance, as would be found in a Feasibility-level study
for a Reclamation project. However, some parties have provided an
extremely rough estimate for total costs of $600 million. It is
possible or even likely that these costs will go up as the project
details become firm.
This uncertainty in project costs has been a source of concern to
both the Administration and the State of California. As project
partners, we realize that federal appropriations may be integral to
implementing the settlement. However, the Administration is not willing
to commit to seeking any particular level of funding. All the parties
to the settlement must realize that implementation of this settlement,
including any authorizing legislation, does not imply a limitless
federal commitment to fund whatever it costs.
Third Parties
Prior to the execution of the settlement documents, copies of the
draft documents were made available in Sacramento, Fresno, and San
Francisco for review by interested third parties, subject to
confidentiality agreements. Representatives of water users on the west
side of the Central Valley; water users from tributaries to the San
Joaquin River downstream of Friant Dam; the Exchange Contractors, who
receive water from the Delta in lieu of water they would otherwise
divert from the San Joaquin River below Friant Dam; and other parties
concerned about river management issues (collectively, ``Third
Parties'') have taken the opportunity to review the Settlement
documents. In addition, the Settling Parties have conducted numerous
briefings throughout the Central Valley, which have been attended by
approximately 70 Third Party representatives. At those briefings, the
Settling Parties walked through the proposed Settlement in detail,
responded to questions, and listened to comments. Following those
briefings, a number of the Third Parties submitted written comments on
the Settlement documents. Their primary areas of concern were related
to the ESA take provisions, operation & maintenance, funding,
meaningful participation in implementation of the program, and water
rights. After consideration of comments from Third Parties, the
Settling Parties made modifications deemed appropriate to some of the
settlement documents and further provided the Third Parties with a
comprehensive written response to their written comments.
Conclusion
This monumental agreement ends an 18-year legal dispute over the
operation of Friant Dam and provides increased certainty to Friant
Division farmers who rely on CVP water deliveries while returning flows
and salmon runs back to the San Joaquin River. We look forward to
working with the Committee on implementing legislation that reflects
the settlement, protects taxpayer interests, and effectively achieves
the settlement's goals. We believe that this historic agreement is the
start of a truly collaborative process that will result in a restored
river for all.
Mr. Chairman, this concludes my testimony.
I would like to reiterate my appreciation to the subcommittee for
your interest in this settlement. I would be happy to answer any
questions at this time.
______
[The response to questions submitted for the record by Mr.
Peltier follows:]
Additional Questions for Witnesses
Hearing on the San Joaquin River Settlement
Before the Subcommittee on Water and Power
Thursday, September 21, 2006
These follow-up questions were submitted by Rep. Devin Nunes on
October 5, 2006, to all witnesses who testified before the Subcommittee
on Water and Power:
1. Based on the terms of the Settlement, has an analysis been
completed on the potential water losses on a district-by-district level
and wateruser-by-wateruser level? If so, can you provide a copy of that
analysis to the Committee.
Reclamation has not performed a district-by-district level or
wateruser-by-wateruser level analysis on the potential water losses.
The Friant Parties completed modeling of the water delivery impacts
that would result from the Settlement to the Friant Division as a whole
and concluded that in the absence of measures to reduce or avoid
impacts, implementation of the Settlement would be expected to reduce
Friant Division long-term water contractor deliveries, on average, by
about 170,000 acre feet each year (15% of the 1,150,000 acre feet of
average deliveries to Friant Division long-term contractors). The
extent of the impact on any particular district will be influenced by
the development of measures to reduce or avoid impacts as part of the
Water Management Goal, such as the groundwater banking and recharge
opportunities in wet years, referenced below in the answer to question
7. The impact on individual districts will also be influenced by
cooperative arrangements that we understand will be pursued among
Friant districts to minimize impacts.
2. According to the California Department of Fish and Game, Fish
Bulletin Number 17, The Sacramento-San Joaquin Salmon Fishery of
California (page 31), by 1928 there were ``very few'' salmon remaining
in the San Joaquin River above the Merced River and that the historical
salmon fishery that once existed had been severely depleted.
Considering this is 15 years before the construction of Friant Dam, how
would the Settlement change historical facts?
In the Fish Bulletin Number 17 article, G.H. Clark described a
trend in the San Joaquin River spring-run Chinook salmon population
that still occurs with the fall-run Chinook salmon populations in the
San Joaquin Basin. Since the escapement surveys began in 1940, fall-run
salmon abundance has been high for a period of 2.5 years following high
spring flows during wet years and their abundance has been low for a
period of 2.5 years following low spring flows during critical and dry
years. The decline in the spring-run population that Clark reported
during the late 1920s occurred during several consecutive dry years,
whereas the population rebounded to 56,000 fish in 1945 following three
consecutive wet years.
3. What is a reasonable expectation of success relating to
reintroduction of spring-run Chinook salmon into the San Joaquin River?
How many naturally reproducing spring-run Chinook salmon can we expect
to inhabit the San Joaquin River as a result of the proposed
restoration program?
We expect that the spring-run population will fluctuate between
several hundred fish following critical water year types and several
thousand fish following wet water year types. Our basis for these
estimates is that in dry and wetter years, the San Joaquin River
Restoration flows are similar to or greater than the flows that
occurred in Butte Creek from 2000 to 2005, when Butte Creek spring-run
escapement averaged about 7,500 spring-run fish. However, following
critical-low and critical-high water year types when Restoration Flows
will be low, we expect that several hundred fish will return to the San
Joaquin River.
4. Considering that restoration of a salmon run will require
consistent cold water flows, is there a plan to develop temperature
controls to eliminate impacts on downstream tributary salmon runs? If
so, what are the details of the plan?
The Settling Parties do not believe that implementation of the
Restoration Flows will adversely impact downstream tributary fall run
Chinook salmon. However, we will work with those managing downstream
tributary salmon runs to determine if there are effects of the
Restoration Flows on those runs, and how to eliminate impacts to the
extent they exist. Further, the Stipulation of Settlement under
Paragraph 15 ``Interim Research Program And Releases'' calls for
implementation of a program of Interim Flows in order to collect
relevant data concerning flows, temperatures, fish needs, seepage
losses, recirculation, recapture, and reuse.
5. Would the funds authorized by the proposed settlement
legislation produce better results on streams other than the San
Joaquin River--in terms of increasing the population of spring-run
Chinook salmon?
There are few opportunities in the Central Valley to restore
populations of spring-run Chinook salmon. All of these opportunities
are being pursued in the Sacramento River Basin and several are well
underway (like Butte Creek) or planned with funding identified (like
Battle Creek). The existing populations of spring run and all other
opportunities to restore spring run are in close geographic proximity
to one another. Because the San Joaquin River is geographically distant
from existing populations of spring-run Chinook salmon as well as
within their historic range, restoring a self-sustaining population to
the San Joaquin River will alleviate dependence upon habitat conditions
at other locations. This provides a unique opportunity in terms of
increasing the resiliency of the overall spring-run population in the
Central Valley.
6. Please identify how the terms of the Settlement will provide
water quality improvements in the Delta.
The terms of the Settlement among other things call for certain
restoration flow hydrographs which are expected to create a continuous
and perennial hydrologic connection to the main stem San Joaquin River
and therefore the Delta. Although we have not yet fully analyzed the
extent of expected water quality improvements in the Delta, the source
water associated with the restoration flows is typically superior in
quality to water diverted directly from the southern Delta.
7. Is there a plan to address the groundwater overdraft that will
occur as a result of reduced water deliveries to the Friant Division?
If so, what are the details of the plan?
The Stipulation of Settlement under Paragraph 16 calls for the
creation of a Recovered Water Account. Friant contractors who have
reduced deliveries as a result of the Restoration Flows will be
eligible to purchase unstorable water for $10 an acre foot, which is
significantly less than current prices. The intent of making this water
available at a lower price is to encourage ground water recharge
programs which in the past may not have been financially feasible. In
addition, the Settlement provides for the development of a plan to
reduce or avoid impacts of water deliveries to all of the Friant
Division long term contractors caused by the Interim Flows and
Restoration Flows.
8. What are the estimated costs to implement the restoration plan
proposed in the Settlement? Please provide details on how you developed
the estimate?
Preliminary cost estimates to complete restoration actions and
projects were developed ranging from $250 million to $800 million.
Representatives of the Settling Parties met with staff from the
California Department of Water Resources (DWR), which has
responsibilities related to levees and flood protection in much of the
restoration area, to discuss the actions necessary to implement the
Restoration Goal. DWR's preliminary cost estimates for implementation
of the Restoration Goal is approximately $350 million to $570 million.
The largest variables in these estimates are the assumptions as to the
specific type and extent of levee work that may be required in
connection with some of the projects. More precise cost estimates will
be completed in the course of project-specific planning activities,
which will happen as part of Settlement implementation.
9. The proposed legislation submitted to Congress has a provision
of ``no private right of action.'' What prevents parties from filing
suit for more water after 2026? What prevents a third party from filing
suit in reference to NEPA compliance, or other applicable laws, as
feasibility studies are conducted on various aspects of the Settlement?
Paragraph 20 of the Stipulation of Settlement governs the procedure
by which the Settling Parties may move the court (after December 31,
2025, and before July 1, 2026), or bring a new action (after July 1,
2026) to alter the flow regime established by the settlement, if such
an alteration is not mutually agreed upon. It does not limit any rights
or causes of action, if any, that a third party might have under
existing law.
The proposed legislation does not eliminate any rights or causes of
action under existing law; nor does it create new rights or causes of
actions. It is anticipated that affected third parties would be able to
seek review of settlement implementation actions under NEPA and other
applicable law, to the extent allowed by such law and the
Administrative Procedure Act.
______
Mr. Radanovich. Thank you, Mr. Peltier, for your testimony.
Next is the Hon. Mike Chrisman, Secretary of the Resources
Agency, State of California.
Mr. Chrisman, welcome to the Subcommittee. You may begin.
STATEMENT OF THE HON. MIKE CHRISMAN, SECRETARY, RESOURCES
AGENCY, STATE OF CALIFORNIA, SACRAMENTO, CALIFORNIA
Mr. Chrisman. Thank you, Mr. Chairman. Thank you for the
opportunity to testify today.
Joining me in the room are Nancy Saraceno, the Chief Deputy
Director of the Department of Water Resources, and someone not
unfamiliar to you, John McKalein, who is the Chief Deputy
Director in the Department of Fish and Game. They are joining
me today, and will be part of the question-and-answer period if
so needed.
So again, nice to be here today, and I appreciate the
opportunity to appear before you to discuss this truly
historical restoration.
This, I think as all have said, this is truly a significant
achievement with lasting positive impacts on the fisheries and
the natural environment, while at the same time protecting
farmers and the Central Valley economy. The two have to go hand
in hand in this historic settlement.
It creates a clear obligation to the settling parties, but
more importantly an incredible opportunity to achieve a
historic restoration of a magnificent Western river.
The State of California has joined with Federal agencies
and other settling parties to sign the memorandum of
understanding to help implement the stipulation agreement. The
plan enhancements on the state's second-largest river will have
exceedingly far-reaching impacts.
State agencies, including the California Resources Agency,
the California Environmental Protection Agency, Department of
Water Resources, and Department of Fish and Game, and the
settling parties have pledged to work collaboratively to plan,
design, and fund and implement actions to support this
important restoration project.
A key goal of the settlement is to minimize the impacts to
water users who depend on the San Joaquin River. Under this
plan, farmers will achieve assurances of water supply and cost.
The state will help identify special projects and actions to
meet these important objectives.
Additionally, improvements on the San Joaquin River will
focus on ecosystem restoration, to return the river to more
natural conditions. The state will help design and to construct
facilities to provide fish passage, minimum fish entrainment,
establish riparian habitat, implement the best available
science and monitoring procedures so the system can be
adaptively and effectively managed.
Terms of the settlement mandate the water releases from
Friant Dam will more than double, allowing native salmon to
once again spawn and complete their life cycle in the great San
Joaquin River.
To address flooding and better protect residents living
along the San Joaquin River and adjoining areas, the state will
work on new and existing projects related to flood protection,
including levy repair and improvements, maintenance, levy
relocation, and work on channel facilities.
While the state did not participate in negotiating the
terms of the stipulation agreement, we recognize the importance
of defining the state's role in the implementation of this very
important agreement. The stipulation of settlement and its
restoration and water management goals provide the initial
elements of a plan for the restoration. The settling parties
must now turn to working with the state, the many public and
private interests along the San Joaquin River, and the
interested public to establish an effective implementation plan
for this historic settlement.
Well, this is not obviously going to be a simple task. We
indeed are committed to working with the effective parties to
ensure that there will be success, and the costs of the other
impacts are not passed on to other parties.
The MOU that we have signed is intended to set out the
initial framework for state collaboration with the settling
parties on this implementation. That MOU requires two things we
may achieve as we work together.
First, the Secretaries of the Interior and Commerce, along
with the Secretaries of the Environmental Protection Agency and
the Secretary for Resources for the State of California, must
establish a process by December 13 of 2006 for the state and
Federal agencies to implement this agreement. This is important
because the stipulation of settlement assigns to the Secretary
of Interior many restoration tasks that will require
California's participation and approval for them to be
achieved.
Second, the state and the settling parties will establish a
mechanism to ensure public participation input into the
implementation of the settlement. Clearly, there are many, many
vested interests along the river, and many who have already
spent years working on these restoration efforts. To
successfully restore the river, we must indeed work
collaboratively with all of these interests.
Again, the San Joaquin River, as we all know, is a critical
waterway that serves crucial links in the state's vast water
delivery system. It is a river that is often called the Jewel
of California Central Valley, and it feeds into the Delta, a
delta that feeds and supplies two thirds of Californians, more
than 22 million people in our state, with drinking water.
The Governor has expressed strong support for the terms of
the settlement agreement, and the State of California is
committed to doing its part to achieve the restoration of this
river.
Mr. Chairman, thank you again for holding the hearing.
[The prepared statement of Mr. Chrisman follows:]
Statement of Mike Chrisman, Secretary for Resources,
California Resources Agency
Subcommittee Chairman Radanovich and members of the Subcommittee, I
appreciate the opportunity to appear before you today to discuss the
historic San Joaquin River Restoration Settlement which was signed last
week.
This is a significant achievement that will have lasting positive
impacts on fisheries and the natural environment while protecting
farmers and the Central Valley economy. It creates a clear obligation
to the settling parties, but more importantly, an incredible
opportunity to achieve an historic restoration of a western river.
All Californians will be the beneficiaries of the environmental,
economic, recreational, water management and flood protection success
our collective efforts will help to create. As a fourth generation
Californian, I personally look forward to the restoration of
California's second largest river as a significant milestone in
responsible environmental stewardship.
The State of California has joined with federal agencies and other
settling parties to sign a Memorandum of Understanding to help
implement the Stipulation of Settlement. The planned enhancements on
the state's second largest river will have far-reaching benefits.
State agencies, including the Resources Agency, the California
Environmental Protection Agency, the Department of Water Resources and
Department of Fish and Game and the settling parties have pledged to
work collaboratively to plan, design, fund, and implement actions to
support the restoration project.
The restoration of the San Joaquin River has long been elusive.
Many thought that it could never be done. I urge you to seize this
opportunity and to work toward making this dream a reality.
History of the San Joaquin River
Originating at 10,000 feet in the form of crystalline snow pack in
the southern Sierras, the San Joaquin's original river bed stretches
for 350 miles, making it California's second longest river.
Tragically, however, the San Joaquin has long been recognized as
one of California's most damaged rivers. Dammed 60 years ago, it was
engineered to save Central Valley farmers from economic ruin.
Responsible for the irrigation of more than one million acres of
farmland, the San Joaquin River has played a central role in the
development and success of some of California's most important and
productive agricultural areas.
Along with the economic prosperity and agricultural bounty brought
by altering the path and flow of the San Joaquin, came environmental
consequences. Construction of dams, channels and levees, during the
last 100 years, has modified the river, changing its natural streambed.
These diversions and modifications of the San Joaquin have resulted
in diminished and, in some cases, near elimination of, Chinook salmon
runs. Prior to the construction of the Friant Dam in 1942, the San
Joaquin River was the southernmost habitat for salmon in North America.
However, the diversion of water from the upper reaches of the river and
subsequent reduced flows has significantly reduced the number of
Chinook salmon native to the river.
Additionally, the habitat of the endangered kit fox has been
largely degraded, and seasonal wetlands and the migratory birds they
host have both been severely compromised as a result of human impact on
the river.
Even more troubling, lack of adequate flows in the San Joaquin
threatens the quality of local drinking water supplies.
But modern irrigation technology and other advances in water
conservation and agriculture afford us an opportunity to make
restoration possible, while still maintaining the health and prosperity
of neighboring farmland.
Facts about the settlement and California's role
A key goal of the settlement is to minimize impacts to water users
who depend upon the San Joaquin River. Under the plan, farmers will
receive assurances of water supply and costs. The state will help to
identify special projects and actions to meet these objectives.
Improvements on the San Joaquin River will focus on ecosystem
restoration to return the river to more natural conditions. The State
will design and construct facilities to provide for fish passage and
minimize fish entrainment, establish riparian habitat, and implement
the best available science and monitoring procedures so the system can
be adaptively and effectively managed.
Terms of the settlement mandate that water releases from Friant Dam
will more than double, allowing native salmon to once again spawn and
complete their lifecycle in the great San Joaquin.
To address flooding and better protect residents living along the
San Joaquin River and adjoining areas, the state will work on new and
existing projects related to flood protection including levee repairs
and improvements, maintenance, levee relocation, and work on channel
facilities.
While the state did not participate in negotiating terms of the
Stipulation of Settlement, we recognized the importance of defining
California's role in the implementation of this agreement. The
Stipulation of Settlement and its Restoration and Water Management
Goals provide the initial elements of a plan for restoration. The
settling parties must now turn to working with the state, the many
public and private interests along the San Joaquin River and the
interested public, to establish an effective implementation plan for
this historic settlement.
While this will not be a simple task, we are committed to working
with all affected parties to ensure that it will be a success and that
cost and other impacts are not passed on to other parties. The MOU is
intended to set out the initial framework for state collaboration with
the settling parties on implementation.
It requires two things so that we may achieve this goal together;
First, the Secretaries of Interior and Commerce, along with the
California Secretaries of Environmental Protection and Resources, must
establish a process by December 13, 2006 for the state and federal
agencies to implement the settlement. This is important because the
Stipulation of Settlement assigns to the Secretary of Interior many
restoration tasks that will require California's participation and
approval for them to be achieved.
Second, the state and the settling parties will establish a
mechanism to ensure public participation and input into the
implementation of the settlement. Clearly, there are many vested
interests along the river and many that have already spent years
working on restoration efforts. To successfully restore this river, we
must work collaboratively with all of these interests.
Conclusion
The San Joaquin River is a critical waterway that serves as a
crucial link in the state's vast water-delivery network. This jewel of
California's Central Valley, as it's been called, is part of the
Sacramento-San Joaquin River Delta. The Delta supplies two-thirds of
Californians, more than 22 million people, with their drinking water.
Years of negotiations have culminated in what can truly be called a
landmark settlement. The San Joaquin River will once again become a
living river, flowing as nature intended, from its headwaters in the
High Sierra all the way to San Francisco Bay.
Governor Schwarzenegger has expressed his strong support for the
terms of the settlement agreement. The State of California is committed
to doing its part to achieve San Joaquin River restoration.
Chairperson Radanovich and committee members: I urge you to
consider the paramount significance of this settlement, and I
respectfully ask for your help in the long overdue restoration of the
San Joaquin River.
Thank you.
______
Mr. Radanovich. Thank you, Mr. Chrisman, I appreciate your
testimony. Next is the Hon. Lois Wolk, Chair of the Committee
on Water, Parks, and Wildlife with the California State
Assembly.
Ms. Wolk, welcome to the Subcommittee. And you may begin.
STATEMENT OF THE HON. LOIS WOLK, CHAIR, COMMITTEE ON WATER,
PARKS, AND WILDLIFE, CALIFORNIA STATE ASSEMBLY, SACRAMENTO,
CALIFORNIA
Ms. Wolk. Good morning, Mr. Chair and Members of the
Committee. I am very pleased to be here, and thank you very
much for inviting me to appear today.
I do chair the California Assembly Committee on Water,
Parks, and Wildlife. I also represent the northern and western
part of the Delta.
Your committee is the counterpart to ours here in Congress,
and both committees strive to balance the protection of our
natural resources heritage with often conflicting, and
sometimes contradictory, demands.
I appear today before you as an ardent advocate for this
settlement. This has been a longstanding dispute, as you know.
I support the proposed San Joaquin River Settlement because it
does reflect a reasonable balance between water supply and
restoration.
We fight a lot about water in California. Water conflicts,
particularly court litigation, simply cost too much. Litigation
costs money to pay advocates, to pay expert witnesses. It costs
time, and most of all missed opportunities. And we fight, the
ecosystem continues its collapse.
There are three points that I would like to share. You have
my testimony, but there are three basic points.
The first is that I believe the settlement provides
benefits for the San Joaquin, that you have heard. Certainty
for water users. Certainly the restoration have been
extraordinary, fishery and river. And something that hasn't
been mentioned: a mechanism for future collaboration between
the parties. And that is important.
Breathing life-giving water back into this river is an
extraordinary goal, worthy of the 21st Century. The agreement
may also provide flood protection benefits. While flood
protection may not have been one of the original purposes, some
of the actions required by the settlement will improve flood
protection, particularly the expansion of the river's capacity
to 4500 cfs at various points.
The second message I would like to leave with you is that
there will be, in my view, secondary or indirect benefits that
this settlement will provide for the Sacramento San Joaquin
River Delta, which has been mentioned is the heart, and you
know that, of the California water system. It provides drinking
water to well over two thirds of the residents of this state.
The Delta is currently in crisis. In the last year the
state has put its best minds and best scientists from the
University of California to investigate the causes of what has
been a substantial decline of pelagic fish and much of the
ecosystem that supports them. We still do not have final
answers, but we have seen indications that there may be three
categories of causes that have contributed to this decline: the
explosion of invasive species, water-quality contaminants, and
water-project pumping operations.
These problems share a connection clearly to the flow of
water into and within the Delta. Introducing additional flows
into the Delta may well assist California in addressing the
causes of the Delta ecosystem crisis.
The third, and perhaps the most important, message for your
committee is how important it is to take the next step in
implementing the agreement. This is a vast undertaking, no
doubt about it.
California needs Congress to enact the legislation
necessary for the implementation of the settlement. On our part
in the Legislature, the Legislature can enact other support of
legislation and budget proposals to advance the settlement's
implementation. I am proud that I was, along with my colleague,
Senator Machado, one of the legislators who fought for state
funding in this year's budget to support a settlement. There is
$2 million that is tied to the settlement and could be used for
this purpose.
Further state legislation, for example, could create a San
Joaquin River Program, including a special San Joaquin River
Fund to authorize both water supply and river restoration
projects, proceeding together and consistent with the
settlement. I have supported such legislation along with my
colleague, Senator Machado, in the past; but before the
settlement it did not enjoy the necessary broad support that
today's settlement may well provide.
I also don't need to mention, but I shall, that on the
November ballot there is a proposition that has earmarked $100
million--Proposition 84, $100 million--that would go toward the
San Joaquin support of the settlement, and there may be other
categories which projects would be eligible for, as well.
We don't read tea leaves here, I know, but we certainly
hope that the people of the State of California will step up
and support many positive things in November.
I hope, in conclusion, that our two governments, the state
and Federal government, can find a way to collaborate on
promoting the most effective and balanced use of San Joaquin's
water for agriculture, for urban use, and for the fishery. I
hope you will support the settlement strongly, and I know you
have been working hard to resolve some of these third-party
concerns.
The alternative is that the judge will decide and will
impose a settlement. And I have always believed, and I am sure
you agree with me, that water managers on the ground and the
landowners and the environmentalists who work on the ground can
figure out the best deal, if they choose to.
This is a well-crafted settlement. It is a settlement for
the 21st Century. It should be a model for settling other
California water conflicts, and I certainly urge your support.
And thank you once again for allowing me the brief
testimony. Thank you.
[The prepared statement of Ms. Wolk follows:]
Statement of The Honorable Lois G. Wolk, Chair,
Assembly Committee on Water, Parks & Wildlife
Good morning, Mr. Chairman and members. My name is Lois Wolk and I
chair the California Assembly Committee on Water, Parks and Wildlife. I
also represent the northern part of the Delta. I am honored by your
invitation to appear today before the subcommittee, which is our
counterpart in Congress. Both committees strive to balance the
protection of our natural resources heritage with conflicting and often
contradictory demands.
I. Support for San Joaquin River Settlement
I appear before you today as an ardent advocate for settlement of
the long-standing dispute on the San Joaquin River. While the Friant
division of the Central Valley Project has produced vast abundance of
agricultural products, it has produced substantial conflict as well.
The most recent litigation--and the one we all are here today to
resolve--has lasted 18 years, often sapping the financial resources and
political energy of the litigants as well as much of the California
water community.
I support the proposed San Joaquin River settlement because it
reflects a reasonable balance between water supply reliability and
River restoration. This settlement will confer benefits on many
Californians, not just the ones who have spent the last two decades in
court.
A. Value of Resolving Long-Standing Conflict
This settlement offers all of us an opportunity to move beyond
conflict. Water conflicts--particularly court litigation--simply cost
too much. It costs money to pay our advocates--the lawyers and expert
witnesses. It costs time and missed opportunities. As we fight, we too
often ignore the continuing and changing needs to operate, maintain and
rebuild the water infrastructure that may have served us well in
another time. But with improved technology and increased value for each
drop of water, we need to invest in creating the most efficient water
system possible--one that balances the many competing water needs--
agricultural, urban and environmental. Moreover, the inherent risks of
litigation put the use of our water resources and water supply
reliability in jeopardy.
Finally, as we fight, the ecosystem collapses. The public trust
resources that we have a duty to protect deteriorate. California cannot
afford the costs of conflict. That's why I'm here today to urge you to
support the federal legislation that will let California move beyond
this long-standing conflict.
I hope that our two governments--state and federal--can find a way
to collaborate on promoting the most effective and balanced use of the
San Joaquin's water--for agriculture, cities and the fishery. Only
recently did the Schwarzenegger Administration begin investing time,
attention and resources on improving the situation on the San Joaquin.
I am proud to be one of the legislators who fought for State funding in
this year's budget to support this settlement. I was also encouraged to
see that the draft legislation includes a ``savings clause'' for
existing federal law requiring Central Valley Project compliance with
State law. This provision will protect the State's sovereignty and
ensure the State's proper role in overseeing the San Joaquin River's
water resources.
B. Settlement Helps Resolve Multiple San Joaquin River Issues
I would like to share a broader perspective about how this helps
California as a whole.
Certainty for Water Users. First, there is the added certainty for
water users throughout the San Joaquin River basin. For more than a
decade, we have crafted water agreements that would allow for some
uncertainty due to this litigation. The Federal Government and water
users on San Joaquin tributaries crafted the 1998 San Joaquin River
Agreement, often called the VAMP (or the Vernalis Adaptive Management
Program), leaving some flexibility for an outcome of this litigation.
The State's Delta water quality standards were imposed on all the
Central Valley Project permits, to allow for the possibility that water
might some day come down the mainstem from Friant to the Delta. This
time of bracing for uncertainty can now end, and we can begin the
conversation about how to promote greater water certainty throughout
the San Joaquin system.
Assistance for Fishery Resources. And, of course, this settlement
will help the San Joaquin system's fishery resources. I understand
there may be some who question how much the water released under this
agreement will help the spring run and, perhaps, may not help fall run
salmon at all. But let us keep in mind our starting point--a dead
river--and a basic fact--fish need water for life. Breathing life-
giving water back into this river--even if not as much as some
suggested would be required--is better for the fishery than dry sand.
This water will contribute to the fishery needs in the San Joaquin
River and downstream in the Sacramento-San Joaquin Delta.
Diluted Salinity. This infusion of water also contributes to
diluting the salinity flowing downstream from the westside of the San
Joaquin Valley to the Delta. Some of you may remember the Kesterson
wildlife debacle when the last drain operated in the 1980's. This
settlement will contribute a new water resource to this chronic
salinity problem on the San Joaquin and in the Delta. Even a small
contribution will nevertheless be a contribution.
Flood Protection. While flood protection was not one of the
original purposes, some of the actions required by the settlement will
improve flood protection, particularly the expansion of the River's
capacity to 4,500 cfs at various points. This last year, the small town
of Firebaugh suffered a huge risk that its levees would fail and deluge
the town. This settlement provides a small indirect flood protection
benefit that, in these years after Hurricane Katrina, may be
appreciated.
II. Benefits for the Sacramento-San Joaquin Delta
This settlement's benefits reach beyond the confines of the San
Joaquin River, particularly to the broader Sacramento-San Joaquin River
Delta--California's Critical Crossroads for water. I note that the
Delta's name includes the San Joaquin River. The Delta is formed by two
of California's great rivers--the Sacramento AND the San Joaquin.
Admittedly, the settlement was not necessarily intended, nor are there
any commitments, for the benefit of the Delta. But, when you begin
moving toward a healthier river, the Delta cannot help gaining some
sort of benefit, albeit unquantified.
A. Delta
The Delta currently suffers from two inter-related problems--water
quality and an ecosystem crisis. The Delta's water quality issues are
multi-faceted, involving salinity (both drainage and saltwater
intrusion), contaminants (including pesticides, mercury and urban
runoff), and water circulation or flow standards. Increasing the
availability of San Joaquin River flows will, in any case, contribute
to improving water quality in the South Delta, where the San Joaquin
River flows into the Delta.
Also, in the last year, the State has been investigating the causes
of the substantial decline of pelagic fish (e.g. delta smelt) and much
of the ecosystem that supports them. We still do not have final
answers, but we have seen indications that three categories of causes
have contributed to this decline--invasive species, contaminants and
water project pumping operations--and we have recognized that there are
connections among all three of those categories. Those categories also
share a connection to the flow of water into and within the Delta. The
cause of the decline is likely related to all of these causes. So, the
best news is that introducing additional flows into the Delta may
assist California in addressing the root causes of the Delta ecosystem
crisis.
B. Export Water Supplies
Because California's export water communities--in the San Joaquin
Valley and Southern California--rely on water exported from the Delta,
any assistance the Delta receives can help the water supply reliability
for export water supplies. It may help the two large water projects
comply with the interior Delta salinity standards. Or the additional
San Joaquin River inflows may improve the export-inflow ratios that
regulate export-pumping operations. In either case, export water supply
may improve because there is more water flowing into the Delta.
III. Next Steps
The next steps to implement the San Joaquin River settlement
involve both of our legislative bodies. First, California needs the
Congress to enact the legislation necessary for implementation of the
settlement, including elimination of the CVPIA prohibition on Friant
releases for these purposes. Then, I can assist the effort in the
California Legislature to enact other supportive legislation and budget
proposals to advance the settlement's implementation. For example, we
may create a San Joaquin River program, including a special San Joaquin
River fund, to authorize both water supply and River restoration
projects proceeding together, and consistent with the settlement. I
have supported such legislation in this past session, but before the
settlement, it did not enjoy the necessary broad support that today's
settlement may provide. With our two legislative bodies working
together, I have no doubt that we will succeed in making this
settlement a great success!
______
[The response to questions submitted for the record by Ms.
Wolk follows:]
October 19, 2006
Honorable Richard Pombo, Chairman
Committee on Resources
United States House of Representatives
Washington, D.C. 20515
Subject: San Joaquin River Litigation Settlement
Dear Congressman Pombo:
Thank you for the assistance that you and the chair of your
Subcommittee on Water and Power, Representative George Radanovich, have
provided in supporting the San Joaquin River settlement. I have heard
positive reports about the final resolution of the issues surrounding
the supporting federal legislation. I look forward to Congress acting
at its earliest opportunity to complete the settlement process.
Having reviewed the questions submitted by Representative Nunes, I
see that he has identified all the issues where the settling parties
have the least certainty and specific information. Such uncertainty is
not unusual when settlements arise. Settlements of such disputes are
nevertheless preferable to continued litigation and the uncertainty of
placing the decision only in the hands of one judge, regardless who
that judge is.
The questions are properly directed to the settling parties, who
have what information is available on the specific issues Mr. Nunes has
raised. Many of the issues, however, will require future resolution--
with participation by the State of California in that resolution. For
fishery improvements, water quality and groundwater overdraft, for
example, the State will need to continue to play an active role in
addressing how to improve San Joaquin River conditions. The State
already has committed to support this settlement, with an appropriation
in this year's budget to support implementation of the settlement. This
settlement is just the first step toward restoring the San Joaquin
River and supporting the water needs of Friant Division water users.
I look forward to working with you and other members of the
California Congressional delegation, as the settling parties and our
two governments continue working on the best use for California's
limited water resources.
Sincerely,
Lois Wolk, Chair
Assembly Committee on Water, Parks & Wildlife
______
Mr. Radanovich. Thank you, Mrs. Wolk, for your testimony.
It was very valuable; I do appreciate that.
We are going to have a series of three votes coming up
somewhere between 11 and 11:30. It is our hope to be done with
the first panel, but again we will go as long as we need to to
get every question answered.
So I am going to start, and then begin to defer to the
others. Again, thank you for being here. And I do want to
stress that a lot of this hearing is going to be about
addressing potential third-party impacts to this agreement,
because third parties were not party to the settlement
agreements, but we need to get them resolved.
But I want to be really clear about what is at stake here
if this settlement does fall apart. And my question is for just
about anybody on the panel, if you wish to answer it, what
happens if this settlement fails? I mean, what are the choices
if we don't success I guess is the question? And I would invite
comment on that.
Mr. Upton. At least for the farmers, I mean, the judge has
already indicated that the feds are in violation of 5937. So he
is going to release water, he has that authority.
And then if it becomes a question of whether it is enough
water to revive to self-sustain the salmon fishery, he has said
that his view is the historic fishery, some semblance of that
is what has to be restored.
So we would look, from our perspective, at an uncertain
situation. If the initial release wasn't enough, then he would
come back and keep releasing until he did it. And we would
obviously have none of the mitigation measures that we have in
this settlement.
So we would basically be looking at fallowing land. And how
do we let our users know that there is just water available and
nothing we can do about it?
Mr. Candee. I guess I would like to emphasize that one of
the benefits of settlement is that we not only accomplish the
restoration of the river and the protection and stability for
the Friant farmers, but we actually set up a 20-year program of
cooperation between farmers, environmental and fishing groups,
and the Federal government and the state government. And I
think by itself is a critical piece of this agreement.
And so it would be a shame to, if Congress didn't want to
support it and bless it and create an impediment to
accomplishing that cooperation in this very historic
undertaking. So we are optimistic that now that somehow the
three parties were able to reach agreement, that we can finish
the job and reach final approval from Congress.
Thank you.
Mr. Peltier. It is up to the Federal Courts to approve the
settlement itself. We are scheduled for a hearing in late
October to present and hopefully receive court approval. The
court will also hear from people who have concerns, the third
parties. So that process is ahead of us.
The Federal government does have considerable authorities,
flowing largely out of the Central Valley Project Improvement
Act, to begin implementation of the settlement agreement in the
sense of doing planning and the initial work. I can imagine if
Congress does not enact the legislation to provide full
authorization for the Federal government to implement the
settlement, that we will simply limp along; the conflict will
continue. The parties, we will be in kind of a limbo where
nobody is happy, and anger continues to be the word of the day
instead of progress.
Mr. Chrisman. From our perspective, following on what the
other three speakers have said, failure of this is
unacceptable. I mean, we essentially have to be moving forward.
We have to work hand in glove to try to make this work. Too
much good work has gone into this. Having the parties coming to
this stage I think is truly historic. We need to be working
jointly to make it happen.
Because what you heard here is just kind of the beginnings
of what the impacts may be if this settlement is not
consummated. So we are here to support everything we can do to
get it done.
Ms. Wolk. Mr. Chair, I think I spoke to that in my
statement. I believe a settlement, there would be a court
decision. I don't believe that it would meet the test of
balance; it might make some people very happy, and others very
unhappy. I think balance is the key, and I think that is what
you get here in the settlement.
More money would be wasted, more energy and time would be
absorbed by all of this for the next umpteen years. And we have
propositions that are on the ballot. We have money that may be
ready to support positive collaborative projects. It is time to
get those projects ready to go, and look forward rather than
backward, and the uncertainty would be tremendous.
Mr. Radanovich. Thank you very much for your answer to
those questions.
Before I defer to other Members, I will say that we will
stick to the five-minute rule on questions, but we will
continue to go back until all the questions are asked.
I now recognize the Ranking Member, Ms. Napolitano.
Ms. Napolitano. Thank you, Mr. Chair. Mr. Candee, outside
of the Central Valley and the Delta, exactly who will benefit
from the settlement?
Mr. Candee. Well, as I mentioned in my testimony, we think
the benefits flow very widely. It is not just about the parties
to the case, and it is not just about the San Joaquin Valley.
We represent, for example, commercial fishermen. And there
are North Coast communities that have suffered as a result of
the decline of the salmon population, and they are looking for
a revitalization, a rebuilding of the salmon in California.
There are people who are working very hard right now in the
Sacramento Valley to recover the Spring Run Salmon. I think
they are very--both the Federal and state agencies and all of
us in the environmental community are very enthusiastic about
beginning a recovery program or restoration of Spring Run
Salmon in the San Joaquin, its historic habitat on the San
Joaquin River.
There are people in Southern California who obviously have
been hoping for improvements in the Delta, both in terms of
water supply stability and water quality improvement. So I
think the benefits are really very far and wide.
And I know there is a big focus here at the hearing on some
specific potential third-party impacts that have been
identified. And all of us on the panel have spent an enormous
amount of time trying to understand those impacts and try to
address them. But we also need to recognize that there are an
enormous amount of benefits, as well, and that is another good
reason to quickly move to implement the settlement.
Ms. Napolitano. You did touch upon the water quality. And
it does make sense that we would see some water quality
improvements if we release more freshwater to flow into the
Delta.
Have any studies or modeling been done to document the
water quality effects of implementing the settlement? And will
the salinity be reduced in the San Joaquin River or in the
Delta? And what are the pollutants that are already present?
And then the last question. Will water exported to Southern
California be improved?
Mr. Candee. Our belief and understanding based on a lot of
state studies is that yes, there will be improvements in all of
those respects.
I mean, it is interesting. Although we have had this case
going for 18 years, there have been a number of other
proceedings trying to look at the challenges and the problems
on the San Joaquin River, including the Lower San Joaquin
River. And one of those, of course, has been the water quality
impacts.
And there are a number of studies from the Regional Water
Quality Board indicating that there is a recurring and
persistent problem of pollution, and also salinity in the Lower
River and in the Delta. We believe this just can't possibly be
anything but beneficial to have hundreds of thousands of acre-
feet of freshwater coming down from the Upper San Joaquin.
Remember, historically the San Joaquin is the second-
largest tributary to the Delta. It has been disconnected from
the Delta for 50 years. And it is critical, I think, to the
future water quality improvement. So we see a number of
benefits. It may also help people not all the way down to the
Delta, but part of the way downstream, meet their own water
quality obligations, either under current law or under future
standards.
So we think there is, again as I mentioned before, a number
of benefits. And some of this is laid out in some of the
materials we have submitted to the record.
Ms. Napolitano. And also to Southern California, I would
hope.
Mr. Candee. Absolutely. And you know, in terms of the
studies, I mean, one of the studies that needs to be further
done, and will be done as part of the environmental reviews,
will be, of course, all of the benefits and impacts of the
restoration program.
But for a number of years people in the export area have
looked at how do we improve the water quality situation in the
Delta, and addition of freshwater flows. I know at the state
regulatory agencies, that has always been a critical piece. And
that is how we get to improved water quality for all of the
experts.
Ms. Napolitano. Ms. Wolk, could you describe in more detail
how you think this settlement will benefit the State of
California? And why should my constituents in the Southern
California area be concerned or care about this?
Ms. Wolk. When they turn on their tap, much of their
water--two thirds of the water--comes from the Delta. So this
has been an ongoing issue in our committee.
We have a committee that is made up mostly of people from
Southern California, members from Southern California. And when
we talk about the Delta and its importance to the entire state,
and the importance of levees, for example, the importance of
water quality, they understand that their water essentially
comes from that part of the state.
So it seems to me that any introduction of freshwater will
assist, we hope, in some of the water quality issues that right
now are a major, major concern in the Delta.
We don't know, as I said in my testimony, we don't know the
exact cause for the failure of the Delta, the crisis that the
Delta is in. But we do know that introduction, that water is a
major feature of all of that, and more freshwater, the better.
Ms. Napolitano. I just need to make a correction, because
about a third of Southern California comes from the Delta.
Thank you.
Mr. Radanovich. Thank you, Ms. Napolitano. Now I recognize
the Chairman of the Committee, Mr. Pombo.
Mr. Pombo. Thank you. I guess just a couple of questions
for the whole panel. The first one is in regards to third-party
impacts.
It is my understanding from meetings that we have had in
the past, that everyone is in agreement on not having a third-
party impact. And I would like the witnesses to comment on
that.
Mr. Upton. We agree.
[Laughter.]
Mr. Candee. But the settlement actually has a provision,
speaking specifically to that point, in which all of the
settling parties make clear that it is neither our intent nor
our expectation that there will be any material adverse impact.
So as you indicated, we have all spent a lot of time, not
just in the last two days, but actually in the last six months,
trying to reach out to third parties, understand their
concerns.
For example, I know one of the opening statements mentioned
the issue of flexibility and timing of releases of water
because of the potential for temperature impacts, because there
are Fall Run programs on the tributaries. And obviously one of
the goals of this settlement is to rebuild and strengthen the
Fall Run population. So we all have a shared interest in that.
As a result of those discussions--and many of these were
way before the June 30 conclusion of the settlement, these were
in the springtime--we went back and we collectively--the Friant
parties, the environmental parties, and the government--redid
our hydrograph exhibit, the Exhibit B, and created new
flexibility in the settlement, so that we could adjust the
release of water out of Friant to accomplish both the
restoration goal of the settlement, and also meet the concerns,
the temperature issues for example, downstream.
I am sorry for the long example, but that was one where we
really spent a lot of time trying to understand the concern of
the third parties.
Mr. Peltier. If I could, for just a second, address the
water quality issue and make sure the record is clear. I think
from the perspective of reclamation, we are uncertain as to the
water quality benefits that would be associated. Certainly
intuitively we know more freshwater in a river is good.
However, there are many factors that affect water quality
in San Joaquin River. There are many players, there are many
diversions, there are many, many things that affect us.
One thing I can guarantee and assure the Committee of is
that we will continue to meet the standards, the water quality
standards established by the State Water Resource Control
Board. We are going to have a fight over those standards
because we believe that the State Board has looked too narrowly
at the state and Federal projects to meet those standards. But
we will go forward, and that will be a continued area of tug-
of-war.
On the question of third-party impacts, I think we made
great progress yesterday in addressing some of the real estate,
the landowner, property owner adjacent to the river concerns.
And I think the direction we are heading is before we get--we
have a lot more planning to do, and a lot more determinations
to make, about how exactly kind of the lower stretch of the
river is going to be managed and look. And that will possibly
entail, depending on where we go, us coming back to Congress
and having a more complete hearing and further public
involvement at the Congressional level on that matter.
There are other issues related to endangered species
downstream that continue to be sensitive. Certainly the reality
of bringing the Spring Run Salmon into a system where it has
been eliminated for many years has, you can imagine the
collateral concerns that that raises.
But we don't want to lose sight of the reality that this
is, but for the settlement, these fish would not be there at
all. They would not exist. So it is the settlement that creates
an opportunity, and it also creates a challenge for us as to
how we make sure that opportunity remains a positive for the
people on the San Joaquin River and in the Delta. Thank you.
Mr. Pombo. So was that a yes? Sounded like it.
[Laughter.]
Mr. Peltier. Indeed.
Mr. Pombo. Just making sure.
Mr. Chrisman. From a state perspective, quite frankly, and
Mr. Candee and others have indicated the fact that third-party
impacts, the fact that we didn't want third-party impacts out
of the settlement, it was recognized in the stipulation
agreement.
From a state perspective, I mean, we strongly support the
restoration, obviously this river and the reintroduction of the
salmon. We also need to make sure that we take measures that
don't adversely impact water used from the Delta and other
impacts on the Delta.
So, quite frankly, this is going to be a big challenge. And
we hear, quite frankly, our folks were involved, Lester Snow,
our Director of Water Resource, Nancy Saraceno and John
McKalein were involved in the conversations here yesterday with
Senator Feinstein. It sounds like we are making good progress,
but it is something we are going to have to spend a lot of time
on.
We at the state level are committed to working with
everybody to make sure that we live up to the commitments in
that stipulation agreement.
Mr. Pombo. Thank you. You are going to have to do it
anyway, so it is all right. Assemblywoman?
Ms. Napolitano. I don't have much to add to what has been
said. I think the point is that the intent of the agreement is
not to harm others, but to look at the positive. And there are
probably positive third-party impacts that will result from
this. It takes a leap of faith at this point, but I do believe
that what you have heard is indication of how this will move
forward.
Mr. Pombo. I believe that you are correct, that there are
positive aspects on third parties, and that will be taken into
consideration. But I think all of us, as well as you, have had
concerns raised by people who were not party to the settlement
not part of the negotiations, that have very serious concerns
about the impact on them.
I think the easiest thing to do when you are negotiating in
reaching a settlement is to have somebody else pay for it, or
have somebody else hurt by it who is not in the room. And we
just want to make sure that doesn't happen in this case.
Yes, ma'am.
Ms. Wolk. May I just respond to that? I agree with you,
Congressman.
I think one of the important things in that case and for
the future is to ensure that there is some kind of process
whereby these impacts can be addressed. And my understanding is
that the proposal, that the settlement also encourages a
restoration administrator, and all parties, the major parties
are at the table.
And I think that if you provide that kind of mechanism for
resolution of issues that come up in the future, that goes a
long way toward solving these problems.
Mr. Pombo. Thank you. Thank you, Mr. Chairman.
Mr. Radanovich. Thank you, Mr. Chairman. Mr. Cardoza.
Mr. Cardoza. Thank you, Mr. Chairman. I am heartened and
relieved to hear that everyone agrees that third parties should
not be impacted. Yet the agreement does not provide ESA
protections to the tributary agencies or the Delta exporters
currently, as it is currently written in the agreement. We have
had negotiations, we are making progress on that.
My question to Secretary Chrisman is, do you support
language to protect the tributary agencies and the Delta
exporters on the question of ESA protections?
Mr. Chrisman. We are going to have to get to that. I mean,
at the end of the day, part of the stipulation agreement, no
adverse impact to third parties, obviously an integral part of
that is the work that we are doing in the Delta. An integral
part of that is the ESA protection. We understand that
conversations and negotiations are ongoing right now. We want
to be a party to that, because we have, again, there is a
Federal law, there is a state law in ESA that we have to match.
And so at the end of the day, we are going to want to be a
party to those conversations, and ultimately a part of the
solutions.
Mr. Cardoza. Mr. Upton?
Mr. Upton. Yes, sir.
Mr. Cardoza. Same question.
Mr. Upton. Yes, well, we have had this discussion with the
tribs for quite a while. They brought this up early and often,
and I think they have a legitimate point, that they did not
want to put their constituents at risk for huge water losses or
huge financial considerations because of the inadvertent
introduction into their system of a spring run.
So we support the language to make sure that they are taken
care of. And I think we are pretty close on getting that
language.
Mr. Cardoza. Mr. Candee, would you like to answer the same
question?
Mr. Candee. Yes. As I think you know, Congressman Cardoza,
as a result of the meetings and the comments we have received
from third parties on this issue, the settlings parties went
back and actually modified the settlement after it had been
negotiated to add two sentences with an explicit acknowledgment
that all of the parties, including the National Marine
Fisheries Service+, which of course has regulatory authority
over the Spring Run Salmon, anticipate that take protection
would be provided for the population that is reintroduced.
So the National Marine Fisheries Service also prepared a
briefing memo for the third parties which laid out that there
are actually multiple ways to provide those protections. They
have a lot of discretionary authority.
So as you know, we all talked a lot about this recently,
and there has been, I think, a lot of effort, collective effort
to try to understand what the problems are and how to deal with
them.
Mr. Cardoza. You know, I concur with you, Mr. Candee, that
we have had those discussions. I commend all the parties,
including yourselves, for trying to get together.
This is one of those cases where, because the law can get
you into so much trouble and it can be litigated in the future,
we have to be very careful on how we craft this legislation,
both from your perspective and from ours, to make sure that we
all understand what we are doing, and we understand the impacts
on the third parties. Including the Delta, where all of the
different species comes together, and protecting one may impact
another. And that is why we are having these detailed
conversations.
Mr. Candee. Absolutely. And I think, you know, if my
colleague and member of our coalition, Zeke Grader, was here on
behalf of the commercial fishermen, he would point out that
there was a very, very big third-party impact a few decades ago
that was caused by the beginning of the Friant Division and the
operation of the Friant Division. And one of the goals, of
course, of the settlement is to try to undo some of that
damage.
And obviously we are not going to turn back the clock and
bring back the historic run at the same levels, but we have, I
think, laid out a program here to bring back spring run,
reintroduce spring run. I think we need to be very careful
about how we manage this issue, because we want to make sure
that if we are going to work upstream to rebuild spring run, we
don't want to then do something inadvertently in the Delta that
hurts that population.
Mr. Cardoza. Let me stop you there, because I have two more
questions, and I think we understand.
Mr. Candee. Yes, OK.
Mr. Cardoza. The point is, however, that there are also
potential third-party impacts to the exporters, to others who
have pumps in the Delta. And so when we talk about no third-
party impacts, we still have work to do in this area to get to
the goal that we all have of protecting the third parties, and
protecting the other species.
If I could go to Jason. Mr. Peltier, I understand that
significant progress has been made regarding Reach 4B. What
assurances can you give me and the Committee that the impact of
the flows will be mitigated before a substantial quantity of
water is released? And what assurances can you give that
sufficient funding is available for these impacts if, as the
Committee knows, in Reach 4B the channel in some places exists
only on maps, and doesn't exist any longer in reality, and it
cannot handle the expected flows. So I would put that question
to you, sir.
Mr. Peltier. I can give you little firm assurance that that
mitigation would be put in place today, simply because I don't
think the settlement that we have negotiated in the draft
legislation that we have put together goes as far as the
discussions that have been going on subsequent to our coming to
closure.
If those subsequent discussions and progress in the
legislation we are focusing on this topic, that, you know, at
some subsequent point we testify, if that language is what is
before us, then that is when we will be able to comment on it.
But today we are limited.
But I can assure you that the desire and, you know, the
motivation and the staying at the table on the part of the
Administration will last on and on into the future.
Mr. Cardoza. Thank you. Mr. Chair, I know I have the red
light, but I do have two additional questions. I would like a
second round.
Mr. Radanovich. Oh, you will definitely get a second round.
You can go as long as you want.
Mr. Cardoza. Yes, that is what I am--
Mr. Radanovich. Yes, we won't finish before we go to vote.
We do have a vote call on, but I think we can get Mr. Nunes's
questions in. Then we will break and vote. It will be about a
half hour, it is about three votes. So we will be back as soon
as we can.
Thank you, Mr. Cardoza. Mr. Nunes.
Mr. Nunes. Thank you, Mr. Radanovich. Mr. Candee, typically
the way that Congress has worked on, when we enact legislation
we typically will do a feasibility study, followed by an
authorization, followed by an appropriation.
This, what you are asking us to do is all of that at once,
do you agree?
Mr. Candee. Well, let me get--
Mr. Nunes. And not just you, you and Friant.
Mr. Candee. I was going to say when Kole Upton and I were
finished last October or November, there was no proposed
legislation. The Federal government is the implementing agency,
and it is the Federal government that needs, in the first
instance, needs the permission and the authority from Congress
to do the complete array of actions under the settlement. And
of course, in terms of funding, you need to provide the
authorization.
So I think we understand, and I think Mr. Peltier discussed
this in his testimony, that unlike a project that just is
developed on its own, this is an attempt to settle litigation.
It is much more like an Indian water rights settlement in that
sense.
Mr. Nunes. But, I mean, Congress did decide to dry up the
river. And you are essentially asking us to pass legislation
that does a feasibility study, authorizes and appropriates all
at one time. That is what the settlement does.
And so my question to you is, you know, how is this any
different than water storage projects, just for example, or
water banking projects for example? Should we do those projects
the same way we are doing this?
Mr. Candee. There are many parts to your question. First of
all, I don't agree with the premise that Congress had no
interest in downstream releases when they authorized Friant
Dam. After all, one of the authorizing purposes of Friant Dam
was to help with salinity intrusion in the Delta. That assumes
a connection between releases from Friant and the Delta.
Second, I think in terms of the--
Mr. Nunes. I mean, this question specifically is to the
fact that you have come to us, you and Friant--and I will give
Mr. Upton his chance to speak, also--have come to us and asked
us to enact legislation that does all this at one time. And I
mean, we haven't done any feasibility studies. We don't know
what could happen, for example, if we put water down this
section of 4B, just as an example, or water right by Fresno. We
don't know what is going to happen on a whole host of areas,
what could happen. And that is typically why the Congress asks
for feasibility studies before we enact any type of
authorization or appropriation.
Mr. Candee. There are two very important differences, I
think, between the model you are talking about and what you
have before you here.
First of all, as Exhibit C to the settlement and a number
of provisions to the settlement indicate, the very first thing
that is done is a number of studies answering exactly those
questions. And to develop those answers, in some cases we
haven't even made the choice yet as to do we go this way or go
that way.
And second, there is no request for immediate new
appropriations. This is an authorizing bill, it is not an
appropriations bill.
Mr. Nunes. Well, I mean, you are authorizing the use of
restoration fund money.
Mr. Candee. Absolutely, yes.
Mr. Nunes. And you are changing the payment structure. I
think the appropriators would have a differing opinion of you,
the Members of Congress here in Washington.
Mr. Candee. I understand that point, and I think that is in
some ways one of the advantages of this settlement. Not only do
we have the State of California that has already put a bond, a
ballot initiative on to provide $100 million up front, but we
also have I think a fairly creative proposal from OMB and
Interior and the Friant water users to try to make some of the
payments from the farmers in California available for this
program, without going to the appropriators for new funding.
But I guess the point I am trying to make is if we are able
to give Interior the approval it needs to fully implement the
settlement, and I agree with--
Mr. Nunes. Well, yes, I mean, you are asking us to
authorize and appropriate money to enact the settlement. I
understand, that is what you are asking. And so my question is,
why in the past when we have talked about other projects,
storage projects, off-stream storage water projects, typically
your organization has opposed those efforts.
And I do want to follow up, you know, just with one part of
your testimony. You talked about the restoration flows
improving water quality in the Delta. However, it is my
understanding that most of the time, during that time when the
water will be released to the Delta, we don't have a water
quality problem during that time period.
Mr. Candee. Well, there are flows year around, and there
are different amounts. And obviously there is a higher flow
than--
Mr. Nunes. But during that time period we don't have a
water quality problem. So I mean, therefore your statement in
your testimony is not really correct.
Mr. Candee. No, actually, as I think Assemblywoman Wolk
pointed out, one of the big problems that we have in the Delta
is the uncertainty. A lot of people assume that hey, if you
move--
Mr. Nunes. Right, but when you are going to release the
water under this agreement, it is going to go down the river
into the Delta at a time where there is not a water quality
problem.
Mr. Candee. There will be water released year around. It is
true that there are larger pulse flows in certain periods, and
we believe there will be a water quality benefit both part of
the way downstream and in the Delta.
But you know, I want to get back to--
Mr. Nunes. I think, Mr. Candee, I know that we have a vote.
And I know, Mr. Chairman, I think we are going to have to go
before the rest of it. I look forward to hearing that response
when I get back.
Mr. Candee. Thank you.
Mr. Radanovich. All right. Thank you, Mr. Nunes. And again,
we will go into recess to vote. It will be about 30 minutes. If
all Members can come back quickly so that you can get your
questions in to the first panel, it would be much appreciated.
And we will now recess.
[Recess.]
Mr. Radanovich. We are back in session, and we will start a
new round of questions.
I do want to get into some of the issues of the third
party, on the 4B Reach funding. And this is a question for the
whole panel.
It is important that this settlement be funded from the
beginning, but we have to be realistic about how we fund this
and what we fund. One of the funding issues is restoring the
Reach 4B for basin pulse flows. It appears that no one knows
how much this will cost. So doesn't it make sense to do the
study, so that we know what we are getting into before we
authorize a big-ticket item that, frankly, may never work?
I guess my question is, does it make sense that before we
get into the issue of 4B, that we do the studies before we do
the funding of it? And that is for anybody on the panel.
Mr. Upton. Well, from Friant's perspective, yes, that makes
a lot of sense to us.
Mr. Radanovich. OK.
Mr. Candee. Mr. Chairman, the folks in that region have
raised that question. And as the Chairman knows, the settlement
contemplates two different stages, two phases of the work on
Reach 4B.
The big jump is from 475 cfs of a base flow amount to 4500
cfs for the full pulse flows. And the settling parties decided
to put that second phase off. It is one of the last physical
improvements to be completed under the schedule, and it assumes
a lot of study to be done before that choice is made.
So the settlement explicitly contemplates the Interior
Department making a subsequent decision after the studies are
completed.
Mr. Radanovich. All right, thank you. Next question is for
either Secretary Chrisman or both, and Jason Peltier. Could the
settlement affect the state and Federal pumping operations in
the Delta without ESA protections?
Mr. Chrisman. That is a hard one right now. I mean, it is
again something we are going to have to work through. It could
very well. But at the end of the day we are going to have to,
in the context of the settlement we are going to have to figure
out how to make it work.
So it is something that we are going to have to really
drill down on and look at. And we are not there yet.
Mr. Radanovich. OK.
Mr. Peltier. When you say could it, I would say yes, it
could. The specter is there. We will have new fish, new listed
fish showing more of the--you know, spring run are doing good
in the Sacramento Valley. If we are successful we will see them
entering the Delta from the San Joaquin River. And the answer
is yes, it could.
I think the next question is, so how do we deal with that.
We were working on language yesterday, and this is really the
domain of National Marine Fisheries Service, who has the
regulatory tiller here. And they were working yesterday with us
trying to craft language which would describe how they might
use some of their regulatory tools in the context of Delta
operations. I would say that is an open, you know, we have not
reached closure on that; there is uncertainty there. But I
think it could well be one of the critical issues to whether we
reach closure or not, is just how does Congress describe those
tools and their use going into the future.
Mr. Radanovich. Thank you. I now recognize Mr. Costa for
his first round of questions.
Mr. Costa. Thank you very much, Mr. Chairman. As we have
discussed this morning and now into the afternoon, the concerns
that we have all raised with regards to third parties, a lot of
that focus has been with folks that are on the parts of the
river that, as you see the map, that affect the tributaries
that go to the Delta.
But there are other third parties that are impacted that
were not mentioned here today, and I represent part of them.
And they go further south of Fresno, and the map doesn't go
that far, unfortunately. But I am talking about those in Kern
County that also are part of this direct and indirect impacts.
Mr. Peltier, do you believe that the flows that are going
to be required, the pulse flows, will impact the availability
of what is referred to as 215 water that is contracted by the
Kern County Water Agency and others?
Mr. Peltier. Yes.
Mr. Costa. You do. Who are the other parties that could be
impacted? Can you name beyond the Kern County Water Agency?
Mr. Peltier. Well, to the extent that--and I couldn't begin
to quantify or--
Mr. Costa. No, I understand.
Mr. Peltier.--put it in a magnitude sense. But I would say
in the larger sense, the entire operation of the unit is going
to be altered in some fashion to accomplish the settlement. And
I think the tools that the Friant Division contractors have
sought in the settlement agreement are tools to allow a
positive kind of, I don't want to use the term reoperation, but
modification of the way that the system operates.
There will be more water going down the river. There will
be less water going down canals at times. And yet we have some
tools to make sure that--
Mr. Costa. Yes, I understand. Let us quantify that. I have
some other questions I want to ask.
The amount that I have heard as far as the Kern County
Water Agency is 90,000 acre-feet that they have been able to
purchase under 215, and that they believe it could be cut back
down to 40,000 acre-feet, which would be a loss of 50,000 acre-
feet for them on a regular basis. Do you believe those numbers
are correct?
Mr. Peltier. I don't have the analysis to--
Mr. Costa. Well, for the record let us submit at this
point, unless someone testifies with other information, that it
is a loss of 50,000 acre-feet of water.
Mr. Candee. Congressman Costa, this is Hal Candee. Can I
take a stab at that question? Because I know that the issue has
come up. The question is, as compared to what?
My understanding is that all of the Friant contracts give
them a first right to 215 water. And so if there is a court
order to release water from Friant Dam, my understanding is
that they would most likely exercise that right to take that
215 water. So I guess the question is, are you comparing what
Kern County might have gotten in a windfall in--
Mr. Costa. No, I am not talking about a windfall. They
believe that they contract, they have been able to purchase up
to 90,000 acre-feet of water on an average basis.
Mr. Candee. When there is no flow release requirement.
Mr. Costa. Right. And they believe that that is going to be
cut back to allow them maybe 50,000 acre-feet or less.
I have other questions, and I am going to get to you, Mr.
Candee, so hold on a second, OK?
Mr. Chrisman, does the state plan, under the settlement
agreement, to do any analysis to try to ensure that there are
no impacts?
Mr. Chrisman. Absolutely. I mean, we have committed to that
up front, and again with our--
Mr. Costa. And you have set aside money for that purpose?
Mr. Chrisman. If we haven't, we will, let me say that. I
can't tell you whether we have set aside money for that purpose
yet or not.
Mr. Costa. Will you include in that analysis whether or not
there will be any impact on the state water project?
Mr. Chrisman. Absolutely.
Mr. Costa. OK. Mr. Candee, it was spoken of earlier about
the benefits of the agreement, and I agree there are numerous
benefits. And that is why we are hopeful that this restoration
effort will be implemented, and that we will be able to pass
enabling legislation.
But I also want to ask you whether you believe, in the
event--and it has been part of the discussion as of yesterday
on third-party impacts--as to whether or not the Delta is
included when we are talking about fisheries, and if, in fact,
the fishery count is included in the Delta area in terms of the
spring run.
Do you believe that this could impact the pumps, the state
pumps, in terms of the exporters of water not just to the
Central Valley, but result in a loss of water to possibly
Southern California, which would be obviously the metropolitan
district that gets up to 700,000 acre-feet of water depending
upon the year from their supply as a state water contractor.
Mr. Candee. Several points. First of all, I think all of
the parties made clear we do not intend or anticipate material
adverse impacts. Second, there will be benefits in the Delta
when--
Mr. Costa. No, we have established the benefits.
Mr. Candee. Right.
Mr. Costa. I am asking you the question, if spring run were
included to the area of the Delta as it relates to the pumping
regime, do you believe, in fact, that that could negatively
impact the ability of exporting water south of the Delta for
those who have established contracts as state water
contractors?
Mr. Candee. And I think the answer is the National Marine
Fisheries Service and others do not know the answer to that,
because they have already--
Mr. Costa. But it could.
Mr. Candee. Well, they have the regulatory tools to avoid
that. So for example, the consultation on that question, salmon
impacts in the Delta, is currently reopened, and they are
reconsidering what the protections are. So they have the
flexibility. So I think--
Mr. Costa. They have the flexibility, but they also--we
know the contentious nature of water debate in California. And
we know the pressures that are placed on it. And the fact is
that the pumping regime has been hotly debated. The notion of
increasing the pumping capacity is opposed by you and many
other folks under the Harvey Banks approach.
So the answer to the question--I mean, you may artfully
choose to answer any way you want. But the fact of the matter
is yes, this could, if the salmon spring run are included in
the Delta, could potentially impact the pumping regime on the
state project.
Mr. Candee. Now, it is interesting. We had so many meetings
with all the third parties, including the people within the San
Luis Authority who receive exports. There was a specific ask
for the take protection, for example on the tributaries and
upstream. There was a recognition--this was made very clear to
us by some representatives of those third parties--that when
you get into the Delta things get more complicated.
Mr. Costa. Correct.
Mr. Candee. Because the whole theory about the experimental
population.
But in terms of understanding how the existing take limits
work and what the timing will be, I don't think the studies
have been done yet to demonstrate that there is a risk there.
We have, nevertheless, been working, as you know, yesterday
we--
Mr. Costa. But if the studies did conclude that there is a
risk, then it could impact them.
Mr. Candee. Yes, the theoretical possibility that over 20
years--
Mr. Radanovich. The gentleman's time is up. If you want to
finish, quickly finish.
Mr. Candee. Anyway, I am not sure where we are going to go,
because there is theoretically, there is a potential--
Mr. Costa. No, but this is a risk we are all taking, and it
is the reason that we have to provide these predictions. And
why, in my opinion, we cannot be having any degree of ambiguity
that would create doubt in people's minds as to these third-
party impact.
Mr. Radanovich. The gentleman's time is up. Mr. Nunes, you
go ahead. You are recognized.
Mr. Nunes. Oh, well, thank you. Mr. Candee, I want to
follow up on, I didn't understand your answer to Mr. Costa's
question involving the 215 water with Kern County Water Agency.
And I also have some information about the other dialogue we
were having before.
OK, but can we clarify that first? You said that they will
lose their 215 water under this agreement?
Mr. Candee. No, I am not saying--again, I don't think
people know. Part of it depends on, as you know, 215 water is
sporadic, and it is sometimes available in very large amounts.
I assume Mr. Upton would know better than any of us about how
to adjust this question.
But my understanding, we have talked about this during the
settlement process, is right now the Bureau of Reclamation,
nobody has an entitlement to 215 in terms of a guarantee of
when the water is available, except that the Friant water users
do have in their contract--
Mr. Nunes. But the question that Mr. Costa asked
specifically on the 50,000 acre-feet of water annually that
they would lose, is that true?
Mr. Candee. What I was trying to get at is it is hard to
say that they are losing 215 water under the settlement. It
depends on what you are comparing it to.
First of all, I don't think people know. But the second
thing is that if the alternative is a court order requiring
more flows to be released from the dam, and Friant has the
option of taking all of the 215 water itself, it could be that
they would lose more by not settling. That is the point I was
trying--
Mr. Nunes. So we are back to the point of if Congress
doesn't act, the judge will.
Mr. Candee. No, no. The settlement goes into effect when
the settlement is approved by the Court.
Mr. Nunes. You just said, though, if we don't--
Mr. Candee. If we don't settle. I said if we don't settle.
Mr. Nunes. Then the judge will rule.
Mr. Candee. Well, I mean, nobody can predict what a court
is going to do. But I think the theory that--
Mr. Nunes. You are basically saying Kern County would lose
more if the judge ruled, so you better do the settlement. That
is what you said.
Mr. Candee. Mr. Nunes, your constituents have spent the
last year working with NRDC and the Federal government trying
to come up with a fair package settlement to avoid litigating
the issue. Nobody knows exactly what the Court is going to do.
But I think when Chairman Radanovich and Senator Feinstein
approached us, they said try to come up with a program that
works for both sides. And we did.
In terms of the 215 water--and I have talked to the Bureau
of Reclamation about this for many, many years--they have
always told me if it ever turns out that we have to release
water from Friant Dam, the first thing we would do is try to
avoid impacts to the long-term contractors. So if there were a
way we could use surplus flows, flood flows, or 215 flows, we,
the Bureau--
Mr. Nunes. I understand. But, I mean, you did make that
point, though, that if we don't do this, that the judge would
rule, and Kern County would lose more water.
Mr. Candee. No, no. I mean, I know that Kole Upton said
that in his opening statement.
Mr. Nunes. Can I go to another question?
Mr. Candee. Please.
Mr. Nunes. In regards to the salmon, to date, has anyone
submitted documentation concerning the probability that the
effort to reintroduce Spring Run Salmon will succeed?
Mr. Candee. Yes. That was the subject of enormous amount of
expert testimony in preparation for the trial. There were
depositions, there were reports on both sides. And you know, I
think that material is available; we can make it available if
you don't already have it.
By the way, I wanted to mention I do have the site for
that, you were asking about whether there was any precedent for
the Federal government asking for legislation--
Mr. Nunes. Yes, but let us finish this question on the fish
first. So have you estimated the number of salmon that would be
returned? Would the documentation that you said has been
submitted?
Mr. Candee. Yes, I think there is some discussion there.
But in the settlement, I think all of the parties felt that
they didn't want to get into a lot of the numbers at this
point, and instead we have created a process where the state
fish agencies--
Mr. Nunes. But do you have a specific number of how many
fish? I mean, will it be three fish? Five million fish?
Mr. Candee. The settlement is explicitly silent on that
subject.
Mr. Nunes. But I mean, it is the job of the Congress to
understand. I mean, you are asking us to spend $800 million,
which probably means $2 billion, to restore salmon on the
river. That is what you are basically asking us to do.
So I mean, I think it is our job and our duty to understand
how many fish are going to be returned. Do we have any sense of
what would happen if you put the water down the river, you
reintroduced the salmon? How many salmon are we going to get?
What is a reasonable expectation?
You know, it has been reported you--numerous newspapers
have come out now, and they have editorialized about how
wonderful it is going to be to be poaching salmon on the San
Joaquin River again. But is that a reasonable expectation?
Mr. Candee. The goal of the effort in the San Joaquin, like
the goal of the efforts that many water users are working on
actively with the Bureau of Reclamation and the State of
California and Sacramento Valley, is to rebuild the Spring Run
population as much as we can. And they are having, as Jason
stated earlier, they are having some success. The numbers are
up.
Mr. Nunes. Well, maybe Jason can tell us. Jason, or Mr.
Peltier, do you know how many fish are going to be restored to
this river? Is there any documentation?
Mr. Peltier. I guess I am with Hal; I can't answer that
question at this point. There are studies and hopes and
expectations. But do we have--
Mr. Nunes. But you are asking us to pre-authorize and
appropriate $800 million to bring back fish that we don't know
will be back, for sure.
Mr. Upton. Yes. And I would go further and say that between
the Federal and state governments and local interests, over the
last decade we have spent $1 billion on fishery improvements in
the Sacramento Valley. We have seen response in the
populations.
But when you ask a biologist what is the population-level
effect of this $80 million fish screen, they will say I can't
tell you. Even though the fish are right there, and it is real
time as opposed to us looking ahead 20 years on the San
Joaquin.
So it is a very, very difficult world in terms of tracing
cause and effect between investment and result on fish
populations.
Mr. Radanovich. The gentleman's time has expired.
Mr. Nunes. Thank you, Mr. Peltier. Thank you, Mr. Chairman.
Mr. Radanovich. You bet. Mr. Cardoza.
Mr. Cardoza. Thank you, Mr. Chairman. I want to reiterate
that I am in support of trying to do this, as we have set out
to do. Because I think there are some tremendous benefits.
I think it is important, though, that the public go in, as
I said in our meeting yesterday in Senator Feinstein's office,
with our eyes wide open. And we know all the impacts and
ramifications, the positives and the negatives. And I think it
is really important that the public not get oversold on the
impacts.
You know, much has been said about the potential water
quality benefits of this settlement. But we really don't know,
because the pulse flows will happen at times that don't really
benefit, from my understanding, the Delta. I mean, all water,
all freshwater, you would think, would be beneficial. But the
reality is that if you send it down certain parts of Reach 4B,
we could actually end up leaching salt into the river that is
currently buried a little deeper, because the water table in
certain parts of Reach 4B is so shallow that it may actually
provide the wick to wick up salt, and send additional salt down
the river, if the flows are not sufficient to dilute it. And
you could actually see a degradation of water quality at
certain times of the year.
That is my question. Jason, Mr. Peltier, and Secretary
Chrisman, is that not your understanding as well? That we need
to study this and find out exactly what will happen before we
send water down certain stretches of the river.
Mr. Chrisman. From a state perspective, yes. We really
haven't done any studies at all yet on what additional flows
down the San Joaquin will do to water quality, so we are just
going to have to study it to determine it.
Mr. Peltier. I would concur. And I think you are correct
that there are many issues. We could talk about temperature
benefits and temperature downsides. We can talk about
accretion/depletion. There are a bunch of factors.
And that is exactly why, certainly in the discussions
yesterday and the discussions for months now, we have
recognized, and the settling parties recognize the magnitude of
uncertainty with that reach, and have kind of pushed off and
said until we know more, we can't make decisions.
Mr. Candee. Congressman Cardoza, actually in August of 2004
the Bureau of Reclamation did a study, sort of a pilot
recirculation study, where they released Delta water down into
the river, and found that there actually was a significant
improvement in salinity.
Also, everybody needs to remember there is a provision for
buffer flows. And so the flow regime that is in the hydrographs
can be augmented at different times of the year.
There are also different kinds of water quality issues.
There is a Stockton DO problem, there are obviously fishery
issues that are covered by some of the water quality hearings
and orders out of the State Water Board.
So I think it is more complex than just taking one point in
the Delta and looking at the hydrographs, and trying to match
up.
Mr. Cardoza. You are absolutely right, and I concur with
that. By the way, the dissolved oxygen questions were
significantly benefitted this summer by the aerators. Don't
know if that will always happen. But the point is that we can
do good things in the Delta.
Mr. Peltier. I am not sure, I don't know the details of the
recirculation study that was done by Reclamation. But I am 99
percent sure none of that recirculation occurred in Reach 4B.
Mr. Cardoza. Well, that was my next question, so I am glad
you point that out.
Mr. Peltier. So what the geology is and what the salt load
is, you are exactly right, we have unknowns to discover, to
find answers to.
Mr. Cardoza. The point that I want to make is we all want
to do this. But the skepticism you are hearing from some of us
is that we want to make sure that the agreement that we, in
fact, pass from this Congress does not do what we have all
stated here that we don't want to have happen. We don't want
those third-party impacts. Everyone on the panel said that.
It is our job to make sure that the legislation we craft
adds another layer of protection, beyond what the settling
parties have done, to make sure that, in effect, we don't harm
the environment, because there is that potential. And let us
all understand that when we don't know everything that is going
to happen, we don't know everything that is going to happen.
And we just have to make sure that none of us are voting
for something that ends up like a Kesterson, where we intended
a drain that was going to solve a lot of problems in the Valley
and a lot of problems for the State of California; and in fact,
we almost had an ecological disaster there. So that is what I
am trying to avoid.
Mr. Radanovich. Thank you, Mr. Cardoza. Mr. Costa.
Mr. Costa. Thank you very much. Mr. Chrisman, one question
I am not sure I got a clear answer on. Is it the intent, for
the record, that any of the costs to this settlement agreement
be shared by the State Water Contractors?
Mr. Chrisman. You know, I can't answer that right now. Just
for the record also, I mean, we have significant dollars, as
has been pointed out by--
Mr. Costa. No, I understand the bond measure. I am
supportive of Prop 84. I am trying to do all the right things.
Mr. Chrisman. But I don't know the answer to that question
yet.
Mr. Costa. OK. Well, I think it is important that we get a
clarification.
Mr. Chrisman. Sure, you will.
Mr. Costa. Because thus far the money that I know that has
been identified for the settlement agreement from the state has
been out of the bond measure.
Mr. Chrisman. Yes, sir.
Mr. Costa. And if, in fact, it is being contemplated that
state contractors have to share some of these costs, then they
need to know it.
Mr. Chrisman. Yes.
Mr. Peltier. If I could answer that. I have not heard any
discussion or any contemplation that the state contractors
would incur any costs.
However, there may be scenarios in the future where they
derive benefits from this restoration program and reoperation
of the system, to some extent. I would say, you know, if
benefits are derived, then they should, you know, I mean they
would have a call. Do they want the benefits? And if they want
benefits, then there is a cost that goes with them at times.
Mr. Costa. Well, that relates to me another question,
because I think there are potentially, as we have all stated,
benefits, Mr. Peltier. But will the recirculation efforts that
are being contemplated under the agreement that have benefits
also potentially take water away from state contractors? I
mean, how well have you figured that part out?
Mr. Peltier. That is not, I would say, well defined.
However, I can't imagine a--
Mr. Costa. It is not the intent.
Mr. Peltier. Yes. I can't imagine going into the
development of a recirculation plan where one of the first
principles is we are not going to jump ahead of anybody's
existing need or use. And the principle would be we are looking
for where there is surplus capacity to use.
Mr. Costa. Let me, final question to you, Mr. Peltier,
since you probably have a larger breadth of knowledge of
western states' efforts and various agreements, whether they be
Indian settlements or other efforts that have taken place on
the Columbia. Certainly you and I have worked together over the
years; I know you are very well versed in terms of California
water challenges that we have worked on.
The parties to the agreement have a high and a low number
in terms of the costs of the settlement: $250 million on the
low end and $800 million at the high end. And obviously the
studies will make it clear. And of course, whether or not we
are spending these monies today or whether we are talking about
spending these monies, vis-a-vis inflation, for 2015 or 2020
makes a big difference, I think.
Having said that, if I gave you $800 million today and said
I want to restore fisheries in western states, Mr. Peltier,
tell me where you could take that $800 million and get the best
bang for your buck in restoration of salmon fisheries? Off the
top of your head. Whether it be in California or on the
Columbia. Is this the best place that we have a chance to
restore Chinook salmon?
Mr. Peltier. I don't have a snappy answer to that question.
Mr. Costa. It didn't have to be a snappy answer.
[Laughter.]
Mr. Peltier. It could be a thoughtful answer?
Mr. Costa. It could be a thoughtful answer.
[Laughter.]
Mr. Peltier. Oh. You know, there is a lot of money being
spent in a lot of places, and the Columbia is a great example.
There is a lot of money being spent.
Mr. Costa. Over billions of dollars.
Mr. Peltier. Yes. And we have spent a lot in California.
And my earlier comment about--
Mr. Costa. Let us keep it local. The Red Bluff diversion
effort that has been successful. What could $800 million do
there?
Mr. Peltier. Eliminate any fraction of a barrier that
remains in undercurrent operations.
Mr. Costa. And how much more fish would be produced as a
result of that?
Mr. Peltier. I can't answer that. I don't know the--
Mr. Costa. A lot more?
Mr. Peltier. No, I can't answer that. Because I don't know
the increment of--
Mr. Costa. I think it is an interesting question to ask.
Because what we are talking about here I think, and the point I
am trying to make, is the restoration effort and the agreement
is more than just about restoring salmon, which is, everyone
acknowledging the goal, but no one knows with certainty that we
will be able to do that.
Mr. Peltier. Right.
Mr. Costa. And if simply we are talking about restoring
native salmon to California or elsewhere, we know we could put
money in other areas with more certainty in terms of results.
Mr. Peltier. And I think it is really important to keep in
mind that this is about a lot more than salmon. It is about
repairing a corridor, it is about recreation, it is about
communities looking out their back door and seeing a flowing
river. It is about migratory songbirds, it is about a lot of
things.
Mr. Costa. Thank you.
Mr. Radanovich. Thank you, Mr. Costa. I am going to ask one
question, which I hope will be the last question of this panel,
because it is two and a half hours into this hearing and we do
have a second panel to hear from.
But I did want to ask this question of Mr. Upton, Mr.
Peltier, and Mr. Candee. Over the past 24 hours or so you have
been working with third parties and others to address concerns
relating to Reach 4B and also some remaining ESA issues.
My understanding is that you have reached agreement
regarding Reach 4B, and that you are still working on some ESA-
related issues.
What I want to hear from each of the three of you is that
you are committed to resolving these matters very shortly,
hopefully within the next couple days.
Mr. Upton. Yes, Friant has definitely committed to that,
Congressman. And let me say that our view in Friant is we are
not coming to you and demanding that you approve this
settlement or anything like that. What we are doing is we are
looking for leadership. We are saying this is our settlement;
you have the broader perspective from society in general, so
you have to look at it from that perspective. And help us to
make this settlement so that it addresses all of society's
concerns so that we can move forward.
Mr. Radanovich. Thank you.
Mr. Candee. Yes, Mr. Chairman. We have invested a lot of
time already, and as you indicated, I think we have made great
progress on 4B. The ESA issues are obviously more complicated
and more difficult, and there is a broader array of interest in
the U.S. Senate, for example in California.
We are committed to continue that process. I am not sure
Senator Feinstein has given us an option not to.
Mr. Radanovich. Good.
Mr. Candee. But you know, obviously all sides are going to
need to realize we are not going to all get everything we want.
So it is a complicated one.
Mr. Radanovich. Very good. Mr. Peltier.
Mr. Peltier. Yes, we are committed to work, and are
optimistic that the tools exist to accomplish the assurances
that folks are looking for. And we are confident that, you
know, your part is not so much those tools, but creating the
framework for how those tools will be deployed.
And I think the National Marine Fisheries Service is fully
engaged there. They have the regulatory lead, and we are very
appreciative of their engagement.
Mr. Radanovich. All right, thank you. Is there any other
questions of this panel?
Mr. Cardoza. Mr. Chairman, I have one follow-up question.
Mr. Radanovich. We need to wrap up, guys. So I will
recognize you, Mr. Nunes, and then Mr. Cardoza.
Mr. Nunes. Thank you, Mr. Chairman. Mr. Candee, I know that
you can't wait to speak, because you have found a precedent.
And now I have done my homework, too, and I have found three
precedents. So I am not going to tell you which ones I found,
but I want to know if your precedent is one of the three that I
have.
Mr. Candee. The question is whether we asked the same
people. No, I was enjoying the irony that NRDC did not ask for
legislation as part of the settlement, and it was really the
Federal government who felt they needed to come to you for
legislation.
So I did ask and check in with some folks in the Federal
government. And one of the most recent examples is the Torres-
Martinez settlement agreement where--
Mr. Nunes. I knew you were going to say that one.
Mr. Candee. I figured you had already done your homework. I
figured you could give me the cite.
Mr. Nunes. And let me tell you that there is a difference
between that one, because, you know, it is on Native American
lands, dealing with a sovereign nation, so to speak, which is
much different than the San Joaquin River and its importance to
the State of California and the country as a whole. I mean, I
respect--
Mr. Candee. I understand the difference, but I am not sure
it is so material, so relevant to the question you have asked,
which is does the U.S. Government ever enter into settlements
where they feel they need Congressional action to provide the
authority, and include that as part of the settlement
agreement. My understanding is that is exactly what happened in
this Coachella Valley-Imperial negotiation, where they felt
they needed that authority, and they actually drafted the
legislation, and then it was passed. It is part of Public Law
106-568.
So Congress not only has been presented with that situation
before, but has approved that situation before. So I know--
Mr. Nunes. It is pretty rare. It is pretty rare, Mr.
Candee. And that was a very, very different from this. And that
is not to say I am opposed to enacting legislation; I am very
supportive of enacting legislation as long as it, you know,
keeps water in my district whole, as long as it restores salmon
to the river, as long as it repairs parts of the river channel
that need to be repaired, and to make sure that there are no
third-party impacts anywhere. I am very supportive of, and I
hope that we can come to a resolution on this. And I think this
committee has a responsibility to do that.
And the Congress, since the Congress was the one that made
a decision to dry the river, they should be the ones to rewet
the river under the terms of the people by elected
representatives.
Which, I have one more question on that.
Mr. Radanovich. Quickly.
Mr. Nunes. And the Technical Advisory Board. Why was NRDC
provided a spot on this Technical Advisory Board? Because
didn't you bring a lawsuit on behalf of the people?
Mr. Candee. There are a lot of different seats. The State
of California has two seats, the Friant and NRDC parties will
jointly select independent people to have some of the seats.
But really, in addition to all of the other public
participation and all of the other committees that I am sure
the Federal and state government will be setting up, but I
guess here is my problem with this. We have the Department of
Fish and Game, we have Fish and Game, we have the Bureau of
Reclamation, we have the entire, you know, huge government
entities that are out there within the government, numerous
entities. Why are we creating a new entity, Technical Advisory
Board? And why would you have a seat at that table?
Mr. Candee. I think it is very straightforward, actually.
One of the things that we were presented with in people asking
us to sit down at the negotiating table to try to come up with
a settlement was go in more slowly. Let us phase this in. Let
us not just start turning on the tap. Let us do all this
construction work, all this improvement work, and then phase in
over time.
And we said look, we have a very strong interest in how
that happens. And Friant said the same thing. Friant said we
have a very strong interest. And even though we both love the
Interior Department very much, we would like to have a role and
be able to participate. We have to safeguard our own investment
of time and effort in crafting the settlement to make sure it
is implemented in a way that we find, you know, successful.
So that is really a way, and it is unique to a settlement,
a grievance situation, I think.
Mr. Nunes. So unique that it is borderline
unconstitutional. I mean, this is really an area where, you
know, that I have a real problem with, in terms of Friant--and
I am not just saying this to NRDC. But NRDC and Friant playing
government and playing how they are going to create legislation
and come up with legislation--
Mr. Peltier. Could I comment?
Mr. Nunes. Yes, Mr. Peltier.
Mr. Peltier. We do not anticipate any of the Federal
agencies, and I am sure the state would echo this, ceding any
of our authority or responsibility.
Mr. Nunes. But don't you already have that responsibility
to do all the things that are in this settlement? Within your
department and California?
Mr. Peltier. No, we don't have all the authority to carry
out--
Mr. Nunes. I mean, if we enacted legislation to do this,
why would you need this Technical Advisory Board?
Mr. Peltier. Well, it will be a part of the bigger public
involvement process. We would imagine the establishment of a
Federal advisory committee, a FAC committee, patterned somewhat
after the Trinity River Restoration, where we would have the
broad suite of agencies and publics involved.
The TAC, as far as the NRDC and Friant, would be in some
ways their means of engaging in the broader public process. So
there will be no, the restoration administrator or the FAC
would not have any authority vested in them from any of the
existing agencies.
Mr. Nunes. Thank you, Mr. Peltier. Thank you, Mr. Chairman.
My point on this is not that I am against this Technical
Advisory Board. I just wanted to know why it is part of the
settlement. That is the part, I think the important part of
this hearing is making sure that we flush out all these issues,
so that we have a good understanding as we move forward on
legislation of what we are doing, and why.
Mr. Radanovich. Thank you, Mr. Nunes. Mr. Cardoza, you have
one last question?
Mr. Cardoza. Actually I have two now that we have just
engaged in this other topic.
I want to say that I support the Technical Advisory
Committee. I think it is an important part of this process.
But, Mr. Peltier, don't you think it is also important that
the third parties have a seat at that Technical Advisory
Committee, since they are so potentially impacted by this
process? Mr. Costa and I are asking this question jointly, by
the way.
Mr. Peltier. That is not what is envisioned in the
settlement agreement. What is envisioned in the settlement
agreement, however, above and beyond the TAC, the TAC being
kind of NRDC and Friant's means of organizing and inputting
into this bigger Federal/state combine which would have--that
is where the bigger scope of public involvement would occur.
And it in no way diminishes that, in no way substitutes for
that.
We have a long history of having Federal advisory
committees be the locus of activity, whether it is on the
Colorado River or the Trinity River or elsewhere.
Mr. Cardoza. I understand that, Mr. Peltier. And that is my
point, that if you are going to have this, and it is going to
have impacts, that is going to be the locus of communication,
then we should have all the locusts in the room. And that is
why I am so committed to having our third-party folks as part
of that committee, too. And so that is something that I will
pursue with the two Chairs as we move forward with the
legislation.
My question. When I asked my first question today with
regard to ESA, I got a lot of different nuances to that
question. And it was clear to me that everyone committed to ESA
protection for the tributaries. But I am also concerned about
the ESA protection for the Delta, because we have the Tracy
Pumps in the Delta, we have a chondrocostal water district in
the Delta. We have a Santa Clara water district in the Delta.
We have a number of folks. And I understand the challenge,
frankly. Because you have another endangered species to the
north that you are trying to protect; they are going to
intermingle.
But we have to come to some kind of resolution. And I want
everyone to state that they are committed to trying to figure
out a resolution, because the problem doesn't stop at the last
tributary. And that is a real challenge for us.
So, Mr. Upton, I will let you start with that.
Mr. Upton. Well, we are committed to that, Congressman. And
as I pointed out--
Mr. Cardoza. The Delta, as well.
Mr. Upton. I am just a simple farmer, so I can't tell you
how you write the language to address that. But hopefully there
are some people smart enough to do that, because we are
committed to doing it.
Mr. Cardoza. Thank you.
Mr. Candee. Again, as I indicated before, I think the Delta
is kind of a unique situation. There already is take protection
for listed species in the Delta, so the situation on the tribs
is unique because there is no Spring Run situation there. So
that is why I think we have all been tackling that first.
But you know, there already are protections, there already
are biological opinions in place, whereas on the reintroduction
of spring run in the tribs, we are looking at a future
biological opinion and a future incidental take statement. In
the case of the Delta, we already have existing take
protections that are in biological opinions, and they respond
to the numbers, et cetera.
So I think it is complicated. But in terms of committing to
working with you to see if we can find a way to meet
everybody's interests, obviously we would like to do that, and
that is what, as you know, we have already been working on.
Mr. Cardoza. We have, but I just, I needed to get that in
the record. Jason, Secretary.
Mr. Peltier. Yes. And I would say in addition we want to
find something, a way to address the concerns, via process and
use of existing tools on the river and in the Delta, that has
this legislation not coming into the arena of being a National
Environmental Species Act lightning rod, where there is some
clear Federal exemption or something that would cause people to
go overboard, or to go--
Mr. Cardoza. We know about lightning rods in this
committee. We have experienced that. Richard?
[Laughter.]
Mr. Peltier. My concern is even if we find something that
we, in the confidence of a meeting room and with the experts,
feel does not prejudice the process, and yet provides the
comfort, there are a bunch of religious issues associated with
the Delta that go beyond rational discussion. And I, frankly,
fear very much that our ability, we might be able to find
comfort in a room, but outside the room the answer is going to
be no, no matter what. And the response is going to be no, that
is unacceptable, we can't go there.
Mr. Cardoza. That is our challenge. That is our challenge.
Mr. Peltier. Yes, that is my concern, too.
Mr. Radanovich. Thank you, Mr. Cardoza. With that, I want
to thank the panel for being here. Your testimony has been very
valuable. And you may be dismissed now. We will call up our
second panel.
I would like to mention that Ranking Member Napolitano did
have four questions that we are going to submit for the record,
and leave time available for written responses to, as well.
[Recess.]
Mr. Radanovich. If our next panel would be seated. The
second panel consists of Mr. Tom Birmingham, the General
Manager/General Counsel of the Westlands Water District in
Fresno, California; Mr. Allen Short, the General Manager of
Modesto Irrigation District and representing the San Joaquin
Tributaries Association in Modesto, California; Mr. Ken
Robbins, General Counsel of the Merced Irrigation District in
Merced, California; Mr. Steve Chedester, the Executive Director
of the San Joaquin River Exchange Contractors Water Authority
in Los Banos, California; and Ms. Lynn Skinner, the owner of
Wolfsen Farms in Los Banos, California.
Ladies and gentlemen, welcome to the Subcommittee. We will
hear from each of you, with five minutes worth of testimony,
and then open up the dais for questions if you wish. And again,
thank you for being here.
I will start with Mr. Birmingham. Tom, if you want to
start, we will just work right on down the line and then open
it up for questions. Welcome.
STATEMENT OF TOM BIRMINGHAM, GENERAL MANAGER/GENERAL COUNSEL,
WESTLANDS WATER DISTRICT, FRESNO, CALIFORNIA
Mr. Birmingham. First I want to thank you for the
opportunity to appear today to testify about what is critically
important, an issue critically important to the State of
California.
Before I begin, I need to ask leave of the Committee.
Apparently there was some problem with the physical delivery of
copies of my testimony yesterday. An electronic copy was
received within the time prescribed by the Committee's rules,
but copies were not delivered. And so I would ask that my
testimony be received into the record of the hearing.
Mr. Radanovich. With no objection, so ordered.
Mr. Birmingham. Thank you very much, Mr. Chairman.
I would like to begin my testimony by expressing, in
unambiguous terms, as Members of the Committee have, Westlands
Water District support for the implementation of this
settlement agreement.
Westlands, more than any other agency in the Western United
States, understands the chaos and economic disruption that
occurs when hundreds of thousands of acre-feet of water are
involuntarily taken away from farmers who have historically
relied on that water.
The Friant water users and the Bureau of Reclamation have
done a risk assessment. And they have concluded that this
settlement is the best, the best that they can make of what
potentially could be a very bad situation. And so we absolutely
support their decision to pursue this settlement.
Having said that, as the Members of the Committee have
outlined here today, in their present form, the settlement
agreement and the San Joaquin River Restoration Settlement Act
create risks that burdens associated with the implementation of
the settlement agreement may be shifted to other parties. And I
would just like to briefly highlight four.
One is the use of CVP water. The settlement agreement and
the Restoration Act essentially establish a cap on the amount
of water that can be taken from the Friant Division of the
Central Valley Project for purposes of restoring this fishery.
But there isn't a cap on the total amount of CVP water that can
be taken. And this can be easily fixed by an amendment that
says the only Central Valley Project water that will be used,
absent acquisition from a voluntary seller, to implement the
settlement will be the water released from Friant under the
terms of the settlement itself.
A second is the recirculation, the recapture of water
released from Friant to minimize water supply impacts on the
Friant Division. As each of you know, the capacity to pump
water in the Delta is limited. And it is currently dedicated,
in virtually all circumstances, to existing uses. And so we
think that the legislation needs to express unambiguously that
the use of the pumping capacity to recirculate water will be
subordinate to the existing demands and uses the pumping
plants.
Third is ESA protection. And the Committee has talked an
awful lot about that with the first panel. But I just have to
express my complete disbelief of comments made by Mr. Candee
with respect to that issue.
Mr. Cardoza and Mr. Costa and Mr. Nunes each asked him
specifically, do you support ESA protection in the Delta. And
the answer that he gave you to that question is the most
disingenuous answer I have ever heard.
He said to Mr. Cardoza, well, there are already take
limits, take protection under biological opinions that exist
for these salmon in the Delta. Well, what he failed to mention
is that his organization has filed a lawsuit to challenge those
very protections in the biological opinions.
What the Members of this committee have said is critically
important. If we are going to be able to implement the
settlement without endless litigation, this legislation has to
be unambiguous that there will be no third-party impacts,
including ESA protections for the Delta.
And then finally, I would like to comment on the potential
risks associated for Central Valley Project contractors in
connection with payment of capital. We want to make sure that
the fact that the Friant capital payments are being devoted to
this project, which we support--which we support--doesn't
result in other CVP contractors having to pick up those same
capital payments under laws pertaining to the repayment of
capital.
With that, I will conclude. And I would be happy to respond
to any questions that you may have. But again, I want to
express Westlands Water District support for the efforts of the
Friant Division and the Bureau of Reclamation to minimize the
amount of water that they otherwise would lose potentially
under an adverse judicial decision.
[The prepared statement of Mr. Birmingham follows:]
Statement of Thomas Birmingham, General Manager/General Counsel,
Westlands Water District
Mr. Chairman and members of the Subcommittee, my name is Thomas
Birmingham, and I am General Manager/General Counsel of the Westlands
Water District. I appreciate the opportunity to testify today on ``The
San Joaquin River Restoration Settlement Act.''
At the outset, I would like to express our appreciation for your
decision to conduct this oversight hearing and take testimony from
agencies that are not party to Natural Resources Defense Council v.
Rodgers, the litigation that would be settled through enactment of the
San Joaquin River Restoration Act. Resolution of this longstanding
litigation would be historic, and the settlement would bring water
supply certainty to a portion of the San Joaquin Valley that is of
critical importance to the agricultural economy of the State of
California. However, to avoid creating uncertainty and risk for other
portions of the Valley, it is critical that the settlement be
implemented in a manner that does not shift to other agencies
unwarranted burdens associated with the San Joaquin River restoration
program. I am confident that your decision to hear from ``third
parties'' will facilitate the development of amendments to the San
Joaquin River Restoration Act that will avoid third party impacts while
not frustrating the agreement of the settling parties.
1. Westlands Water District Experience with Water Shortages
Westlands Water District (Westlands) is a public agency of the
State of California, which serves irrigation water to portions of the
westside of the San Joaquin Valley in Fresno and Kings counties.
Westlands is comprised of more than 605,000 acres, and the demand for
irrigation water is 1.4 million acre-feet per year. Historically, that
demand has been satisfied through the use of groundwater, water made
available to the District from the Central Valley Project under
contracts with the United States for the delivery of more than 1.15
million acre-feet, and annual transfers of water from other agencies.
Westlands is one of the most fertile, productive and diversified
farming regions in the nation. Rich soils, a good climate, and
innovative farm management have helped make the area served by
Westlands on of the most productive farming areas in the San Joaquin
Valley and the nation. Farmers in Westlands produce over 60 different
high-value, commercial crops that are sold both domestically and
internationally in the fresh, canned, frozen and dry food markets.
However, like every other region of the arid west, the ability of
Westlands farmers to produce these crops and generate the associated
economic activity depends on the availability of an adequate, reliable
source of water.
Westlands' experience with the implementation of the Central Valley
Project Improvement Act (CVPIA), Pub. Law 102-575, is illustrative of
what can happen to an agricultural region like the area served by the
Friant Division of the Central Valley Project when significant
quantities of water are involuntarily reallocated from irrigation use
to fish and wildlife use. Water deliveries to Westlands from the
Project began in 1967, and up until 1991, those deliveries were highly
reliable and adequate to meet the demand in Westlands for irrigation
water. Indeed, from 1967 to 1991, Project water was the principal
source of water for irrigation within Westlands, and the only reduction
in Project water supplies resulted from the extraordinary drought
conditions in 1977, the driest year on record in California. However,
enactment of CVPIA made Westlands' Project water supply both unreliable
and inadequate. The CVPIA was implemented by the Department of the
Interior in a manner dedicated more than 1,200,000 acre-feet of Project
water for the restoration and enhancement of fish and wildlife. Much of
this water was taken away from farms, ranches and business that had
relied on it for decades. Contrary to the assumption at the time of
CVPIA's enactment, that it would reduce water supplies by approximately
10% Project wide, virtually all of the water supply reductions
resulting from implementation of CVPIA were imposed on south-of-Delta
Central Valley Project agricultural water service contractors. The
reliability of water supplies for south-of-Delta water service
contractors went from approximately 92% in 1991 to approximately 50% in
2000, when the CalFED Record of Decision was adopted.
In response to chronic water supply shortages caused by CVPIA,
Westlands farmers have had to rely more on the use of groundwater as a
source of irrigation water. In 2004, farmers in Westlands pumped more
than 210,000 acre-feet of groundwater, which is significantly more than
the USGS estimate of the safe yield of the groundwater basin (135,000
acre-feet). To the extent which farmers have to rely on groundwater is
contrary to sound principals of conjunctive use, which dictate that in
wet or above normal years of precipitation, groundwater use should be
reduced to allow the groundwater table to recover. In addition,
Westlands has acquired and fallowed more than 89,000 acres of land to
help balance the demand for water with the District's available supply.
Westlands has also acquired all of the lands in Broadview Water
District and the water service contracts of Widren Water District,
Centinella Water District, Mercy Springs Water District, and Ora Loma
Water District. Lands in these other districts that were previously
irrigated with Project water have been retired from irrigated
agricultural production. In the San Joaquin Valley land fallowing
results in third party impacts, which disproportionately affect the
poor and minorities.
It is easy for westside farmers, who have suffered the turmoil and
increased costs resulting from unreliable, inadequate water supplies,
to understand the Friant water users' keen interest in resolving a
conflict that has the potential of taking more than a-half-a-million
acre-feet from farmers for fishery restoration. Although Westlands has
not prepared a detailed analysis of potential impacts, it is safe to
conclude that a judicial decision adverse to the Friant water users
would devastate the agricultural economy of the eastside of the San
Joaquin Valley, and Westlands supports the Friant water users' efforts
to minimize through the a settlement potential water supply losses
resulting from a San Joaquin River restoration program.
Need to Avoid Third-Party Impacts
The Settlement Agreement among the NRDC, other environmental
plaintiffs, the United States, and the Friant water users states that
the parties neither intend nor believe that implementation of the
Settlement Agreement will have a material adverse effect on any third
parties. Given the nature of the claims that the settling parties seek
to resolve through the Settlement Agreement any other intent would be
unreasonable. However, in their present form the Settlement Agreement
and the San Joaquin River Restoration Settlement Act could be
interpreted or implemented in ways that could have significant adverse
effects on agencies that were not parties to the litigation or involved
in development of the restoration program. For instance, without close
coordination, the restoration program established by the Settlement
Agreement could frustrate efforts undertaken by other agencies to
restore or enhance the fall run Chinook salmon fishery on tributaries
of the San Joaquin River. In addition, if as contemplated by the
Settlement Agreement the spring run Chinook salmon are reintroduced
into the San Joaquin River, the take prohibition of the Endangered
Species Act could dramatically reduce the water supply or hydroelectric
generating capability of agencies that were neither party to the
litigation nor involved the development of restoration program. To
avoid these unintended consequences Westlands suggests that the San
Joaquin River Restoration Settlement Act be amended to express an
unambiguous congressional intent that third parties not suffer adverse
effects.
I am confident that other witnesses will focus their testimony on
potential effects that could be suffered by the agencies they
represent. Therefore, my testimony will focus on potential impacts on
south-of-Delta long-term contractors that currently receive water from
the Delta Division of the Central Valley Project, including the San
Luis Unit.
Use of Central Valley Project Water for Restoration of the Spring and
Fall Run
The Settlement Agreement establishes a ``Restoration Goal'' of
restoring and maintaining in good condition fish in the main stem of
the San Joaquin River below Friant Dam to the confluence of the Merced
River, including naturally-reproducing and self-sustaining salmon
fisheries. Flow criteria established by the Settlement Agreement limit
for a period of years the quantity of water that can be released from
Friant Dam for the restoration and maintenance of fish below the Dam,
but there is no comparable limitation on the use of other Central
Valley Project water or facilities to accomplish the Restoration Goal.
Although the Settlement Agreement provides that the Secretary of the
Interior shall comply with Endangered Species Act in connection with
his operation of the Friant Division of the Central Valley Project, the
Settlement Agreement limits the quantity of water that can be
involuntarily taken from Friant Division long-term contractors to
implement the Act for the protection of salmon, or other fish, below
Friant Dam. There is no comparable protection for other Central Valley
Project long-term contractors.
Stated succinctly, the Settlement Agreement and the San Joaquin
River Restoration Settlement Act limit the obligation of the Secretary
to operate the Friant Division for the protection of fish under the
Endangered Species Act, but the Secretary's underlying obligation to
operate the Central Valley Project to avoid take and promote recovery
of listed species that will be reintroduced to the main stem of the San
Joaquin River between Friant Dam and the confluence with the Merced
River is unaffected. For this reason it is conceivable that the
Secretary could be required to use water from other Central Valley
Project facilities to accomplish the ``Restoration Goal'' established
by the Settlement Agreement. As an example, if it is determined that
the flow provided by releases from Friant Dam is insufficient to
support out-migrating spring run salmon and the insufficient flow would
cause jeopardy for the species, the Endangered Species Act and the San
Joaquin River Restoration Settlement Act, when read together, would
obligate the Secretary to look to other sources of Central Valley
Project water to provide additional flow. It is conceivable that in
order to provide such additional flow, the Secretary of Commerce though
a biological opinion issued for the operation of the Central Valley
Project could impose as a reasonable and prudent alternative the
release of water from San Luis Reservoir into the Delta-Mendota Canal
for subsequent release into the San Joaquin River.
In recent discussions with the settling parties, they have stated
unequivocally that such a scenario was never envisioned and it not
their intent to impose on the Secretary of the Interior an obligation
to take water from other Central Valley Project long-term contractors
in order to achieve the Settlement Agreement's Restoration Goal.
Therefore, to avoid this potential, unintended effect Westlands
suggests that the San Joaquin River Restoration Settlement Act be
amended to provide that the only Central Valley Project water that the
Secretary is authorized to use to achieve the Restoration Goal is water
released pursuant to the Settlement Agreement from Friant Dam. Such an
amendment would do no violence to the settling parties' expectations
and would protect south-of-Delta Central Valley Project water service
contractors, who have already lost more than 650,000 acre-feet to fish
and wildlife uses, from suffering additional water supply shortages.
Another potential reduction in water supplies of agencies that
receive water from the Delta export facilities of the Central Valley
Project or the State Water Project could result from pumping
limitations imposed to prevent take of the reintroduced spring run
salmon. There are already in place numerous restrictions on pumping at
the Tracy Pumping Plant and the Harvey O. Banks Pumping Plant imposed
to protect or enhance other anadromous and pelagic fish species.
However, if out-migrating spring run salmon reintroduced pursuant to
the Settlement Agreement are in the vicinity of these pumps at times
their operations are not restricted, it is likely that additional
pumping restrictions will be imposed. As a consequence, the water
supplies for agencies that receive water from the Delta export
facilities would be reduced. To avoid this unintended effect, the San
Joaquin River Restoration Settlement Act should be amended to direct
the Secretary of Commerce to exercise his existing authority to
designate as an experimental population pursuant to Article 10(j) of
the Endangered Species Act the reintroduced spring run Chinook salmon.
Such a designation would protect the Central Valley Project and the
State Water Project from water supply losses that otherwise would occur
to prevent the incidental take of the species.
Recirculation or Recapture of Water
Provisions of both the Settlement Agreement and the San Joaquin
River Restoration Settlement Act direct the Secretary to develop and
implement a plan or program of recirculation, recapture, reuse,
exchange or transfer of water released for restoration flows, for the
purpose of reducing or avoiding impacts to water deliveries to the
Friant long-term contractors. It has been reported in the press that
Peter Vorster, Ph.D., a hydrologist for the environmental plaintiffs
has calculated that approximately 100,000 acre-feet of water released
from Friant Dam pursuant to the Settlement Agreement could be
recaptured in the Delta for export back to the Friant Division. If
these reports are accurate, Dr. Vorster's conclusion is unrealistic.
Presently, the capacity of the Tracy Pumping Plant and the
permitted capacity of the Banks Pumping Plant are fully dedicated to
meeting contractual commitments to agencies outside of the Friant
Division. Indeed, because of existing restrictions imposed at these
pumping plants to protect or enhance anadromous and pelagic fish,
except in extremely wet hydrologic conditions, neither the Secretary
nor the California Department of Water Resources can meet water supply
commitments to their respective contractors. If a program to recapture
or recirculate restoration flows released from Friant Dam were to
displace existing uses of the Tracy Pumping Plant or the Banks Pumping
Plant, the water supplies of other agencies would undoubtedly be
reduced and significant conflict would ensue.
I am informed by representatives of the Friant water users that it
is not their intent to displace existing uses of either the Tracy
Pumping Plant or the Banks Pumping Plant. Instead, it is their
expectation to use excess capacity at these facilities when it is
available. To avoid any future conflict concerning this issue Westlands
proposes that the San Joaquin River Restoration Settlement Act be
amended to provide that the Secretary's duty to implement a recapture
or recirculation program shall be subordinate to the Secretary's use of
the Tracy Pumping Plant to make Project water, other than restoration
flows released from Friant Dam, and water acquired through transfers
available to existing south-of-Delta Central Valley Project
contractors. Moreover, because the Agreement of November 24, 1986,
Between the United States of America and the Department of Water
Resources of the State of California for the coordinated operation of
the Central Valley Project and the State Water Project, authorized by
Pub. Law 909-546, provides, inter alia, for the coordinated operations
of the Tracy the Banks Pumping Plant, the Secretary's duty to implement
a recapture or recirculation program should be subordinate to his
performance of that agreement and any agreement to resolve conflicts
arising from the coordinated operations agreement.
Conclusion
Again, I want to express Westlands' support for the Friant water
users' effort to minimize the water supply losses that could result
from an adverse ruling in the judicial proceedings concerning the
Secretary's obligation to release water from Friant Dam to restore and
maintain in good condition fish that exist below the Dam. If the
settling parties are sincere in their belief that implementation of the
Settlement Agreement will not have a material adverse effect on any
third parties, I am confident that we will be able to reach agreement
on amendments to the San Joaquin River Restoration Settlement Act to
ensure avoidance of such effects on south-of-Delta Central Project
long-term contractors and other potentially affected agencies. I would
welcome any questions from members of the Subcommittee.
[GRAPHIC] [TIFF OMITTED] T0100.001
______
Mr. Radanovich. Thank you, Mr. Birmingham. Next is Mr.
Allen Short, General Manager of the Modesto Irrigation
District, and also representing the San Joaquin Tributaries.
Mr. Short, welcome to the Subcommittee.
STATEMENT OF ALLEN SHORT, GENERAL MANAGER, MODESTO IRRIGATION
DISTRICT AND REPRESENTING SAN JOAQUIN TRIBUTARIES ASSOCIATION,
MODESTO, CALIFORNIA
Mr. Short. Thank you, Mr. Chairman, and thank the Committee
for holding this hearing. And I appreciate the opportunity to
come before you.
I would also like to thank the Committee for their
recognition of third-party impacts to those that are on this
panel and those who are not on this panel. That is a critical
component of this agreement.
As the Chairman said, I am Allen Short, the General Manager
of the Modesto Irrigation District. I am also the Coordinator
of the San Joaquin Tributaries Association. That is a group of
irrigation districts on the east side of the Valley, that
consists of Modesto, Turlock, Oakdale, South San Joaquin, and
Merced Irrigation Districts. We each own or operate huge
reservoirs on the east side, containing in storage well over
three million acre-feet. We also irrigate more than 3,000 acres
through, collectively, our area. We also, some of us are moving
into the domestic water supply as a result of the conversion of
ag land to urbanization.
Our focus today is ESA and that third-party impact. I want
you to recognize that that is a concern to all of those that
are on the tributary. Mr. Robbins will speak specifically to
what we are proposing in terms of language to assist in the
legislation.
But I also want to take another issue, which is an issue
that is very important to all of us who have hydro facilities
on those tributaries, of which we all do. In taking the
settling parties at their word that there would be no third-
party impacts, most of us, if not all of us, will be having our
FERC licenses renewed over the next several years.
Two of the agencies have had their license renewed and have
reopened. Modesto and Turlock are slated to have their license
renewed in 2016, 2017, and Merced, 2014. So from that
standpoint, we want to ensure that we get protection measures
contained within ESA and the Federal Power Act to allow this
species to move forward and to be reintroduced into the San
Joaquin.
Let me say as strongly as my friend, Mr. Birmingham, has
said, the San Joaquin Tributaries Association does support the
settlement agreement, provided that the third-party impacts,
ESA-specific and the FERC-issue-specific, are resolved in a
mutual agreeable manner. That there will be no impacts to our
entities.
With that, Mr. Chairman, you like to conduct a tight ship.
I would again like to thank you for the opportunity to come
before you. And I delegate any time I have left, I will market
it to my friend, Mr. Robbins, to take the lead.
Thank you.
[The prepared statement of Mr. Short follows:]
Statement of Allen Short, Coordinator,
San Joaquin Tributaries Association
Good morning Chairman Radanovich and fellow members of the
Subcommittee. My name is Allen Short. I am the General Manager of the
Modesto Irrigation District. I appear today in front of you as the
Coordinator of the San Joaquin Tributaries Association.
The San Joaquin Tributaries Association is comprised of five
irrigation districts located on the eastside of the San Joaquin Valley
which divert and use water from the Merced, Tuolumne and Stanislaus
Rivers. The SJTA's members include the South San Joaquin Irrigation
District and Oakdale Irrigation District, which are senior water right
holders and producers of power on the Stanislaus River; the Modesto
Irrigation District and Turlock Irrigation District, which are senior
water right holders and producers of power on the Tuolumne River; and
the Merced Irrigation District, which is a senior water right holder
and producer of power on the Merced River. Collectively, the SJTA's
members comprise over 300,000 acres of agriculture, annually produce
over one-thousand megawatts of electricity, annually divert over a
million acre feet of water and have large storage facilities that store
millions of acre feet of water.
The SJTA is a supporter of the settlement. We believe it is better
to look for solutions, rather than relying on courts to issue
decisions.
Our support for the settlement is premised, however, on the
provisions of Paragraph 7 of the settlement agreement, which provides
in part:
``The parties neither intend nor believe that the
implementation of this settlement will have a material adverse
effect on any third parties or other streams or rivers
tributary to the San Joaquin River.''
In order to make that intention come to fruition in a clear and
unambiguous fashion we have offered language for legislation. Mr. Ken
Robbins will address the issues related to the reintroduction of Spring
Run Chinook Salmon. My testimony will focus on ensuring that adverse
impacts will not occur to the SJTA's members as a result of the
settlement.
In the near future, Merced Irrigation District will begin a Federal
Energy Regulatory Commission re-licensing process for its Merced River
Project, whose current license expires in 2014. Shortly thereafter,
Modesto Irrigation District and Turlock Irrigation District will begin
their FERC re-licensing process for the Don Pedro Project, the present
license for which expires in 2016. Oakdale Irrigation District and
South San Joaquin Irrigation District have finished their re-licensing
process, but their licenses have a re-opener provision for threatened
or endangered species.
In the Federal Energy Regulatory Commission's re-licensing process,
the National Marine Fisheries Service has mandatory conditioning
authority. If Spring Run Chinook Salmon are re-introduced into the
upper San Joaquin River in 2012 then the National Marine Fisheries
Service will have the authority to condition the licenses of the
Merced, Modesto and Turlock Irrigation Districts with conditions for
the protection of Spring Run Salmon as part of the re-licensing
process. Moreover, the licenses already issued to the Oakdale and South
San Joaquin Irrigation Districts could be re-opened to consider
additional conditions for the purpose of protecting or enhancing the
re-introduced Spring Run Chinook Salmon.
It is imperative to the SJTA that the ESA protections afforded the
Districts at the beginning of this settlement process, namely those
under Sections 10(j) and 4(d), are not changed in the middle of the
implementation process. We do not want to have one set of conditions
applied now, only to be ratcheted up with additional conditions in the
FERC re-licensing process.
We need a clear Congressional directive to the National Marine
Fisheries Service, the Federal Energy Regulatory Commission and non-
governmental organizations that Spring Run Chinook Salmon will not be
an issue in the FERC re-licensing process. We only request that this
condition be in place for the term of the settlement agreement. We
accept the likelihood that our licenses will have a re-opener condition
for Spring Run Chinook Salmon in 2026. We believe our proposed
legislative language is fair and reasonable. We believe it provides the
SJTA's members with the same level and duration of assurances as given
to the settling parties. We believe the language we have offered
accurately, concisely, and succinctly sets forth what the parties
intended in their settlement agreement and is necessary for our
continued support of the agreement.
Congressman Radanovich, the SJTA appreciates your leadership and
guidance on this historic settlement and legislation. Your continued
insistence and unwavering support of the key concept of no redirected
impacts has made it possible for us to support this settlement and yet
protect the valuable resources and service we provide to our landowners
and customers in the San Joaquin River Basin.
This concludes my testimony. Mr. Chairman, thank you for the
invitation to testify before this Subcommittee today. I will be happy
to answer any questions members of the subcommittee may have.
______
[The response to questions submitted for the record by Mr.
Short and Mr. Robbins follows:]
San Joaquin Tributary Association
P.O. Box 4060
Modesto, CA 95352
(209) 526-7405
October 20, 2006
Honorable Richard Pombo, Chairman
Committee on Resources
U.S. House of Representatives
Washington, DC 20515
RE: Response to follow up questions from The Honorable Devin Nunes
Subcommittee on Water and Power hearing October 5, 2006--San Joaquin
River Settlement
Dear Mr. Pombo:
You forwarded a set of follow up questions propounded by Mr. Nunes
as set forth above. We understand these questions to have been
submitted to all witnesses before the subcommittee. Some of the
questions can only be answered by other witnesses.
The following answers respond on behalf of Mr. Allen Short, General
Manager of the Modesto Irrigation District and Coordinator of the San
Joaquin Tributary Association (SJTA). SJTA is an association of
California Irrigation Districts (ID) with water rights, storage, power,
and irrigation facilities on the Stanislaus, Tuolumne and Merced
Rivers, tributary to the lower San Joaquin River. Its members are:
South San Joaquin ID, Oakdale ID, Modesto JD, Turlock ID, and Merced
ID. Reference to Mr. Short's original testimony is made for further
details.
These answers are jointly provided by Kenneth Robbins, General
Counsel to Merced ID and Special Counsel to the SJTA, to whose original
testimony reference is also made.
RESPONSE
1. Based on the terms of the Settlement, has an analysis been
completed on the potential water losses on a district-by-district level
and wateruser-by-wateruser level? If so, can you provide a copy of that
analysis to the Committee?
Answer: We understand that this question is directed towards the
Friant Water Users Authority. Regarding the SJTA agencies, the
hydrographs that might be developed by regulatory agencies for the
support of Spring Run Salmon on the tributary rivers are unknown and an
analysis of potential water losses to the SJTA members has not been
performed. However, because of the need for ``cold water'' habitat
below the main dams of the districts and the water requests of the
Anadromous Fish Restoration Plan (AFRP), the SJTA members expect a
demand for large scale additional water requirements potentially
doubling current requirements.
In addition, significant concerns were raised about potential
monetary costs to screen diversions as needed to prevent the loss of a
threatened species and operational changes to storage which would have
impacted electric generation at peak demand.
It should be noted that if the current agreement regarding
implementing legislation actually results in the adoption of the
legislation these impacts will not occur. The Spring Run Salmon will be
reintroduced as an experimental population under section 10(j) and 4(d)
of the Endangered Species Act.
2. According to the California Department of Fish and Game, Fish
Bulletin Number 17, The Sacramento-San Joaquin Salmon Fishery of
California (page 31), by 1928 there were ``very few'' salmon remaining
in the San Joaquin River above the Merced River and that the historical
salmon fishery that once existed had been severely depleted.
Considering this is 15 years before the construction of Friant Dam, how
would the Settlement change historical facts?
Answer: This question should be answered by the California
Department of Fish and Game and the National Marine Fisheries Service.
3. What is reasonable expectation of success relating to
reintroduction of spring-run Chinook salmon into the San Joaquin River?
How many naturally reproducing spring-run Chinook salmon can we expect
to inhabit the San Joaquin River as a result of the proposed
restoration program?
Answer: This question should be answered by the California
Department of Fish and Game and the National Marine Fisheries Service.
4. Considering that restoration of a salmon run will require
consistent cold water flows, is there a plan to develop temperature
controls to eliminate impacts on downstream tributary salmon runs? If
so, what are the details of the plan?
Answer: This question should be answered by the Settling Parties.
Mr. Short and Mr. Robbins have received assurance that in years when
flow levels create temperature issues of concern to out-migrating Fall
Run Salmon on the tributary rivers, the Upper San Joaquin hydrograph
will be adapted by moving the spring flows to an earlier date. The
process and parameters of that adaptation are the subject of
negotiations between the Bureau of Reclamation, the Settling Parties
and the third parties which are intended to be memorialized by a
memorandum of understanding (MOU). That is why the MOU is so important
to the Third Parties.
5. Would the funds authorized by the proposed settlement
legislation produce better results on streams other than the San
Joaquin River--in terms of increasing the population of spring-run
Chinook salmon?
Answer: This question should be answered by the California
Department of Fish and Game and the National Marine Fisheries Service.
6. Please identify how the terms of the Settlement will provide
water quality improvements in the Delta?
Answer: This question should be answered by Settling Parties. From
the analysis by the third parties it appears that there will only be
marginal improvement in water quality at Vernalis and in the South
Delta. The additional water contribution would only very rarely provide
significant improvements, usually in March. No water quality standards
adopted by the State Water Resources Control Board (SWRCB) will be met
with flows from the restoration, though small amounts of water
currently used to meet standards from New Melones may be conserved.
7. Is there a plan to address the groundwater overdraft that will
occur as a result of reduced water deliveries to the Friant Division?
If so, what are the details of the plan?
Answer: This should be answered by the Friant Water Users
Authority.
8. What are the estimated costs to implement the restoration plan
proposed in the Settlement? Please provide details on how you developed
the estimate?
Answer: Because of the referral of Reach 4B to a study and
implementation at a later date in the legislative settlement, answering
witnesses are not aware of the total current known cost, though savings
from original estimates may be achieved from such referral if the
Mariposa by-pass is ultimately used.
9. The proposed legislation submitted to Congress has a provision
of ``no private right of action.'' What prevents parties from filing
suit for more water after 2026? What prevents a third party from filing
suit in reference to NEPA compliance, or other applicable laws, as
feasibility studies are conducted on various aspects of the Settlement?
Answer: Answering witnesses are unaware of constraints after 2026
to actions which might be brought under the issues resolved in the
Settlement Agreement. Of course, all waters of California may be
subject to actions before the SWRCB on a number of issues, including
water quality. Answering parties are unaware of any bar to third party
suits on matters which are not the subject of the settlement, nor is
there any bar to claims arising from the regulatory requirements such
as NEPA or CEQA.
Respectfully submitted,
Allen Short
General Manager, Modesto Irrigation District
Coordinator, San Joaquin Tributary Association
Kenneth M. Robbins
General Counsel, Merced Irrigation District
Special Counsel, San Joaquin Tributary Association
______
Mr. Radanovich. Good man. Thank you, Mr. Short.
The Committee would like to welcome Mr. Ken Robbins, who is
the General Counsel of the Merced Irrigation District. Ken,
welcome to the Subcommittee.
STATEMENT OF KEN ROBBINS, GENERAL COUNSEL,
MERCED IRRIGATION DISTRICT, MERCED, CALIFORNIA
Mr. Robbins. Thank you, Mr. Chairman. Again, I am the
General Counsel for Merced Irrigation District that operates
the Exchequer Project on the Merced River, which is the first
river on the San Joaquin system that the water coming down the
San Joaquin will arrive at. And that is important, because one
of the concerns we have, one of the many concerns we have about
this project, notwithstanding the fact that we are in support
of the agreement because we believe what the parties have said
in their settlement and what they have said before you today,
that they intend no third-party impacts.
Nevertheless, we managed our systems on the Merced, the
Tuolumne, and the Stanislaus for the protection and propagation
of Fall Run Salmon. One of the things we do besides provide
irrigation water and power and domestic water, et cetera, is
that we do maintain water in the river, and we do ensure that
that water occurs whether or not the rainfall is going to
contribute to that. We will often use storage water to make
sure those rivers stay in tact.
But those systems are managed for Fall Run. Now, the
problem with the water arriving from the San Joaquin under the
settlement is that without some sort of adaptation, there might
be years in which the water arriving at the confluence of the
Merced will simply be too hot for the survival of Fall Run
Salmon, who will be outmigrating from the system in the
springtime.
Now, the parties have been talking to us, and we have
gotten assurances from them that adaptations will be made. But
obviously, it makes us very nervous, and we would want to be
able to ensure that we had input to the decisions that are
being made about how the adaptations for the settlement water
would be made in order to make sure that the Fall Run Salmon
that currently exist on the San Joaquin system is not harmed.
The second major concern we have, of course, is that Spring
Run Salmon is, in fact, a listed species. It is a threatened
species. It will have to actually be seized, or part of the
population will have to be captured or taken from a hatchery in
the northern part of California, most likely, to be deposited
in the San Joaquin. And when that happens, of course, every
single project, every water project, every diversion, every
landowner, every system that interfaces with the San Joaquin
faces the potential impacts of the Endangered Species
regulatory activities on us.
And so what we have suggested are a couple of tools be used
that already exist in the Endangered Species Act. We are not
asking for any modification of the Act. We are simply asking
for the tools that are already in the Act be implemented.
One of those tools is referred to as Section 10[j]. It is
for an experiment. And you have heard it classified this
morning by all of the parties as an experiment. We will be
putting water into the river, we are going to be putting fish
into the river; we are going to be testing, we are going to be
trying to find out exactly what those fish returns are going to
look like, and whether or not they can be sustained.
During that time, this fish can be classified by the
National Marine Fisheries Service under 10[j] as an
experimental population. We expect, during that process, that
they will find this population in the part of the Sacramento
where they take these fish to be essentially non-essential to
the survival of the species, or they wouldn't be moving it to
the San Joaquin, quite frankly, where the risks to survival are
going to be much higher for that fish.
So once they have found this to be an experimental
population, and that this is a non-essential part of the
population, we gain a whole lot of things.
First, under Section 4[d] of the Endangered Species Act, we
are eligible for take limitations. And those take limitations
or exceptions can be made all through the San Joaquin system;
and indeed, with proper crafting, might be made neutral in the
Delta, such that additional concerns arising in the Delta might
not be impacted. As long as that species remains threatened, we
are entitled to the 4[d] protection.
What 10[j] does is to say something else. It says that in
so long as that species is an experimental species, even if it
descends to an endangered status, you may still be eligible for
the take exceptions under 4[d], one. Two, no critical habitat
gets designated. What that means for landowners and for all of
us should be obvious. The interferences with individual
property rights and the accommodations that we must make for
critical habitat would be off the table.
And finally, our Section 7 consultations for the FERC
relicensing would be considering Spring Run as simply a species
of concern, rather than as an endangered, threatened species.
So we are hopeful that language we are working out now can
be put into play, so that the Secretary will exercise those
discretions prior to the reintroduction of Spring Run and
resolve this issue. Thank you very much.
[The prepared statement of Mr. Robbins follows:]
Statement of Kenneth M. Robbins, General Counsel,
Merced Irrigation District
Good morning Chairman Radanovich and members of the Subcommittee.
My name is Ken Robbins and I am General Counsel for Merced Irrigation
District. I am pleased to have this opportunity to testify regarding
the proposed legislation that would implement the settlement agreement
reached by the parties to the Friant litigation.
Merced Irrigation District is part of the San Joaquin Tributaries
Association (SJTA), a group of five associated Irrigation Districts
with water storage and hydroelectric facilities located on the three
principal tributaries to the San Joaquin River (SJR). Mr. Short has
already testified on behalf of the SJTA, so I shall not revisit those
points.
I am here today to testify about the impacts the proposed
settlement will have on Fall Run Chinook Salmon and the operations of
the District's hydroelectric and water supply facilities.
Let me preface my remarks by reiterating what Mr. Short said
earlier. The SJTA, including the Merced Irrigation District, is
supportive of the goals of the proposed settlement. The District is
confident the proposed settlement can be implemented in a manner that
ensures both the restoration of the SJR and the mitigation of impacts
from such an undertaking on third parties. The District believes the
settling parties when they say they do not intend to impose impacts on
third parties. My testimony will offer suggestions and a proposed
legislative approach to ensure the settlement goal of no third-party
impacts is achieved.
The five eastside irrigation districts of the SJTA have expended
substantial water and money to restore the Fall Run Chinook Salmon
fishery on the Merced, Tuolumne and Stanislaus Rivers. These efforts
include active participation in, and funding for the San Joaquin River
Agreement, the Vernalis Adaptive Management Plan (VAMP), Federal Energy
Regulatory Commission (FERC) proceedings, on-going district funded
studies and monitoring and restoration activities, and the Merced River
Fish Hatchery.
The SJRA/VAMP
In May of 1995, the State Water Resources Control Board, as part of
the river flow objectives in the 1995 Bay-Delta Plan, set minimum
monthly average flow rates on the San Joaquin River at Vernalis. The
Sacramento and San Joaquin River flow objectives were included to
provide attraction and transport flows and suitable habitat for various
life stages of aquatic organisms, including Delta smelt and Chinook
salmon.
The five Eastside irrigation districts, the City and County of San
Francisco, the San Joaquin River Exchange Contractors and the Friant
Water Users Authority settled with the United States Bureau of
Reclamation and the California Department of Water Resources resolving
a dispute on how the responsibility for implementing the flow objective
was to be met. This consensus resulted in the San Joaquin River
Agreement, and the ongoing experiment commonly known as VAMP.
Under the VAMP, the five Eastside irrigation districts and the San
Joaquin River Exchange Contractors agree to provide a supply of up
to110,000 acre-feet for an April--May pulse flow. In addition, the
parties expend $750,000 a year to conduct the VAMP experiment which is
designed to gather better scientific information regarding fisheries on
the lower San Joaquin River.
Federal Energy Regulatory Commission
Flows for facilities operated by the Modesto Irrigation District
and Turlock Irrigation District on the Tuolumne River are governed by
Article 37 of the Federal Power License for the Don Pedro Project (FERC
Project No. 2299). The minimum flows are designated by 10 different
water-year types ranging from ``Critical & Below'' to ``Median Wet/
Maximum.'' Each year is broken into three time periods plus two pulse
periods. The minimum annual flows ranged from 94,000 acre-feet to
300,923 acre-feet, mainly for the benefit of Fall Run Chinook Salmon.
Merced Irrigation District operates the Merced River Hydroelectric
Project (FERC No. 2179), a 103.5-megawatt project consisting of the
Exchequer and McSwain developments. Under its FERC license, Merced
Irrigation District provides flow based on two year types, as defined
by its license. These flows, when combined with the flows required
pursuant its Davis-Grunsky Agreement with the State of California,
provide annual flows totaling about 100,000 acre feet per year. That
amount of water is doubled across the salmon spawning grounds as Merced
releases even more water to downstream water right holders. In
addition, Merced Irrigation District provides 12,500 acre-feet of water
in October, the equivalent of approximately 200 cubic feet per second,
pursuant to a memorandum of understanding with the California
Department of Fish and Game. These flows are maintained predominantly
for the benefit of Fall Run Chinook Salmon.
District Operations
Currently South San Joaquin Irrigation District and Oakdale
Irrigation District on the Stanislaus River spend approximately
$500,000 annually to operate rotary screw traps and the Vika weir, and
to participate in gravel restoration, habitat restoration and river
mapping.
Modesto Irrigation District and Turlock Irrigation District on the
Tuolumne River collectively have spent about $500,000 a year for the
last 10 years on their Tuolumne fishery program. Another $1,000,000 has
been spent on restoration work over that same time period. The $500,000
annual expenditure is expected to increase in the years ahead.
Merced Irrigation District invests over $475,000 annually to
operate its Fall Run Salmon enhancement program in conjunction with the
California Department of Fish and Game. The Merced Irrigation District
and the California Department of Fish & Game have entered into a ten-
year agreement for studies and projects to address habitat and salmon
restoration programs on the Merced River. This program is known as
Merced River Adaptive Management Program or ``MRAMP.'' The district has
committed matching funds of $5 million over a ten-year period for this
program.
Merced River Fish Hatchery
Merced Irrigation District and the California Department of Fish
and Game, in collaboration with the State Water Contractors, have
agreed to cooperatively fund the future operation and management of the
Merced River Fish Hatchery. Annual operating costs for the Merced River
Fish Hatchery are over $400,000. These costs are scheduled to be borne
by the Merced Irrigation District, the Four Pumps Agreement Group, and
the San Joaquin Tributaries Association. Fall Run Chinook Salmon
production from this facility is targeted at about 960,000 smolts per
year. The hatchery production is devoted to maintenance of the Merced
River Fall Run salmon, the VAMP program delta studies, and other
experimental programs conducted on other California Rivers in the San
Joaquin Valley by the California Department of Fish and Game and their
partner agencies.
The status of Fall Run Chinook Salmon on the San Joaquin River and
its tributaries is one of improvement, but still of concern. At the end
of an unprecedented six year drought, from 1987-1992, salmon returning
to the San Joaquin River basin numbered about 1,373, including hatchery
fish. Over the last ten years Fall Run Chinook Salmon production in the
San Joaquin River basin has ranged from a low of 14,023 to a high of
79,679. Recent trends have once again been troubling.
In 1998, Fall Run Chinook Salmon became a candidate species for
listing as threatened under the Endangered Species Act. In recent
testimony to the State Water Resources Control Board, the California
Department of Fish and Game expressed concern regarding the recovery of
Fall Run Chinook Salmon in the San Joaquin River basin. It stated:
``Fall-run salmon populations in the SJR Basin are not making
progress toward meeting the narrative doubling goal.''
So we are not out of the woods yet in terms of assuring the
recovery of Fall Run Chinook Salmon in the San Joaquin River basin. It
is still a species of concern.
Third-Party Impacts of Settlement
The problem we identified early to the settling parties was the
impact of the released water from Friant on water temperatures at the
confluence of the Merced and Tuolumne Rivers. If the temperature of
water flowing down from Friant is too hot it will literally cook the
little Fall Run Chinook Salmon smolts out-migrating from the Merced and
Tuolumne Rivers. In response to our concerns the settling parties have
agreed to advance the pulse flows to an earlier date depending upon air
and water temperatures. We do not know if this will be sufficient nor
do we yet have a voice in how this will be done.
Plaintiffs' expert focused his temperature criteria solely on
Spring Run Chinook Salmon. Dr. Peter Moyle testified that temperatures
as high as 74 degrees Fahrenheit would protect Spring Run Chinook
Salmon during the Spring migration period. The California Department of
Fish and Game has recommended optimal temperatures for Fall Run Chinook
Salmon of 55 degrees Fahrenheit and set lethal temperatures at 62
degrees Fahrenheit during this time period. If Plaintiff's expert is
incorrect, or the California Department of Fish and Game is correct,
then Fall Run Chinook Salmon smolts leaving the Merced and Tuolumne
Rivers may perish.
Of course, another potential consequence of such a scheme would be
to have Merced Irrigation District, or others, release massive amounts
of water over what is currently required to maintain, if possible, cold
water temperatures. This could have a major impact on the Merced
Irrigation District and its farms and cities in terms of power
production, storage and water supply reliability. It would have a
lesser impact on the Tuolumne River system, but there would be a
similar demand for additional water.
Merced Irrigation District's position is that an experimental fish
population should not be reintroduced to the detriment of an existing
species of concern, Fall Run Chinook Salmon. These impacts must
therefore be mitigated.
This brings me to the second major point of my presentation, the
reintroduction of Spring Run Salmon and its impact on Merced Irrigation
District's hydroelectric and water supply facilities. The Merced River
Project and other SJTA projects are focused on Fall Run recovery, which
involves concentrated water requirements from the fall through spring.
Fall Run generally return from the ocean from late October thru
December. They spawn and their progeny migrate out of the system in the
spring. Because of winter rain runoff and colder winter temperatures,
satisfactory salmon habitat is much easier to maintain in the
foothills. Spring Run, on the other hand, require summer fresh water
habitat as most of the population spend an entire year in the system
before migrating to the ocean. This means cold water temperatures must
be maintained in the foothills throughout weeks of 100+ degree days.
The Spring Run no longer has access to the high mountain regions of the
San Joaquin Sierra Mountains as they do in some areas of Sacramento
Sierras.
Merced Irrigation District does not agree with the settling parties
that conditions are conducive now or will be in the future on the upper
San Joaquin River for the reintroduction of Spring Run Salmon. We have
only to look to the mainstem Sacramento River from Redding to Red
Bluff. The overall population trend for Spring Run Chinook Salmon on
the Sacramento River has been negative. Average abundance on the
mainstem Sacramento River has gone from a high of 12,107 for the period
1980-1990 to a low of 609 for the period 1991-2001. Spawning
populations are so low the California Department of Fish and Game
biologists believe Spring Run have nearly disappeared entirely from the
mainstem Sacramento River. This is not to suggest their condition on
the Sacramento tributaries. However, it is important to recall that the
settlement calls for Spring Run restoration on the mainstem of the SJR,
not its high mountain tributaries.
The Sacramento River has 4.5 million acre-feet of storage at Lake
Shasta compared to Friant's 500,000 acre-feet of storage on the SJR.
The flows on the Sacramento River can be 10 times the flows on the
upper SJR. The Sacramento River has 100 miles of deep
pools, cold water and shaded riverine aquatic habitat. The San Joaquin
River has neither--and will have nothing even remotely comparable to
the Sacramento for decades, if ever.
In fact, as Plaintiff's expert, Dr. Moyle, pointed out, in many
years when it is dry it will be necessary to trap and truck the fish
because flows will not be sufficient to sustain them. In critically dry
years there may be no water at all.
I do not say this as a pessimist. There are reputable biologists
who suggest the experiment may work. But make no mistake, this is an
experiment. The third parties, particularly the SJTA districts
operating water storage projects on the SJR tributaries below the
proposed Spring Run restoration area, do not want to get left holding
the bag for a potentially failed experiment, if the experiment fails in
the target area and the National Marine Fisheries Service (NMFS)
determines the Spring Run cannot be restored as set out in the
settlement.
The Need to Legislate Third-Party Protections
To avoid these potential impacts, the third parties have offered
language to amend the proposed legislation accompanying the settlement
agreement to protect the Eastside districts, as well as the San Joaquin
River Exchange Contractors, other diverters on the mainstem San Joaquin
River and the USBR and DWR at the Delta pumping facilities. This
language leads to the making of certain findings under section 10(j) of
the Endangered Species Act (ESA) prior to the re-introduction of the
threatened Spring Run salmon. It also protects the Merced, Turlock and
Modesto Irrigation Districts from having to mitigate impacts to the
experimental population of Spring Run prior to 2026 when their
hydroelectric projects are relicensed by FERC in 2014 and 2016.
ESA Section 10(j)
Section 10(j) of the ESA authorizes the Secretaries of Commerce or
the Interior to release ``experimental populations'' of threatened or
endangered species outside the current range of the species in order to
further the conservation of the species. 16 U.S.C. Sec. 1539(j). At the
present time, NMFS has not adopted any regulations concerning
experimental populations, although it is permitted to do so under the
ESA. The U.S. Fish and Wildlife Service (USFWS) has, however, adopted
regulations under Section 10(j).
``Experimental population'' means a designated population,
including subsequent off-spring, which can be introduced into an area
where it is ``wholly separate geographically from nonexperimental
populations of the same species.'' 16 U.S.C. Sec. 1539(j)(1); 50 C.F.R.
Sec. 17.80(a). When a population is designated ``experimental,'' it is
treated as if it were listed as a threatened species, rather than an
endangered one. 16 U.S.C. Sec. 1539(j)(2); 50 C.F.R. Sec. 17.82. A
``nonessential experimental population'' means an experimental
population whose loss would not appreciably reduce the likelihood of
the species' survival in the wild. 50 C.F.R. sec. 17.80(b). If an
experimental population is deemed nonessential, no critical habitat
designation is made for the population. 16 U.S.C. Sec. 1539(j)(2); 50
C.F.R. Sec. 17.81(f). In addition, for purposes of Section 7
consultations, nonessential experimental populations are treated as
species proposed to be listed under Section 4 of the ESA, rather than
threatened or endangered. 16 U.S.C. Sec. 1539(j)(2)(C)(I).
The SJTA believes that in order to protect third-party interests
from unintended impacts of the settlement, it is both reasonable and
essential for Congress either to make the required findings under
Section 10(j), or at a minimum to predicate the reintroduction of
Spring Run in the SJR on the Secretary of Commerce's making the
necessary findings. The required findings include:
1. that the San Joaquin River spring-run Chinook salmon is wholly
separate from any other population of the species, and is thus an
``experimental'' population;
2. that the loss of the experimental population would not
appreciably reduce the likelihood of the species' survival in the wild,
and the population is therefore ``nonessential'';
3. that the reintroduction of spring-run Chinook salmon in the San
Joaquin River will further the conservation of the species;
4. that ``take'' of San Joaquin River spring-run Chinook salmon
that is accidental or incidental to an otherwise legal activity, such
as recreation (e.g., fishing, boating, wading, trapping, or swimming),
forestry, agriculture, operation of dams and reservoirs for irrigation,
hydroelectric power, municipal and industrial water supply, and other
uses, and other activities that is in accordance with federal, state
and local laws and regulations, is permitted; and
5. that the reintroduction San Joaquin spring-run Chinook salmon
nonessential experimental population is within the historic range of
the species and shall include the San Joaquin River watershed,
including its tributaries, and that all spring-run Chinook salmon found
within these boundaries will be considered nonessential experimental
animals.
With regard to the ``wholly separate'' criterion, the
reintroduction of Spring Run to the SJR should qualify as no other
populations of Spring Run exist on the SJR or its tributaries. Indeed,
to reintroduce them individuals or eggs of Spring Run on the Sacramento
River will have to be transported to the SJR.
With respect to the required finding that the experimental
population's loss would not appreciably reduce the species' likelihood
of survival, it would be difficult to understand how the Secretary
could find that the population to be reintroduced is ``essential to the
continued existence of the species'' and still remove it from a much
more friendly habitat--particularly in light of its threatened status
rather than endangered. One would reasonably conclude that the fish
would not be taken from their original habitat for such an experiment
if they were in fact ``essential.''
In making the findings, Congress would also determine that current
lawful operations in the SJR watershed--including tributary water
supply and hydroelectric operations on which the SJTA districts are
critically dependent--would not be subject to ``take'' under the ESA
for the re-introduction of this non-essential fish population pursuant
to section 4(d).
This protects all SJR and tributary water operations in three ways.
First, if the experimental reintroduction of Spring Run Chinook Salmon
cannot be sustained based upon the actions of the settling parties, the
Eastside Districts will not be required to release additional water,
change operations or commit resources to make up the shortfall. Second,
if the experimental reintroduction is successful, such success will
demonstrate that the current, lawful operations of the five Eastside
districts have no detrimental affect on the reintroduced Spring Run
Chinook Salmon therefore do not need to be changed. Third, the
designation of the reintroduced Spring Run Chinook Salmon as a
nonessential experimental population protects the water users while the
experiment is in effect and allows an opportunity for the third
parties, the State of California, the settling parties and the federal
government to develop a longer term Habitat Conservation Plan.
FERC License Protections
Finally, the Merced Irrigation District and the other Eastside
districts need the same level of protection as is afforded to the U.S.
Bureau of Reclamation under the terms of the settlement. Under the
settlement there is no re-opener for twenty years, until 2026, for the
release of additional water from Friant Dam. The Third Parties want
this same protection given to them for their FERC re-licensing. Merced
Irrigation District's current FERC license expires in 2014, while
Modesto Irrigation District and Turlock Irrigation District will seek
to re-license their Don Pedro Project in 2016. These Districts do not
want the National Marine Fisheries Service, which otherwise has
mandatory conditioning authority under section 18 of the Federal Power
Act and section 7 of the ESA, to condition their licenses with terms
and conditions related to the reintroduced, experimental, non-essential
fish population. The Districts want this protection until 2026. The
Districts are agreeable to have a re-opener clause in their new FERC
licenses to specifically address the population's status at that time,
but not earlier.
This concludes my testimony. Mr. Chairman, thank you for the
invitation to testify before this Sub-committee today. I will be happy
to answer any questions members of the sub-committee may have.
______
[NOTE: The response to questions submitted for the record
by Mr. Robbins and Mr. Short can be found on page 77.]
Mr. Radanovich. Thank you, Mr. Robbins. Next is Mr. Steve
Chedester from the San Joaquin River Exchange Contractors
Authority.
Steve, welcome to the Subcommittee. You may begin.
STATEMENT OF STEVE CHEDESTER, EXECUTIVE DIRECTOR, SAN JOAQUIN
RIVER EXCHANGE CONTRACTORS WATER AUTHORITY, LOS BANOS,
CALIFORNIA
Mr. Chedester. Thank you, Chairman and Members of the
Subcommittee. As mentioned earlier, my name is Steve Chedester.
I am the Executive Director of the San Joaquin River Exchange
Contractors Water Authority. And we are, of course, one of the
third parties, and I do want to thank you, especially Chairman,
for allowing us to have this hearing so we can vet these third-
party issues straight out.
We have four main issues I just want to start talking about
on this. One of them is water rights protection, ESA
protection, adequate funding for the implementation of this,
and adequate representation on an implementation committee.
You have heard about this earlier today almost on all of
these. But one of them that wasn't talked about much is water
rights protection. The exchange contractors, the Water
Authority represents four districts, four districts that
comprise 240,000 acres. They hold senior water rights on the
San Joaquin River mainstem, and by nature of the contracts that
we signed with the Federal government and a purchase contract
that actually allowed the building of Friant Dam.
Our rights are still there. We still have them. We want to
make sure that anything that happens in this legislation, it
has to be clear and ambiguous language that our water rights
and our contracts are protected and respected. That is not a
movable subject.
As all of the panelists earlier have said, ESA protection,
we fully support having ESA protection. Number one, mainly
because we are right along the San Joaquin River. We are in
Reach 2, 3, 4, and 5. So 80 percent of the implementation that
is going to occur through this settlement is going to occur in
our service area.
We support the 10[j] designation that was discussed
earlier, and think that it is critical to have that to be able
to go forward with this settlement.
Our biggest point is, is there going to be adequate funding
for the implementation of this project? And more importantly,
is there going to be adequate funding for the mitigation that
is going to be required? We just want to be very direct with
the Committee. Our growers are going to be impacted. It is not
if or maybe; we are. So now it is a matter of how are you going
to mitigate it.
We want to make sure that the mitigations are captured, the
process to address those through a feasibility study, a phasing
through feasibility, NEPA, SJRECWA, and making sure that all of
that is taken care of ahead of time, before flows or fish are
introduced.
We don't want to be sitting here in 20 more years and have
half of a project built, and have it fall upon our growers, who
have been impacted because you haven't completed the project.
We want to make sure there is a proper phasing to make sure
that it can be done, funding is identified, and it is
completed. With that, that alleviates a lot of our concerns,
and that is critical for our support.
And then the adequate representation on the implementation
committee. There was talk about this Technical Advisory
Committee. Whether it is that or another one, it needs to be a
committee that we have equal say on how this gets implemented.
Again, our area is going to be the most impacted by this. We
have to have a vehicle by which our concerns are more than just
heard; we have to have reasonable consideration that they are
going to be acted upon so that it gets done properly.
One of the biggest issues that is going to happen as far as
implemented is this 4B. It has been mentioned a couple times.
Let us just back up.
In my testimony you have attached are some maps that show
what the river looks like today, and what it looks like down
through Reach 4B. 4B hasn't had any water in it, and I mean
zero flows, from the mainstem of the San Joaquin since 1969.
Not in the 1997 flood did it have any flows, not last year or
this year. There is an existing flood bypass system that is
there. It passes flows.
We need to make sure that if you are going to try to
consider even using the old stem, Reach 4B, that it needs to be
done in phases. Take a look at what is going to happen if you
want to run the prescribed, up to 475 cfs. That needs to be
looked at, studied, NEPA/SJRECWA, and then mitigate the impacts
that are going to occur from just the 475. Then go back and
look at what you are going to do in making your decisions on
the broader higher flows of up to 4,000 cfs.
If we can get assurances that those kinds of processes are
in place, funding is available, we would be very supportive of
this legislation and back it. We do support, though, I want to
say, the settlement that has been proposed, and we think it is
a good way to go, as long as and it is contingent upon these
issues adequately being addressed.
I would be happy to answer any questions.
[The prepared statement of Mr. Chedester follows:]
Statement of Steve Chedester, Executive Director,
San Joaquin River Exchange Contractors Water Authority
Good morning, Chairman Radanovich and members of the Subcommittee.
My name is Steve Chedester and I am the Executive Director of the San
Joaquin River Exchange Contractors Water Authority. We are commonly
referred to as the ``Exchange Contractors.'' It is my honor today to
address you on a matter of crucial importance to the Exchange
Contractors.
You have before you legislation that will implement a Settlement
Agreement that has been entered into among parties to the litigation
instigated by the Natural Resources Defense Council seeking to restore
flows for fisheries to the upper San Joaquin River. The Exchange
Contractors are not a party to this Settlement Agreement. The Exchange
Contractors were nominally represented in the litigation by virtue of
our member agencies' membership in the San Luis & Delta-Mendota Water
Authority (``Authority''), a water user group that receives water from
the Bureau of Reclamation and which intervened in the subject
litigation. The Authority did not play an active role in the litigation
or the settlement, as there was never an opportunity for its interests
to be fully aired. However, the Exchange Contractors intend to submit
an amicus brief to the District Court raising its concerns with the
proposed Settlement. I will provide copies of that brief to the Sub-
committee once it is filed.
As you know, the proposed Settlement will obligate the Bureau of
Reclamation to release water from Friant Dam in order to protect
downstream fisheries. The bulk of this water will come from a reduction
of water supplies to the members of the Friant Water Users Authority.
These irrigation districts receive water from the Bureau of Reclamation
through their contracts entitling them to water from the Central Valley
Project. According to the terms of the Settlement Agreement, any
additional water will only be provided from willing sellers. The
Settlement Agreement also states that there will be no ``material
adverse effects'' on other water users. It is to this issue that we
have serious concerns.
The Exchange Contractors is a joint powers authority comprised of
four water entities that irrigate 240,000 acres of prime agricultural
land in the San Joaquin Valley. Our water rights date back to the
1880's, when these water rights were first established by Henry Miller
and Charles Lux. The members of the Exchange Contractors are the
Central California Irrigation District, Columbia Canal Company,
Firebaugh Canal Water District and San Luis Canal Company.
Farmers in our area grow 38 different varieties of permanent and
annual crops. There are over 1500 farmers within the combined districts
and we support $400 million of economic output at the farm gate which
translates into over a three fold effect to the regional economy. This
figure does not include the significant economic output from the dairy
industry in our area. Our lands play host to several endangered species
and of necessity we are good stewards of the environment. We support
solutions for the Bay-Delta ecosystem by providing water for the
Vernalis Adaptive Management Plan and providing water to the local
wildlife refuges.
While we are not contractors to the Central Valley Project, by
virtue of our ``exchange contract'' and our ``purchase contract,'' we
have exchanged our source of water from the San Joaquin River for a
supply from the Central Valley Project via the Delta-Mendota Canal. The
development of the exchange contract enabled the development of the
Central Valley Project by the Bureau of Reclamation, including the
construction and operation of Friant Dam. In the event that the Bureau
of Reclamation is unable to meet its contractual obligations to the
Exchange Contractors, we are entitled to resort to our senior water
rights and receive a flow of water down the San Joaquin River. This is
an important fact, as any increase in capacity to the San Joaquin River
for restoration flows must be of a sufficient size to enable the
Exchange Contractors to receive their water right entitlement to a flow
of 2,316 cfs as is provided for under the exchange and purchase
contracts. In other words, as the size of the channel capacity needed
for the restoration effort is being considered, capacity must be
provided so that the Bureau of Reclamation can meet its obligation to
deliver the water the Exchange Contractors are entitled to under their
pre-1914 water rights.
The Exchange Contractors have four major concerns with the
Settlement Agreement. These concerns are:
I. WATER RIGHT PROTECTION
It is essential that our contract rights with the Bureau of
Reclamation and our historical water rights be honored and protected.
The settling parties state in their Settlement Agreement that they do
not believe that there will be impacts to third parties, the
legislation then, must un-ambiguously affirm that the water rights and
contract rights of the Exchange Contractors will not ever be adversely
affected by this fish restoration program. We do not want to find
ourselves in a situation akin to the farmers on the Klamath River.
II. ADEQUATE ENDANGERED SPECIES ACT PROTECTION
In order to protect our water rights and water supply, it is
essential that any fishery to be introduced into the upper San Joaquin
River not expose the Exchange Contractors to liability under the
Endangered Species Act. We believe that it is essential for Congress to
direct the Secretary of Commerce to exercise his discretion to
designate any fishery reintroduced to the San Joaquin River as a
Section 10(j) experimental population. While some have suggested a take
exemption under Section 4(d), that option is insufficient as Section
4(d) only protects threatened species, not endangered species.
III. ADEQUATE FUNDING FOR IMPLEMENTING THE MITIGATION MEASURES
We understand that the goal of this program is to restore the
salmon fishery to the entire stretch of the San Joaquin River from
Friant Dam to the confluence with the Merced River. This 153 mile
stretch of river has been without fish flows for over 60 years and many
miles of river have been without any flows since 1969. The introduction
of fish flows to many sections of the river will cause substantial
damage to downstream structures and downstream property unless
mitigation measures are in place prior to releasing the flows. As the
legislation is currently crafted, it is possible for those entities
that will implement the Settlement to construct facilities along this
entire stretch of river, release water from Friant Dam and introduce
endangered species into that water without ensuring that necessary
mitigation measures have been completed.
We do not want half of a project constructed. We also do not want
to be in a position of supporting this legislation based on the hope
that the terms of a permit to be issued several years from now will
protect us.
We believe the costs of this restoration effort could approach $1
billion dollars in capital costs alone. Inflation will raise the costs
over the years and operations and maintenance costs are on top of these
capital costs. In as much as Congress will not appropriate the entire
cost of this restoration effort at this time, we believe that it is
prudent to proceed with the restoration effort on a phased basis.
It is critical to understand that approximately 80% of the channel
modifications and mitigation for seepage will occur in our service area
and almost all of the fish screening and fish passage costs will occur
in the reaches of river that we represent. There will be impacts and
risks shifted to our landowners by this settlement and we are simply
requesting that the mitigation required for implementation of the
settlement be in place prior to reintroduction of fish flows and
salmon.
We do not believe that the two phases identified in the proposed
legislation and Settlement Agreement are sufficient. Rather, the
restoration effort should be undertaken by river reach starting with
the upper most section of the river below Friant Dam. That is an area
that will be best suited to the initial planting of fish and will
provide the most suitable habitat of the entire stretch of the upper
San Joaquin River. In-stream restoration actions must occur before
fisheries can be introduced into that reach of the river. After
instream measures and any levees, slurry walls and other mitigation
measures are constructed, only then should water be released to a given
reach of the river. Any flows that would reach the lower stretches of
the river should be bypassed around those reaches until a final route
is chosen and mitigation measures are in place.
While analogies are usually dangerous to make, I liken this to the
construction of a house. If you have enough money to build a 2 bedroom
house you should not frame out for 4 bedrooms only to run out of money
without even completing 2 bedrooms. It is better that the 2 bedroom
house be constructed up to code and that plans be made for future
improvements. This is a prudent course to take for the restoration of
the upper San Joaquin River.
To give you an idea of the problems and challenges the restoration
effort will face and the risks to adjacent properties that have to be
mitigated, I have some photographs and diagrams that show the areas
along the San Joaquin River that will be affected. Attached as Exhibit
A are a few photos of the San Joaquin River as it exists today
throughout our service area. Additionally, we are including as Exhibit
B maps of the San Joaquin River from Friant Dam (reach 1) through its
confluence with the Merced River (reach 5).
In order to assist the Subcommittee in understanding what work
needs to be undertaken along the San Joaquin River, in addition to the
photos and maps, I also have attached as Exhibit C a write-up by the
engineering firm of CH2MHill analyzing the river reach by reach. Below
is a chart summarizing their report. It shows, reach by reach, the work
that needs to be done to provide habitat for the salmon and to protect
the existing flood control facilities and the adjacent lands and water
facilities. The chart and attached analysis also contain cost
estimates.
We know you are receiving a number of different cost estimates. We
believe those prepared by CH2MHill are reasonably accurate, but perhaps
could be defined after in-depth discussions with the Bureau of
Reclamation and the California Department of Water Resources. It may
interest the Subcommittee to know that CH2MHill's work is supported by
a $1 million study funded by the EPA and the company is a contractor to
the Bureau of Reclamation for purposes of analyzing aspects of the
Central Valley Project. In light of this substantial involvement with
the CVP, we believe CH2MHill's analysis should be taken quite
seriously.
[GRAPHIC] [TIFF OMITTED] T0100.002
IV. ADEQUATE REPRESENTATION ON AN IMPLEMENTATION COMMITTEE
The proposed restoration program as ultimately conceptualized by
the Settlement Agreement will represent a comprehensive restoration
program for the upper San Joaquin River. However, since this is only a
conceptual settlement and many specifics are left to implementation, it
is essential that all affected parties be entitled to participate in
the implementation program. We believe that Congress should direct the
settling parties and the federal and state fishery agencies as well as
the Bureau of Reclamation to participate in an implementation committee
that will include in its membership as co-equal members the affected
downstream water interests including the Exchange Contractors, San
Joaquin River Tributary Association, the San Luis & Delta-Mendota Water
Authority and the San Joaquin River Resources Management Coalition. The
purpose of this committee should be to advise the implementing agencies
on the impacts of the fishery and river restoration efforts. This
committee should be distinct from the settlement implementation
committee known as the Technical Advisory Committee comprised of the
Natural Resources Defense Council and the Friant Water Users Authority.
Their task is to implement the Settlement Agreement. The task of this
other committee should be to restore the upper San Joaquin River in a
manner consistent with the Settlement, in a manner that does not
adversely impact third parties, and in a manner that sizes the
restoration program to the funds that are secure.
In our view, inclusion of the above protections in the subject
legislation is essential for our support of the legislation. We do not
think this settlement should be put on the backs of other farmers and
water users. To that end, we support the water agency draft of proposed
amendments to the legislation that we will provide to the committee. We
have already provided this legislation to your respective staff.
Thank you very much for allowing me to testify before you today on
behalf of the Exchange Contractors. We sincerely hope that we will be
able to support this legislation. If our interests are protected, we
will be in a position to do so. I am pleased to respond to any
questions.
[NOTE: Attachments to Mr. Chedester's statement have been retained
in the Committee's official files.]
______
[The response to questions submitted for the record by Mr.
Chedester and Ms. Skinner follows:]
San Joaquin River Exchange Contractors Water Authority
P.O. Box 2115
541 H Street
Los Banos, CA 93635
(209) 827-8616
Fax: (209) 827-9703
e-mail: [email protected]
October 20, 2006
The Honorable Richard Pombo
Chairman
Committee on Resources
U.S. House of Representatives
Washington D.C. 20515
RE: San Joaquin River-Response to the Chairman's Letter of October 5,
2006
Dear Mr. Pombo:
Thank you very much for your letter of October 5,2006 in which you
requested that we respond to a series of questions submitted by
Representative Devin Nunes to all witnesses that testified before the
Subcommittee on Water and Power on September 21,2006. As the Executive
Director of the San Joaquin River Exchange Contractors Water Authority
(``Exchange Contractors'') and as a landowner who will be directly
effected by the restoration we are pleased to be able to provide you
with these responses. For convenience each question is in italics
followed by our response.
Question no. 1: Based on the terms of the Settlement, has an
analysis been completed on the potential water losses on a district-by-
district level and water user-by-water user level? If so, can you
provide a copy of that analysis to the Committee?
Response no. 1: The Exchange Contractors have not compiled such an
analysis and we are not aware of any such analysis that has been
conducted. Presumably, this type of analysis will be required pursuant
to the National Environmental Policy Act (``NEPA'') for any actions
undertaken by any federal agency and pursuant to California
Environmental Quality Act (``CEQA'') for any action undertaken by a
state or local agency.
Notwithstanding the fact that we have not conducted such a study,
the Exchange Contractors are concerned about the potential impact on
their water supply as a result of the Settlement. Without going into
great detail on the water rights of the Exchange Contractors, please be
advised that the Exchange Contractors hold water rights on the San
Joaquin River that are senior to those of the Bureau of Reclamation
(``Reclamation'') as well as most other water users. Our pre-1914 water
rights total some 840,000 acre feet. Pursuant to the contract between
the Exchange Contractors and Reclamation (as revised December 6,1967,
the ``Exchange Contract''), the Exchange Contractors are entitled to
receive a substitute supply of 840,000 acre-feet of water (650,000
acre-feet during critical years). Typically, this water is provided via
the Delta-Mendota canal, but under Sec. Sec. 4(a) and Sec. 8 of the
Exchange Contract, should Reclamation not be able to provide the
substitute supply, the Exchange Contractors are entitled to receive
this supply of water from the Friant Dam down the San Joaquin River. We
are concerned that in the event that supplies from the Delta Mendota
Canal are interrupted as a result of either physical or regulatory
actions, planned or unplanned, that the release of water for fisheries
from Millerton Lake will potentially reduce the amount of water
otherwise available to the Exchange Contractors. In order to better
understand the Exchange Contractor's rights, I am enclosing with this
response a copy of our amicus brief that was filed with the United
States District Court in the matter of Natural Resources Defense
Council v. Rodgers, et al, which case has lead to the current
Settlement.
Question no. 2: According to the California Department of Fish &
Game, Fish Bulletin No. 17, The Sacramento-San Joaquin Salmon Fishery
of California (Page 31), by 1928 there were ``very few'' salmon
remaining in the San Joaquin River above the Merced River and that this
historical salmon fishery that once existed had been severely depleted.
Considering this is 15 years before the construction of Friant Dam, how
would the Settlement change historical facts?
Response no. 2: In as much as the Exchange Contractors are not
proponents of the Settlement, they do not have any greater insight as
to the physical or biological chances for success of this experimental
program than any other party. However, according to our consulting
biologist, Dr. Kathy Freas of CH2M Hill, review of the experiment is
going to be very challenging and the chances for successful
reestablishment of a self-sustaining population of spring run Chinook
salmon is marginal. In fact, we note that Settling Parties' measurement
of success, seven years or more following the reintroduction of spring-
run Chinook salmon to the San Joaquin River, is an annual escapement of
500 fish (Settlement, Sec. 20(d)(l)(B)).
Question no. 3: What is a reasonable expectation of success
relating to reintroduction of spring-run chinook salmon into the San
Joaquin River? How many naturally reproducing spring-run chinook salmon
can we expect to inhabit the San Joaquin River as a result of the
proposed restoration?
Response no. 3: In addition to our response to Question No. 2, the
National Marine Fisheries Service (``NMFS'') has characterized this
program as an ``experiment.'' We have heard their biologists explain
that they believe that the salmon to be reintroduced should be treated
as an ``experimental population'' pursuant to Section 10(j) of the
Endangered Species Act. We agree. There are serious problems associated
with the proposed restoration effort. Without going into great deal,
and we trust that the settling parties will provide you with this
detail, there are many physical and biological challenges to the
reintroduction and restoration of the spring run chinook salmon
fishery. Among those challenges are the following:
Additional spawning habitat is needed in Reach 1 as the
current spawning habitat is inadequate.
A defined low-flow channel is needed in Reaches 2A and 4B
to provide appropriate water depths and temperatures for passage for
adult salmonids during upstream migration and juvenile salmon during
outmigration.
An appropriate hydrologic flow regime is needed to
promote the establishment of riparian vegetation where it does not
exist and prevent encroachment of vegetation into flood control
channels.
Need to maintain suitable water temperatures in all
reaches of the San Joaquin River to prevent salmon mortality along with
increased susceptibility to disease and predators.
Preventative measures are needed to control predation by
largemouth bass and other predatory fish (e.g., smallmouth bass and
pikeminnow) known to inhabit the gravel pits, Mendota Pool, and other
portions of the San Joaquin River.
Modifications are needed to existing barriers to fish
migration along the San Joaquin River including the Chowchilla
Bifurcation Structure, Mendota Dam, Sack Dam, the Sand Slough Control
Structure, and the Mariposa Bypass Bifurcation Structure.
Screening of numerous diversion structures and sloughs
will be needed to prevent fish entrainment and mortality. This would
include screening the diversion structures in the Mendota Pool or
constructing a bypass around the pool similar to the Mendota Pool
Bypass proposed by the Settlement parties.
An appropriate spring-run stock that could adjust to the
wanner water conditions of the San Joaquin River will be needed for
reintroduction. In addition, NMFS will need to allow for the use of
this stock, which may be listed as threatened or endangered and may
affect restoration efforts in other river systems, for reintroduction
efforts on the San Joaquin River.
From the foregoing, it should be evident that this restoration
program faces some very real and difficult challenges. It may be
necessary at some point to conclude that this experiment is a failure.
If so, that will be a decision made by NMFS presumably in consultation
with the Secretaries of Commerce and Interior. The Exchange Contractors
will be watching this program carefully, both in terms of its ability
to actually restore a salmon population as well as for potential
impacts on our operations and those of our downstream farming
constituencies.
Question no. 4: Considering that the restoration of a salmon run
will require consistent cold water flows, is there apian to develop
temperature controls to eliminate impacts on downstream tributary
salmon runs? If so, what are the details of the plan?
Response no. 4: The Responding witnesses are not aware of any
current plan to provide sufficient coldwater to the downstream fishery.
It will be very important to maintain an adequate coldwater pool behind
Friant Dam for this purpose. Even so, should NMFS attempt to use the
channel of the San Joaquin River such as it may exist or be improved,
this will exacerbate an already difficult temperature control
situation. Assuming that the channel is recreated and widened to a flow
of 475 cubic feet per second (cfs), there will still be tremendous
temperature gain in the 80 miles of the San Joaquin River that run
through the service area of the Exchange Contractors. This stretch of
river was historically a braided river that spread out widely across
this portion of the San Joaquin Valley. Again, in conjunction with any
effort to restore the salmon fishery, we believe that these are the
types of studies that must be conducted prior to the reintroduction of
any fish into the river.
Question no. 5: Would the funds authorized by the proposed
settlement legislation produce better results on streams other than the
San Joaquin River-in terms of increasing the population of spring-run
chinook salmon?
Response no. 5: The responding witnesses believe that NMFS is in
the best position to respond to this question. Nevertheless, we find it
hard to believe that $1 billion could not be better spent elsewhere to
produce spring run salmon. NMFS is currently working with parties in
other areas of California to improve spring run salmon populations. For
example, recently the California Department of Water Resources
submitted a license application for the Oroville Facilities
hydroelectric relicensing (P-2100) to the Federal Energy Regulatory
Commission. According to the draft environmental impact statement, the
Department of Water Resources proposes to spend several hundred million
dollars restoring habitat for a salmon fishery. This will include
spring run chinook salmon, fall run chinook salmon and steelhead on the
Feather River. It is our understanding that there are hopes of creating
several thousand additional fish on the river at a cost substantially
less than the nearly $1 billion being proposed for expenditure on the
San Joaquin River.
Question no. 6: Please identify how the terms of the Settlement
will provide water quality improvements in the Delta.
Response no. 6: This question should be answered by settling
parties. However, from the analysis of the third parties it appears
that very marginal improvement will be provided as any additional water
contribution would only rarely provide improvements in Delta water
quality and when it did it usually occurred in March when there is
minimal irrigation demand. No current water quality standards adopted
by the State Water Resources Control Board (SWRCB) will be met with
flows from the restoration, though small amounts of water currently
used to meet standards from New Melones may be conserved.
Question no. 7: Is there a plan to address the groundwater
overdraft that will occur as a result of reduced water deliveries to
the Friant Division? If so, what are the details of the plan?
Response no. 7: This should be answered by the defendants since we
do not have sufficient knowledge to adequately respond to this
question.
Question no. 8: What are the estimated costs to implement the
restoration plan proposed in the Settlement? Please provide details on
how you develop the estimate.
Response no. 8: Please see the attached analysis prepared by
CH2MHill. In summary, CH2MHill's estimate is based upon costs projected
forward to mid-term construction schedule of 2014 based upon 6%
inflation factor. Their estimate totals $1,071,537,000, which includes
use of the river channel in Reach 4B, rather than the by-pass. If the
by-pass is used, the costs will be reduced by $260,000,000.
The San Joaquin River between Friant Dam and the confluence of the
Merced Dam--which is the part of the river subject to the Settlement--
is broken down into the following Reaches: Reach 1 runs approximately
38.5 miles from Friant Dam to Gravelly Ford; Reach 2A runs
approximately 13 miles from Gravelly Ford to the Chowchilla Bifurcation
Structure; Reach 2B runs approximately 11 miles from the Chowchilla
Bifurcation Structure through Mendota Pool to Mendota Dam; Reach 3 runs
approximately 23 miles from Mendota Dam to Sack Dam; Reach 4A runs 13.5
miles from Sack Dam to the Sand Slough Control Structure; Reach 4B runs
approximately 33 miles from the Sand Slough Control Structure to Bear
Creek; and, finally, Reach 5 runs 17.8 miles from Bear Creek to the
confluence of the Merced and San Joaquin Rivers.
A Reach-by-Reach summary of required improvements to meet the
Restoration Goal, along with an estimate of costs, prepared by CH2MHill
is attached as Exhibit 4 to the Amicus Brief and included hereto.
Question no. 9: The proposed legislation submitted to Congress has
a provision of ``no private right of action.'' What prevents parties
from filing suit for more water after 2026? What prevents a third party
from filing suit in reference to NEPA compliance, or other applicable
laws, as feasibility studies are conducted on various aspects of the
Settlement?
Response no. 9: (i) The first question seeks information on what
will prevent parties from filing suit for more water after 2026.
Although if a suit were to be filed for more water after June 30,2026
it would be filed as a separate action (Settlement, Sec. 20(a)),
nothing will prevent third parties from filing suit for more water
prior to 2026. However, we believe there are various defenses to such
an action based on the comprehensive nature of the plan to be put in
place by virtue of the Settlement and related legislation. Given the
breadth of the restoration plan, assuming it is implemented in a manner
contemplated by the parties, we expect that a strong defense would be
available for the Exchange Contractors as well as the settling parties
regarding any further action that might be undertaken on the San
Joaquin River above the confluence with the Merced River.
As for additional water after 2026, the Settlement provides the
Restoration Flows shall not be changed ``except by a written agreement
signed on behalf of all the Parties, acquisition of water from willing
sellers, or a final recommendation by the SWRCB and a final Order of
this Court.'' (Settlement, Sec. 20). If a Party seeks additional flows,
the Settlement obligates them to move the Court to have the SWRCB make
certain findings relevant to the request for a change in the
Restoration Flows. The Court shall evaluate the request for a change in
Restoration Flows in light of the extent of the implementation and
success of the Restoration Flows and other restoration measures taken,
the extent of success in meeting the Water Management Goal, the
effectiveness of restoration measures provided for in the Settlement,
progress of the Settlement, and environmental and economic effects of
the Restoration Flows. (Settlement, Sec. 20(d)).
(ii) Section 108 of the proposed legislation provides as follows:
``Nothing in this Title shall confer upon any person or entity not
a party to the Settlement a private right of action or claim for relief
to interpret or enforce the provisions of this Title or the Settlement.
This provision shall not alter or curtail any right of action or claim
for relief under any other applicable law.''
In discussions with the settling parties, which included the United
States Department of Justice, the parties agreed that the private right
of action would not foreclose litigation based on NEPA, the Endangered
Species Act, the Administrative Procedures Act, (put citations after
each statute), or other applicable federal laws. The legislation will
only prohibit litigation based on the San Joaquin River Restoration
Settlement Act as well as on the Settlement Agreement itself. In fact,
the water users have not waived their right to challenge any action
taken under the Settlement Agreement in the event that they believe
that there is a violation of any of the foregoing legal provisions.
Further, pursuant to the Administrative Procedures Act (``APA''),
should the implementation of the Settlement or the Act be undertaken in
a manner that is arbitrary or capricious, and to the detriment of
downstream water users, it is more likely than not that the downstream
water users will file litigation that challenges the arbitrary and/or
capricious actions of the Secretary.
We are pleased to have this opportunity to respond to your
questions and to have had the opportunity to testify before the
subcommittee on water and power. In the event that you or Mr. Nunes
have any more questions, whether about our response or the Settlement
and related legislation, please do not hesitate to contact us.
Respectfully yours,
Steve Chedester
Executive Director
San Joaquin River Exchange Contractors Water Authority
Lynn W. Skinner
Landowner, Wolfsen, Inc.
Enclosures
cc: The Honorable Dianne Feinstein
The Honorable Barbara Boxer
The Honorable Dennis Cardoza
The Honorable Jim Costa
The Honorable Devin Nunes
The Honorable George Radanovich
Exchange Contractors Board of Directors
Tom Birmingham, Westlands Water District
Dan Nelson, San Luis and Delta Mendota Water Authority
Allen Short, San Joaquin Tributaries Agencies
______
Mr. Radanovich. Thank you, Mr. Chedester, I appreciate your
testimony.
And now hearing from somebody who actually lives in the
subject area that we are discussing, I want to introduce Ms.
Lynn Skinner, who is the owner, long-time farmer, of Wolfsen
Farms in Los Banos, California.
Ms. Skinner, welcome to the Subcommittee.
STATEMENT OF LYNN SKINNER, OWNER,
WOLFSEN FARMS, LOS BANOS, CALIFORNIA
Ms. Skinner. Thank you. Thank you, Mr. Chairman and
honorable Members of the Subcommittee. It is a real thrill to
be here to be part of this process. I am enjoying it all.
My name is Lynn Skinner, and I am a California farmer. For
four generations my family has farmed on the San Joaquin
Valley, and I expect that my grandchildren will participate in
the family farm, as well.
Our farm is located in Reach 4B of the San Joaquin River,
which is the area, of course, that is being looked at for
reintroduction of the Spring Chinook Salmon.
I am testifying today as a farmer who will be directly
affected by the legislation you are considering. I am here as a
surrogate to hundreds of other farmers along that river who
will also be affected, especially those in Reach 4B. I am not
here expressing opposition to, or favor for, the proposed
settlement. I am, however, here to go on record against making
those farmers downstream of the dam victims of the settlement.
How the legislation is crafted to a great extent affects
how other farmers and I will be impacted. I am here this
afternoon to put a face on, and a voice to, Reach 4B, to let
you see and hear that we are more, much more, than the number
four and the letter B.
All of us in Reach 4B understand the significance of the
effort to restore fish to the river. However, when decisions
are made I hope you will keep me and the hundreds of other
affected farmers in mind, and the economic and moral
contributions that we make to this great nation.
On our farm we grow predominantly canning tomatoes and
cotton, some alfalfa, with a few what we call flex crops. Our
farm is located adjacent to the San Joaquin River, in an area
that may be flooded by this fishery restoration effort.
Here is the problem. We farm in an area where there is high
groundwater. If water is allowed to go down that stretch of the
river, where it hasn't flowed for like 60 years, it is going to
flood adjacent lands, both from over-the-top flooding or from
seepage. This last really wet season, we lost about 400 acres
due to seepage. And that was through the bypass.
Now, let me explain why this is the case. Historically, the
San Joaquin River never, ever flowed through just one channel
at this particular reach. It was what is known as a braided
river, and that is that many different channels flow through
this very, very flat ground.
When Friant Dam was built for flooding, and it was
controlled, farming operations commenced along those once-
historic-flooded areas. Over the past several decades the river
channels have disappeared, leaving only a creek-size segment of
the old channel that can literally be waded across in wet
times.
When it is wet, the water would otherwise have, when it is
wet now, the water flows through what is called the Chowchilla
Bypass. It is a manmade channel, authorized by the government,
and built for flood control.
Now, you have heard a lot about cfs. That is cubic feet per
second, the standard water-flow measurement. For the purpose of
this new restoration flow down the old channel, remember that
old channel is about knee-deep, that is like filling 83,000
average-size swimming pools, and dumping them into the river
every day.
Now, one day's flow would irrigate 3,000 acres of tomatoes,
and nearly 4,000 acres of melons. I am sure I don't need to
remind you that the estimates for the Spring Run Salmon is 500
fish annually. That is compared to about 120,000 tons of
tomatoes, and 2,400,000 boxes of melons. The economic variances
are staggering.
Now, I am not opposed to fish. But we need to look at
protecting the farm ground. I urge you to use some logic in
this equation and give preference to an improved Chowchilla
Bypass. It could be modified to function as a fish corridor,
rather than trying to construct a new, unnatural main channel.
Because remember, there was no main channel through here.
So basically what we are talking about is another manmade
channel on the San Joaquin. So in essence we have two manmade
channels going through that area.
While you certainly can restore part of the river upstream
from Reach 4B, attempting to restore this particular segment of
the river is unrealistic, illogical, and threatens the site of
a huge food-producing area, an economic-generating area, and it
is expensive.
The estimates to restore the Reach 4B are about $400
million, or 40 percent of the entire project. Now, my dad and
uncle paid well under $200 an acre for our ranch. And now,
however, this land is being scheduled for permanent crops, and
recent sales around have been up to $10,000 for tree- or
permanent-crop area, more if the crop is already on the land,
and less if it is row crop.
If we use the mid-price range of 10,000 acres and we apply
it to approximately 5,000 acres that would be needed for
mitigation, we are looking at a purchase price of like $50
million or more if more land is ruined, on top of the $400
million for restoration costs. So now we are at like $450
million for Reach 4B.
This, of course, does not include any cost of litigation
should we feel that the amount offered by the government to
condemn property is adequate, and in turn we should choose to
litigate the value of our land.
Now, Don and I just lived through a litigation due to
insufficient funding of a government project. And I can tell
you nobody wants that. It is imperative that an exact
accounting of cost be determined before the project is started.
My second concern was about the Endangered Species Act, and
you have heard from my colleagues on that. However, I do have
one point, and that we feel is being overlooked, and that is
the displacement of a huge habitat sanctuary that has developed
naturally, and will be totally decimated, if it is turned back
to nature.
All of us in Reach 4B have taken great care to see that the
old main channel is left entirely alone as a wildlife
sanctuary. Numerous species would disappear if the river were
to be mucked out. I don't know if that is a technical term or
not.
We are pleased with the progress that we have lived through
this week. I believe in compromise. I mean, I am a mom; I have
to. It is our hope that we will get the assurances that we need
to move forward with this. If not, I don't think it is fair
that you should ask us to give up all that we have worked for
for generations, and simply accept any legislation that comes
along and walk away from our heritage.
Those of us in Reach 4B are living the American Dream. My
father was a grandson of a German immigrant, and he wanted to
be a doctor, but he was too poor for all that schooling. So he
became a farmer, set the groundwork for the farm that we have
today.
My husband put himself through school, alternating
semesters by working and going to school one. His first job was
at 11 years old, picking cotton in a sack, and he has worked
every day since.
Our sons and daughters are actively working on our family
farm. The biggest problem we have with our grandchildren is
keeping them in school, because they want to be working on the
farm.
The Bowles and the Nickel and the McNamara families and
others all have similar rich pioneering histories in the area,
only older by a generation.
My daughter, Laurel, and I came and made this trip out here
because it was important. It is important to Don and I, and it
is important to her, and it is important to her brothers and
her sisters and her nieces and nephews: the fifth generation.
It is their heritage. It is important enough to get me on an
airplane.
I urge you to do whatever is in your power to help us help
you. Do what is logical, do what is economically sensible, and
do what is morally right.
Thank you. I would be happy to answer questions.
[The prepared statement of Ms. Skinner follows:]
Statement of Lynn W. Skinner, A California Farmer
Good Morning, Honorable Chairman Radanovich and honorable members
of the Sub-committee.
My name is Lynn Skinner and I am a California Farmer. For 4
generations my family has been farming in the San Joaquin Valley and I
expect that my grandchildren will also participate in family farming.
Our farm is located in reach 4-B of the San Joaquin River which is an
area that is within that stretch of the river that you are considering
for reintroduction of Spring Run Chinook salmon.
I am testifying today as a farmer who will be directly affected by
the legislation you are considering. I am here as a surrogate for the
hundreds of other farmers along the San Joaquin River who will also be
affected, especially those in reach 4-B. I am not here expressing favor
for nor opposition to the proposed settlement. However, I am here to go
on record against making the farmers downstream of Friant Dam into the
victims of the Settlement. How the legislation is ultimately crafted
will determine the extent to which my fellow farmers and I are impacted
by the settlement. I am here today to put a face on, and voice to reach
4-B; to let you see and hear that we are more, much more than the
number (4) and the letter (B)!
My testimony today addresses three issues, they are:
1. THE POTENTIAL FOR FLOODING IN REACH 4-B OF THE SAN JOAQUIN
RIVER AND THE USE OF THE REACH 4-B BY-PASS KNOWN AS THE CHOWCHILLA BY-
PASS.
2. THE NEED TO PROTECT FARMERS FROM THE POTENTIAL ADVERSE IMPACTS
OF INTRODUCING AN ENDANGERED SPECIES INTO THE SAN JOAQUIN RIVER.
3. THE DISPOSITION OF SURPLUS LANDS THAT MAY BE ACQUIRED BY THE
SECRETARY OF THE INTERIOR FOR MITIGATION PURPOSES.
The farmers are the original environmentalists! Most of us in the
farming community work on a daily basis with the environment and the
environment sustains our livelihood, simply put, if we don't take care
of the environment (including land, air and water) it doesn't take care
of us!
I understand the significance of the effort to restore fisheries to
the San Joaquin River. Candidly, I do question whether it is worth $1
billion or thereabouts to restore somewhere between 50 and 500 fish to
the river when we have so many other environmental needs that could
greatly benefit from this money or basic domestic infrastructure
projects. However, that is a decision that you and others will have to
make. But, when you make that decision, I hope you will keep me and the
hundreds of other affected farmers in mind, and the economic and moral
contribution we make to this great nation.
1. THE POTENTIAL FOR FLOODING IN REACH 4-B OF THE SAN JOAQUIN
RIVER AND THE USE OF THE REACH 4-B BY-PASS KNOWN AS THE CHOWCHILLA
BYPASS.
On our farm we grow predominately canning tomatoes and cotton and
alfalfa with a few ``flex'' crops (crops that are good for the soil).
Our farm is located adjacent to the San Joaquin River in an area that
may be flooded out by this fishery restoration effort. Here is the
problem: We farm in an area where there is high groundwater. If water
is allowed to flow along this stretch of the river where it hasn't
flowed for at least 50 years, it will flood out the adjacent lands.
Let me explain why this is the case. Historically, the San Joaquin
NEVER flowed in a single channel in that area of the valley. It was a
``braided river'' that is, it formed many different channels as it
spread over the flat valley floor. When Friant Dam was built and the
flooding of the area controlled, farming operations commenced along
those once historically flooded areas. Over the past several decades
the river channels have disappeared, leaving only a creek-sized segment
of river that can literally be waded across by an adult. In wet times,
the water that would otherwise have flowed through that area now flows
through the Chowchilla bypass, a man-made channel authorized by the
government and built for flood control because that area and others
along the river were so prone to flooding.
I know from my discussions with others related to this restoration
proposal, that a type of ``beefed up'' levee is supposed to be
constructed along Reach 4-B in order to prevent flooding adjacent to
the river. Just to give you an idea of the magnitude of potential
flooding, engineers tell me that as much as a quarter mile on each side
of the river could be flooded which would put 5,440 acres of
agriculture out of business. You've heard a lot about CFS (cubic feet
per second, the standard water flow measurement) For the purpose of
this ``new restoration flow'' down the old channel, (that's knee deep)
that's like filling almost 83,000 average sized swimming pools per day
or 458 million cases of bottled water EACH day!! One day's flow would
irrigate nearly 3,000 acres of tomatoes or nearly 4,000 acres of
melons. I'm sure I don't need to remind you that the goal for Spring
Run Salmon is 500 fish...annually! That is 1.3 fish a day compared to
120,000 tons of tomatoes or 2,400,000 boxes of melons. The economic
variances are staggering!
I urge you to put some LOGIC into the equation and give preference
to the use of an improved Chowchilla by-pass channel that could be
modified to function as a corridor for fish migration rather than
trying to construct a new, un-natural, main channel (remember the river
never did flow through just one main channel in this area, so basically
what we are talking about here is another man-made by-pass) of the San
Joaquin, so we would have TWO man made bypasses running through the
same area!
While you certainly could restore certain sections of the river
above Reach 4-B, attempting to restore this particular segment of the
river is unrealistic, illogical and threatens the site of a huge food
producing area.
Secondly, in order to restore the 4-B reach and to protect the
adjacent farmers, estimates are that about $400 million or nearly 40%
of the entire project would have to be spent on this reach.
My Dad and Uncle paid well under $200. per acre for our ranch. Now,
however, this land could be scheduled for permanent crops and recent
sales have been around $10 thousand per acre, more if a permanent crop
is already on it, less if it is row crop farming. If the mid- price of
$10,000 per acre were to be applied uniformly to all 5,440 acres, that
may need to be acquired, you are looking at a purchase price of 54
million dollars; ON TOP of the 400 million for restoration costs; now
we're totaling 450 million for restoration of reach 4-B, only!
This of course does not include any operation and maintenance cost
nor litigation costs that may arise if the farmers feel that the amount
offered by the government to condemn our property is inadequate and in-
turn they choose to litigate the value of their land. Don and I just
lived through a litigation due to insufficient funding of a government
project and I can tell you, nobody wants that! It is imperative that an
exact accounting of costs is determined before any project is started.
2. THE NEED TO PROTECT FARMERS FROM THE POTENTIAL ADVERSE IMPACTS
OF INTRODUCING AN ENDANGERED SPECIES INTO THE SAN JOAQUIN RIVER.
My second concern is that you are proposing to introduce an
endangered species into the river. I understand that there is some
controversy over how to designate these fish so that water and farming
operations may continue in tandem. I don't have a legal background in
the Endangered Species Act; however, I understand there may be ways to
protect farming and water operations under the Act. I urge you to
include in this legislation some mechanism that will give us assurance
that our operations will not be shut down by having an endangered
species in our backyard! We are already hosts to several endangered
species and have learned to co-habitat with them. However, none of them
are fish and Spring Run Salmon would impose a whole new set of problems
and operating concerns that we presently don't have.
One other point that we feel is being over looked is the
displacement of the huge habitat sanctuary that has developed naturally
and that will be totally decimated if it is ``turned back to natural
state''. All of us in reach 4-B have taken great care to see that the
``old, main channel'' is left entirely alone as a wildlife sanctuary.
Numerous species would simply disappear if dredging were to occur.
3. THE DISPOSITION OF SURPLUS LANDS THAT MAY BE ACQUIRED BY THE
SECRETARY OF THE INTERIOR FOR MITIGATION PURPOSES.
My last item of concern is this: It is my understanding that the
federal government and perhaps the state government may be acquiring
some land upon which to construct levees and some other facilities for
this program. I also understand that in the event too much land is
acquired, that the surplus land may be disposed of. I believe that it
would only be fair if you would direct the Secretary to offer the land
back to the farmers from whom it was originally taken. On the other
hand, if the land is to be converted into parkland or other public use
land, then the secretary should be required to include a condition on
the sale of the land that protects adjacent landowners from intrusion
by the public.
We are being asked/told to accept this legislation. In order for us
to do so, you must give us some assurances that we won't be harmed.
Don't ask us for unconditional, mindless support. If you want us to not
oppose this legislation please work with us and give us the reasonable
protections we are asking for. If we are adequately protected, we will
work with you, the fishery agencies and our local water districts to
help ensure the success of this program. If you won't agree to provide
us with some assurances, then I don't think it's fair that you should
expect us to give up all we have spent generations working for and
simply accept the impact of this legislation, and walk away from our
heritage!
Those of us in reach 4-B are representational of all Farmers and as
such, we are the epitome of all that is good and right about this
Country. We are the history that helped build our country into what it
is today. We ARE the American Dream. My father, grandson of a German
Immigrant, wanted to be a doctor, but was too poor to go to that much
school so became a farmer and set the foundation for the organization
we have today. My husband put himself through college by alternating
semesters of school and work. His first job was at 11, picking cotton
in a sack, and has worked ever since. Our sons and daughters are
actively working in our family farm. The biggest problem we have with
our grandchildren is keeping them in school; they all want to be home,
working on the farm.
The Bowles and Nickel and McNamara families all have similar, rich
pioneering histories in the area, only older, by a generation!
We, the family farmers in reach 4-B, along with others along the
river, represent the history, the hope and the future of America
through our economic and moral contribution and I urge you to do
whatever is in your power to help us help you. Do what is logical, do
what is economically sensible and do what is morally right. Thank you
for your attention. I would be happy to answer any questions.
______
[NOTE: The response to questions submitted for the record
by Ms. Skinner and Mr. Chedester can be found on page 90.]
Mr. Radanovich. Ms. Skinner, thank you very much for your
testimony. It is very appreciated.
I am going to start off with questions. And I want to start
off by telling the panel--and most of the panel is involved in
negotiations on third-party issues, with the settling parties
as well, to try to reach an agreement--you have done a great
job.
And from what I understand, and this is my sense of it, and
you can correct me if I am wrong, the two controversies kind of
swirl around two issues, or the controversy is around two
issues. And that is, one is that the Reach 4B area can barely
handled 50 cubic feet per second. And then the second is the
Endangered Species Act issues, especially as it relates to
Spring Run Salmon, but also some relicensing issues.
And you, as well as others, have been, the last 24/36
hours, have been trapped in Senator Feinstein's office, and
then told to get an agreement, and made a lot of progress
yesterday. My understanding is that most of the issues on Reach
4B have been addressed to people's satisfaction. And there has
been even progress on the ESA issue, especially as it relates
to tributaries.
But there is the issue of endangered species and how it
affects Delta, pumping out of the Delta, that is, in my view,
it may not be the only issue, but probably the most contentious
one that remains. And I think the key in getting an agreement
that we can get the third parties on board, and so therefore
could move, is making sure that we get a resolution of that
Delta ESA issue, while not making this whole package a
lightning rod for the Endangered Species Act, which will not
enable us to be able to get it done in the way that we would
like to. I think it is in everybody's interest to get this
issue done and off the table as fast as we can.
Having that in mind, or keeping that in mind, I would like
to get panel members to suggest how they think that something
like that can be done. Do you have concepts? Do you have
suggestions on how to word part of this Act to address that
issue, while still enabling us to get this thing moved through
the House and Senate as soon as we can?
We will start with you, Mr. Birmingham, and just go down
the line.
Mr. Birmingham. Well, Mr. Chairman, first I want to observe
that it is thanks to the efforts of every Member of this
Subcommittee present today, and the Chairman of the full
Committee, as well as Senator Feinstein, that we have made the
progress.
I have heard a variety or a number of you say this morning
and yesterday when we met that it is critical that to avoid the
conflict and the uncertainty that we have had with prior
agreements, this language, this Act needs to be unambiguous.
And I could not agree with you more.
My understanding is consistent with yours: that we have
made progress on the 4B issue, that that issue has been
resolved. I have to say that that is not an issue for Westlands
Water District, but I certainly understand; and after the
compelling testimony of Ms. Skinner, have a much better
understanding of that issue.
On the issue related to the Endangered Species Act, there
was significant progress with respect to developing language
that would provide protection for the tributary agencies. But
as is always the case when we get into the Delta, it becomes
much more difficult.
Now, there are existing regulatory mechanisms that can be
used to provide the types of assurances that the CVP export
contractors would like to see, that the Department of Water
Resources would like to see for its State Water Project to
contractors, that would not exempt us from the Endangered
Species Act. That is not what we are seeking. But what we want
to avoid is a circumstance where we support the reintroduction
of a species, but then we are punished for it, as well.
And yesterday a representative from NOAA Fisheries offered
some language concerning how some of that, those regulatory
processes could be implemented, and we were satisfied with
that. And I am confident that if we sit down and talk further
in good faith, that we will be able to persuade all of the
parties to accept it. It is going to require your help,
however, and the help of Senator Feinstein.
Mr. Short. Thank you, Mr. Chairman. I don't have much more
to add to Mr. Birmingham, being in the same meetings and
following him around for the last couple weeks. He has said it
pretty eloquently.
But I will say this. From that perspective that language
has been developed, at least on the FERC-related issue, along
with the ESAPs, which is 10[j] and 4[d], and we think that we
can bring closure to those pieces. And we think we can do it in
a fairly compressed time frame.
So I find it encouraging from that standpoint. To get it
through your process, with all due respect, Mr. Chairman, I
have a hard time getting stuff through my own process, so I
can't offer you any suggestion from that standpoint. But we are
encouraged at least from a language perspective, and its
development.
Mr. Robbins. Thank you, Mr. Chairman. And I want to also
second Tom's indication to all of you. We very much appreciate
all of your leadership in getting this done, and apparently we
are going to continue it after this hearing is over in an
effort to try to resolve these matters.
I want to also echo we believe that we have at least core
language now that may satisfy our Endangered Species concerns,
at least with respect to the San Joaquin River. And as Mr.
Birmingham has indicated, there are tools we think we can bring
to bear for resolution of Delta issues, as well.
In addition, we have some language that we have proffered
to the National Marine Fisheries Service, and have a tentative
approval, though everybody is still waiting for our final
negotiating sessions that would essentially make sure that the
relicensing process at the Federal Energy Regulatory Commission
doesn't trump what we are trying to do here today.
Again, it wouldn't exempt us. It would just simply say that
these experimental conditions would stay neutral with respect
to these projects, and when the experiment was over or at the
end of the settlement period, the licenses could be reopened
for Spring Run, and if it were necessary at that point. So
again, that FERC language is very narrow, getting us right down
to just the protections that the other parties are getting
under the settlement agreement.
So assuming that language can move forward, I think you
will have our full support in trying to implement this as soon
as possible.
Mr. Chedester. With respect to Reach 4B, I do believe we
have come to at least conceptual closure. The language looks
right. We have all got to go back and sell it back to our home
folks, but it looks like it is worked out.
I do want to thank all of the delegation that was there
yesterday. They made some very clear points, and actually
applied the sufficient pressure to make it happen.
I just don't want to forget that while the exchange
contractors and ESA aren't big, we definitely support all of
our colleagues here. We have to have Endangered Species Act. We
are on the mainstem of the river. Lynn's lands are along the
river. We are going to need Endangered Species Act protection
all the way up the river, for all of us.
And I will leave it to the experts on the language. That is
why we have good counsel.
Mr. Radanovich. Thank you. Thank you very much. Ms.
Skinner, if you would like to?
Ms. Skinner. Just a short comment. I would like to thank
everyone that was there today--or yesterday, actually. It was a
productive meeting. The pressure was applied when it needed to
be. And I do think we are feeling relatively comfortable.
I am not a technical person. I am a mom, so I am logical.
So once it is written, then I would like to read it.
Mr. Radanovich. Very good. All right. Well, thank you. I
will defer for other questions, but I would prefer to lock you
all back in the room as soon as possible so that you can finish
this thing out.
So I will defer to Mr. Pombo for questions.
Mr. Pombo. Thank you. And I know that there are a lot of
concerns about the impacts on all of you of going forward with
this. And I think all of us understand that. And we all
represent either you or people very much like you in our own
districts, and we understand.
I would say that at this point, it is a matter of drafting.
It is a matter of coming up with the right language. You heard,
all of you heard the previous panel and their testimony. They
all pledge that there would be no third-party impacts; that
they all agreed that the final document that would be produced,
the final legislation that would be produced, would not have
the third-party documents. And at this point it is up to us to
come up with the right language in order to do that. Hopefully
nobody goes back on that, hopefully nobody changes their mind
after they testified before a Congressional hearing. But you
did hear them all pledge that there would be no third-party
impacts. And I think this committee is committed to doing that
in order to carry out the settlement.
I think we also know at this point that this is something
that we want to do. It is something that I believe is the right
thing to do, in terms of restoring the river and doing
everything that we possibly can to restore the fishery on that
particular river.
But you have my commitment and the commitment of this
committee that, as we move forward with legislation, that we
will do everything we possibly can to make sure that there are
no third-party impacts, because of what we heard yesterday, the
meetings we had, and the testimony that you heard earlier today
where we had a pledge from all of the signatories on that
agreement that they would do that, and that they agreed to do
that.
I know that some people like to try to dance around their
answers a little bit. But I think after they were asked the
same question five different times, finally they all answered
that they were committed to that.
So I am very much in favor of doing this and moving
forward. And I look forward to working out the final language
that all of you can agree to.
Mr. Radanovich. Thank you, Mr. Chairman.
Mr. Birmingham. Thank you, Mr. Chairman.
Mr. Short. Thank you, Mr. Chairman.
Mr. Pombo. Well, thank you.
Mr. Radanovich. I am going to recognize Mr. Cardoza very
quickly.
Mr. Cardoza. Thank you, Mr. Chairman. This is a question
for the entire panel. And before I say this, I want to thank in
particular Lynn Skinner for coming out and giving such eloquent
testimony. I was out of the room, but I didn't miss it. And I
appreciate very much your passion and your honest conviction on
this issue.
The first panel was asked the question what would happen if
the settlement does not go forward. I would like to ask each of
you to briefly, because we have limited time, tell us what
would happen if a settlement goes forward without the third-
party protections that we are trying to implement in the
legislation.
Mr. Birmingham. The very brief and simple answer to that,
Mr. Cardoza, is that if the settlement goes forward without
unambiguous protection in the authorizing Act to prevent third-
party impacts, there will be endless litigation over its
implementation. I can guarantee that if the Secretary of
Commerce makes a decision to reintroduce Spring Run without the
protections we need, Westlands Water District will do
everything that it can judicially to prevent that from
happening, because it will only take more water away from us.
And again, I want to make the point that we support, as
does the Chairman of the full Committee, this program. We think
it is a great idea. But we should not be punished by reduced
water supplies as a result of a decision made to reintroduce a
species, a species that we had absolutely nothing to do with
its extirpation.
Thank you.
Mr. Cardoza. Mr. Short?
Mr. Short. Well, I will echo that, from that standpoint. We
will fire up our attorneys just as much as Mr. Birmingham and
Mr. Robbins will fire up himself. There is an issue there.
In terms of that, and if there is potentially more water
taken from our organization or our Tributaries Association,
that is a problem. And as I have indicated to you before, that
there is a second bite at the apple for us when all of us go
and get relicensed. We will get another opportunity----
Mr. Cardoza. I am going to ask a question about that in the
second round.
Mr. Short. I figured you would. But there is another bite
at the apple from that perspective, as well. So we will get hit
twice if, in fact, we don't have the protections in play.
Now, there are other issues if the thing goes forward and
there is no--well, I will leave it at that, because it is the
judge's, you are not asking that question. So I will just
simply say we will fire up the attorneys, and we will see what
happens.
Mr. Cardoza. Mr. Robbins?
Mr. Robbins. That is an interesting question, because we
don't know. There has been some speculation about what would
occur in the absence of these mitigation measures, because we
don't know what regulatory actions would or would not be taken.
But let me just answer it by saying if no other actions are
taken, Section 4[d] of the Endangered Species Act currently
does not have an exemption or an exception for salmon on the
San Joaquin River. So we would potentially be subject to take
limitations if those fish began to----
Mr. Upton. Mr. Robbins, I do hate to interrupt you, but we
are down to five minutes on a vote. So unless you can finish in
like 30 seconds, we might want to hold the answer to that until
we get back.
Mr. Cardoza. We can just reengage when we come back?
Mr. Radanovich. Yes.
Mr. Cardoza. Thank you.
Mr. Radanovich. But I will say that I beat every other
Member back here after the last series of votes. And if you
want to ask questions, you have to get back here soon.
And with that, we will recess. I am sorry, there are three
votes, but we have to go do our duty. Thank you.
[Recess.]
Mr. Cardoza. I think we were at Mr. Robbins. And the
question for the entire panel was, the first panel was asked
the question what would happen if the settlement does not go
forward. I would like to ask each of you to tell us what would
happen if the settlement goes forward without having the
qualifying language that we need in the Congressional Bill that
would protect the third parties, as everyone has stated they
want to do.
Mr. Robbins. And once again, let me just reiterate. You
know, we don't know all the answers to that because there are
some regulatory uncertainties that agencies will have to
consider.
But nevertheless, under the current regime, without change
what will happen, of course, is that the Spring Run Salmon
would be introduced into the system. It would, our biologists
tell us, undoubtedly, to the extent that the experiment is
succeeding, lead to the propagation of Spring Run on the
tributaries, as well, which would put our projects under the
Endangered Species Act relative to that fish. And in the event
that we were unable to obtain take exemptions, significant
water costs. Remember, we operate our systems for Fall Run,
which means that we have water from the Fall through the Spring
to support Fall Run Salmon.
The Spring Run Salmon actually are all throughout the year,
but particularly difficult to sustain in the summertime down in
the lower end of the Valley, where temperatures soar. So the
potential for significant water costs, huge water costs, power
losses, and economic difficulties for the districts, for all of
the parties all along the river are enormous without
environmental protection.
Mr. Chedester. Wow, I don't know if I can add any more to
that. But I think the clear answer is that if this begins to
move forward to settlement without the appropriate mitigations
for the third-party impacts, we are going to have to come back
with the exchange contractors and I hope the rest of the panel
I am hearing, and say don't support this legislation, and don't
let it go forward without it.
There will be impacts to us. We will have severe economic
impacts. As mentioned earlier, there will be impacts with
respect to endangered species. And we just, you know, it is
almost unfathomable. Besides, I think you would be violating
the settlement agreement, because that is third-party impacts.
So I just don't know how it can go forward without that being
addressed.
Ms. Skinner. On a personal note, we would probably be under
water, flooded, either by top or by seepage. Again, it is just
absolutely flat out there, like a table. And if you pour a
bucket of water on a table, it is going to run everywhere.
Which would mean we couldn't plant, which would mean we
couldn't harvest, which would mean we couldn't pay our
operating loan off, which would mean the bank would foreclose,
which would mean--I mean, it would be economic chaos.
Mr. Cardoza. And just as a follow-up to your answer, Lynn,
because I think it is very appropriate. How many acres would
you say might be affected? Do you have any guesstimate? Because
I have met with folks. I know that there is a myriad, and not
all of them today would even know that they are being impacted
today. But just your guess.
Ms. Skinner. Right. In Reach 4B only?
Mr. Cardoza. Well, that is where you have your most
experience.
Ms. Skinner. Oh, how many acres are we--I don't know.
Mr. Chedester. Probably 10,000 acres.
Mr. Cardoza. Up to 10,000 acres?
Ms. Skinner. Yes, in that area.
Mr. Cardoza. So close to what we set aside in the Headlands
Forest Project, which was 10,000 acres of forest, we could be
potentially taking that out of production in the Central Valley
if we don't do the right----
Ms. Skinner. Absolutely.
Mr. Cardoza. Go ahead, go ahead.
Mr. Chedester. That is just in the Reach 4B. There are
other lands upstream that is going to be impacted, also. So it
is broader, it is larger than that.
Mr. Cardoza. OK.
Ms. Skinner. Yes, you know what, 4B is larger than that,
too.
Mr. Cardoza. Mr. Robbins, and we may not have enough time
to answer this entirely, I want to ask the question of you and
Mr. Short to further explain the FERC language and what--
because I don't want the Committee to go through this process
without fully understanding the necessity on the FERC point.
Mr. Robbins. I think it is critical to understand how the
Endangered Species Act and the Federal Power Act, and the
agencies that are responsible for those, intermingle.
As an example. Section 18 of the Federal Power Act
provides, in the case of anadromous fish, of which, of course,
the Spring Run is one, power to the National Marine Fisheries
Service to provide absolute conditions on our relicensing. And
those conditions can be fairly draconian.
So if we have an experimental fish in the system, under
these kind of conditions, and our licenses are being tagged
with fish passage issues that could cost millions of dollars or
tens of thousands or 100,000 acres of water to support cold
water in the summertime while we look at this experience, then
the Federal Power Act would end up trumping whatever protection
we got under ESA.
So in order for the ESA protection to mean anything then in
the hydro projects, it has also got to have that protection. We
are not asking for a complete pass; we are just saying reserve
it. And at the end of the experiment, to the extent we need to
make adjustments for Spring Run, we will do that.
Ironically, and I do need to clarify this, it is not just
Section 18, but believe it or not, the Section 10[j] of the
Federal Power Act, as well. Now, that is different than 10[j]
of the ESA, so as we go forward we will talk about those more.
Mr. Radanovich. Thank you. Mr. Cardoza, you are out of
time. You can come back if you want.
Mr. Nunes.
Mr. Nunes. Thank you, Mr. Chairman. I would like to ask
maybe the--I know that Mr. Birmingham is a lawyer, and I think
Mr. Robbins is a lawyer, I am not sure. Are there any other
lawyers up there?
I would like to discuss, would this settlement, in your
opinion, what really happens in terms of future litigation on
the Friant water users? And I would have liked to ask this
question of Mr. Upton, but we didn't have time. But, you know,
what still hangs out there under this current agreement?
I guess we will start with Mr. Birmingham.
Mr. Birmingham. Well, the reality, Mr. Nunes, is that this
settlement agreement and the legislation authorizing
implementation of the settlement agreement would resolve the
claims brought in the United States District Court for the
Eastern District of California by the Natural Resources Defense
Council and other entities against the Secretary of the
Interior in connection with his operation of Friant Dam. And an
alleged violation of Section 5937 of the Fish and Game Code.
The implementation of this legislation in the settlement
would not prevent anyone else from walking down to the San
Joaquin River, wetting a fishing line, establishing standing,
and then bringing another action next week, or the week after
this legislation is signed, another action under Section 5937
of the Fish and Game Code.
Now, there is a simple amendment that could be offered to
address that. Congress has the ability, the authority to
prescribe the jurisdiction of United States District Courts.
And in order to sue the United States, it has to be in District
Court.
To provide greater certainty concerning the commitment to
the settlement--and all of the settling parties have said we
are committed to this settlement. Well, to provide greater
certainty, one thing that could be done would be to amend the
Restoration Settlement Act to provide that except as to enforce
the terms of this settlement, the United States District Court
is deprived of jurisdiction to entertain any claim brought
against the United States related to Section 5937 of the
California Fish and Game Code, as it relates to the Bureau of
Reclamations' operation of Friant Dam. That would make sure
that, at least during the pendency of this settlement, no one
else would be able to come into District Court and upset it by
filing another 5937 loss.
Mr. Nunes. That would protect Friant in the future.
Mr. Birmingham. Yes, it would.
Mr. Nunes. Mr. Robbins, do you agree with that?
Mr. Robbins. I do. But I also think there is another
outstanding issue.
Without the environmental protections we have been talking
about from ESA, it is my opinion that Friant has some, the area
has some exposure to these same issues. For instance,
notwithstanding the fact that the flow caps are in place, this
is a settlement of a fish and game proceeding. It is not a
settlement of ESA proceedings particularly.
Now, I do know that the parties consider and have the
opinion that the biological opinions that they have been able
to put together suggest that they can have a successful
experiment. But what happens if this fishery is reintroduced
into the Upper San Joaquin, and that doesn't happen; and now
new parties are filling these seats that don't have this kind
of recollection, and under the Endangered Species Act simply
take a look at what that Federal project is doing, and suggest
more waters taken?
There is not a guarantee that the Endangered Species Act
won't trump these caps at some point in the future. And that,
in the absence of the 10[j] protection and of the 4[d]
protection we have been talking about, I think that they are
potentially exposed, as well.
Mr. Nunes. In relation to, there were some questions on the
first panel about third-party impacts in terms of Delta
pumping. And maybe this is a good question for both of you
again.
Ms. Napolitano, I wish she was here, but there was a
question about, you know, how does it impact Southern
California. And Tom, or Mr. Birmingham and Mr. Robbins, could
you answer that real quickly, in our one minute that we have
here?
Mr. Birmingham. Yes, Mr. Nunes. There are two potential
impacts. One is a detriment, one is a benefit.
Now, theoretically there are some water quality
improvements that will result from the implementation of this
settlement. However, in terms of complying with the water
quality objectives established by the State of California for
the protection of beneficial uses of that water, the benefits
derived from the settlement in terms of water quality
improvement in the Delta are marginal, very marginal. And I
could explain the reasons for that.
In terms of water supply, unless there is some Endangered
Species Act protection in the Delta, if the Spring Run that are
expected to be reintroduced show up at the Harvey O. Banks
pumping plant, there will be limitations imposed on the pumping
rates, and there would be a water supply reduction for all
state contractors.
And I note that in this proceeding, there is no
representative of any state contractor, but there are potential
effects on the State Water Project.
Mr. Nunes. Thank you. And thank you, Mr. Chairman. I know
my time is up.
Mr. Radanovich. Thank you, Mr. Nunes. And we are wrapping
up this hearing. So if there are no other questions.
Mr. Nunes. Well, I do have one more.
Mr. Radanovich. If you can be brief, sure.
Mr. Nunes. OK. And I thought Mr. Cardoza was going to--let
me just, let me throw this out there, in terms of the
settlement requires legislation to provide the Secretary the
authority to proceed. If the parties were to return to court,
what are the boundaries of the judge's authority without
Congressional authorization?
This is just an example. If the judge mandated the release
of 500,000 acre-feet of water, then how is this accomplished if
the downstream improvements require Congressional
authorization? Mr. Birmingham.
Mr. Birmingham. Well, I have not done extensive legal
research on the question, but I think Mr. Upton himself alluded
to the answer to this.
The judge has said to the parties the tools that I have are
very blunt. And as an example, I can't imagine a circumstance
under which a court is going to order the release of water if
it is going to result in flooding. The District Court does not
have the power, the judicial power, to order the Secretary of
the Interior to undertake an action that the Secretary doesn't
have statutory authority to implement.
And so it is really unclear what the court could do. The
court could not order the Secretary of Commerce to reintroduce
Spring Run into this river. That would be an exercise of
discretion, and the case law is very clear that a District
Court does not have the authority to describe to a member of
the Executive Branch how to exercise discretion.
So there are lots of things that aren't being undertaken in
connection with the settlement that the District Court simply
has no power to impose as part of a judgment.
Mr. Nunes. Mr. Robbins.
Mr. Robbins. Yes. It is hard for me to imagine that the
judge would be ordering flows into a system that wouldn't in
fact accomplish the goal. This settlement has to do with a Fish
and Game settlement intending to put water below the Friant Dam
in sufficient quantities to have a healthy fishery, which would
include Spring Run.
Without the intentional reintroduction of Spring Run--and
again, I would echo Mr. Birmingham's indication that we don't
believe the judge has the authority to order the Secretary to
do the reintroduction--what you would get is a lot of water
going down the wasteway during the summertime and during the
fall and spring post-flows. Some fish probably. We don't have a
clue as to how. You would have a whole lot of damage to the
landowners, to the levee systems. Nothing the judge would do
would take out their potential Court of Claims proceedings.
However, I have, during my 30-year career, been wrong on
more than one occasion of what I think a Federal judge's power
is. And so I would suggest to you that this particular Federal
judge might do just exactly what we have been talking about.
Mr. Nunes. Thank you. Just to clarify--and I want to ask
the lawyers this question, also--this is really a precedent-
setting action that the parties have come and asked the
Congress to do this. And there was a comparison earlier to the
agreement down in Southern California dealing with Indian
Tribes.
This is much different than that. And I would like both of
your takes on the precedent that this sets, that this sets
bringing it to Congress asking Congress how to act, and how it
compares to the example that was given earlier.
Mr. Birmingham. In responding to these questions, I don't
want to create the impression among any of the people listening
that the Westlands Water District is opposed to this
settlement. I think, as Mr. Cardoza indicated, it is critical
that we examine these issues, so we can make sure we know how
it is going to be implemented.
The reference was made by Mr. Candee to the Torres-Martinez
Settlement Act. And he said that was comparable to what is
being done here. That involved an authorization to settle
pending litigation, and the total amount of the settlement was
$14 million, $10 million of which was going to come from the
government.
I am informed by one of our lawyers who was actually
involved in those negotiations and the settlement that that
was, a Member of Congress was involved in the negotiation, and
actually was involved in the drafting of the legislation. Here,
the legislation has come to Congress as an exhibit to the
settlement.
In that case, it took a number of Congresses to approve the
settlement because of concerns that had been raised by a
particular senator from the State of Nevada. And so Mr. Candee
is right in a technical sense; there Congress authorized the
implementation of a settlement. But that settlement was
fundamentally different than this settlement, where, number
one, you are being asked to authorize a program the costs of
which are uncertain, the effects of which are uncertain. And so
there are, I think, some fundamental differences.
Mr. Nunes. Thank you, Mr. Birmingham. Thank you, Mr.
Chairman.
Mr. Radanovich. The Chair is reducing the time to two
minutes per round. Mr. Cardoza.
Mr. Cardoza. Yes. I would like to follow up and allow Mr.
Short to answer the question I asked previously with regard to
the FERC reauthorization challenge.
Mr. Short. Thank you, Congressman. I don't have much more
to say. Ken, I think Ken outlined the procedural process fairly
clearly. And that is on point. I think his answer was just
fine.
My only concern about the FERC issue, as I have indicated
before, is that we don't get hit twice: once during this
process, and then again during our relicensing process, for an
experimental amount of fish population. It just doesn't make
sense.
Mr. Nunes. Thank you.
Mr. Radanovich. Mr. Costa.
Mr. Costa. Thank you, Mr. Chairman. Mr. Birmingham, as it
relates to the Federal contractors, do you have any belief that
the recirculation effort under the settlement will impact your
ability to continue to allocate your water for the Westlands
Water District?
Mr. Birmingham. The simple answer is that it could. Because
the settlement agreement and the legislation authorizing
implementation direct the implementation of a recapture and
recirculation program.
And by itself, that could be interpreted as meaning that
the Secretary of the Interior should displace existing uses of
Tracy Pumping Plant in order to fulfill or to accomplish the
water supply goals of the settlement agreement.
Now, I have been told repeatedly by the settling parties
that that is not their----
Mr. Costa. It is not the intent, right.
Mr. Birmingham. And they have been very, very gracious in
saying let us put language in the settlement, or excuse me,
authorizing legislation that says that this recirculation will
not displace existing uses. And we proposed that as an
amendment.
Mr. Costa. And that should be included in some fashion, it
seems to me, because of the potential impact. And I would
believe that, as point of fact, that it also potentially could
impact state contractors, as well. And I am very concerned
about that point as well, and I think there ought to be
consideration taken into account for state water contractors
that share the same plumbing system in the Delta.
Mr. Birmingham. My understanding from the Department of
Water Resources in the State of California is they have raised
this issue in connection with the ongoing discussions
concerning potential amendments, because that is a potential
impact on the state contractors as well.
Mr. Costa. I want to make one final point, but first I want
to commend Ms. Skinner, who I have had the pleasure to work
with over the years and know of her family's active involvement
in California agriculture for generations. And you are a great
spokesperson always, and I think the passion and the detail
that you shared with the Committee today is very important for
the purpose of dealing with the issues for those farmers who
are impacted in Mr. Cardoza's district.
The point I want to make is the following. The Chairman has
admonished us that he wants to get the Committee concluded so
that you can go back to the table and work on the efforts as it
relates to the third-party agreements and the language you are
trying to work out.
I want you to do that, too. And I think we all are very
much interested in implementing this agreement for all the
right reasons. We have all stated that. I, too, share that, and
I want you to do your very best in your efforts, including Mr.
Hal Candee and the environmental groups that he represents.
But let me tell you, Mr. Chairman, and I have suggested
this to the Chairman of the Policy Committee as well, that my
view is, in terms of where I am coming from--and I can't speak
obviously for any other Member--is that if you don't reach an
agreement as it relates to the third-party impacts, whether it
is this afternoon or tomorrow or whatever remaining time that
you are allowed to reach an agreement, I believe it will then
be incumbent to do everything I can do, and hopefully with my
colleagues, to write third-party protections into the law.
So I think the challenge is this, in my view. You guys work
it out, Mr. Candee and company and with the others. We are
going to, I am going to try to do everything I can to make sure
that it is worked out for the satisfaction of those impacts
that I have outlined in my letter, and that has been submitted
to the record.
Thank you very much, Mr. Chairman.
Mr. Radanovich. Thank you, Mr. Costa. Any other questions?
Mr. Cardoza. I would just like to associate myself with Mr.
Costa's remarks.
Mr. Radanovich. When do you go back to the table? This
afternoon, like right now?
Mr. Chedester. Half an hour.
Mr. Radanovich. All right. Ladies and gentlemen, thank you
for your testimony. It was very valuable to the issue. And let
us get back to work and get this job done.
Thank you.
[Whereupon, at 2:37 p.m., the Subcommittee was adjourned.]