[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

                               __________

           Printed for the use of the Committee on Resources



  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
                               index.html
                                   or
         Committee address: http://resourcescommittee.house.gov


                    U.S. GOVERNMENT PRINTING OFFICE
30-100                      WASHINGTON : 2006
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092250 Mail: Stop SSOP, Washington, DC 20402ï¿½090001

                         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.]

                                 
