[Senate Hearing 111-339]
[From the U.S. Government Publishing Office]
S. Hrg. 111-339
MISCELLANEOUS WATER BILLS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
ON
S. 1757
S. 1758
S. 1759
__________
NOVEMBER 5, 2009
Printed for the use of the
Committee on Energy and Natural Resources
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55-628 WASHINGTON : 2009
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
BYRON L. DORGAN, North Dakota LISA MURKOWSKI, Alaska
RON WYDEN, Oregon RICHARD BURR, North Carolina
TIM JOHNSON, South Dakota JOHN BARRASSO, Wyoming
MARY L. LANDRIEU, Louisiana SAM BROWNBACK, Kansas
MARIA CANTWELL, Washington JAMES E. RISCH, Idaho
ROBERT MENENDEZ, New Jersey JOHN McCAIN, Arizona
BLANCHE L. LINCOLN, Arkansas ROBERT F. BENNETT, Utah
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
EVAN BAYH, Indiana JEFF SESSIONS, Alabama
DEBBIE STABENOW, Michigan BOB CORKER, Tennessee
MARK UDALL, Colorado
JEANNE SHAHEEN, New Hampshire
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
McKie Campbell, Republican Staff Director
Karen K. Billups, Republican Chief Counsel
------
Subcommittee on Water and Power
DEBBIE STABENOW, Michigan Chairman
BYRON L. DORGAN, North Dakota SAM BROWNBACK, Kansas
TIM JOHNSON, South Dakota JAMES E. RISCH, Idaho
MARIA CANTWELL, Washington JOHN McCAIN, ARIZONA
BLANCHE L. LINCOLN, Arkansas ROBERT F. BENNETT, Utah
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
EVAN BAYH, Indiana JEFF SESSIONS, Alabama
JEANNE SHAHEEN, New Hampshire
Jeff Bingaman and Lisa Murkowski are Ex Officio Members of the
Subcommittee
C O N T E N T S
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STATEMENTS
Page
Bennett, Hon. Robert F., U.S. Senator From Utah.................. 8
Boxer, Hon. Barbara, U.S. Senator From California................ 6
Candee, Hamilton, Altshuler Berzon LLP, Representing Grassland
Water District, San Francisco, CA.............................. 29
Connor, Michael L., Commissioner, Bureau of Reclamation,
Department of the Interior..................................... 11
Feinstein, Hon. Dianne, U.S. Senator From California............. 3
McIntyre, Martin R., General Manager, San Luis Water District,
Los Banos, CA.................................................. 20
Stabenow, Hon. Debbie, U.S. Senator From Michigan................ 1
APPENDIXES
Appendix I
Responses to additional questions................................ 41
Appendix II
Additional material submitted for the record..................... 55
MISCELLANEOUS WATER BILLS
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THURSDAY, NOVEMBER 5, 2009
U.S. Senate,
Subcommittee on Water and Power,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 2:35 p.m. in
room SD-366, Dirksen Senate Office Building, Hon. Debbie
Stabenow presiding.
OPENING STATEMENT OF HON. DEBBIE STABENOW, U.S. SENATOR FROM
MICHIGAN
Senator Stabenow. It's my pleasure to call the subcommittee
to order. Our Ranking Member Senator Bennett will be joining us
right now. Welcome. That's wonderful. That was great timing.
Senator Bennett. Thank you.
Senator Stabenow. Some great timing. It's my pleasure to
welcome everyone to the hearing today. We have 3 separate bills
pending before the subcommittee.
Senator Bennett is here as our ranking member. We'll hear
about 2 bills that he is sponsoring. In addition we're very
pleased to have Senator Feinstein, Senator Boxer here with us
today, who have introduced a bill and will speak to the
committee about that bill as well.
Our bills today cover several different subjects in the
area of water resources management.
S. 1757 introduced by Senator Bennett will allow the
prepayment of amounts due to repay the United States for
construction costs relating to a portion of the central Utah
project.
A second bill is Senator Bennett's and Senator Hatch's will
reallocate certain costs associated with the development of
hydroelectric power within the Bonneville unit of the central
Utah project.
S. 1759 introduced by Senator Feinstein and Senator Boxer
relating to transfers of water between water contractors within
the Central Valley project in California.
So we look forward to your testimony. I now turn it over to
Senator Bennett for his comments.
Senator Bennett. Thank you, Madame Chairman. I will
withhold, in deference to our 2 colleagues who are here. Let
them talk about their bills first, or their bill. Then I'll
launch into the fascinating description of the intricacies of
the Central Utah project after they're through.
Senator Stabenow. Alright. We will take that. We're pleased
to have Senator McCain here as well. If you had a brief opening
comment, we would welcome that as well.
Senator McCain. No, Madame Chairman. I thank you for having
this hearing. I thank our witnesses.
This is a real emergency crisis in California of
proportions the likes of which we have not seen in that State.
Arizona and California share many challenges and water is one
of them. This situation argues for action as quickly as
possible.
I thank you for holding the hearing. I appreciate the
witnesses, all of them, being here today.
Senator Stabenow. Thank you. Let's begin with Senator
Feinstein. Welcome.
[The prepared statement of Mr. Costa follows:]
Prepared Statement of Hon. Jim Costa, U.S. Representative From
California, on S. 1759
On October 7, 2009, I joined with Congressman Cardoza in the House
of Representatives and Senators Feinstein and Boxer in the Senate to
introduce the ``Water Transfer Facilitation Act of 2009.'' This
legislation builds upon and makes permanent the language that we passed
in the Energy and Water Appropriations bill, which was originally
limited to only two years. The Water Transfer Facilitation Act of 2009
is one step in a host of efforts to bring more water to the San Joaquin
Valley amidst of a three-year drought and ongoing water crisis. Given
the severity of California's water crisis and the need for short-term
solutions to prepare for the coming growing season., I thank Chairwoman
Stabenow for moving quickly to hold this hearing and I am pleased to
participate by submitting this testimony today.
The immediate impacts of the Delta smelt biological opinion have
directly contributed to the devastation of the Westside of the San
Joaquin Valley in my Congressional District. Water supply reductions
coupled with an economic downturn has led to overwhelming unemployment
in Valley cities, reaching as high as 30% and 40%. With tens of
thousands of jobs lost and approximately 500,000 acres of some of our
nation's most productive farmland fallowed, the Westside has been
absolutely devastated. Given that this region supplies the nation with
nearly half of its fresh fruits and vegetables, this is a cris that not
only threatens our local communities, but also the security of our
nation's food supply. Of equal concern to the farmers and farmworkers
in the San Joaquin Valley is the shadow of the salmon, green sturgeon
and steelhead biological opinion that will reduce future water
deliveries, and the livelihood they depend on.
This legislation is intended as a critical lifeline to reduce
unnecessary delays in water transfers at a time when San Joaquin Valley
farmers have been hardest hit by water supply reductions due to both
changes in hydrology and regulatory restrictions. It would allow for
new water transfers of an estimated 250,000 to 300,000 acre-feet of
water per year, depending on the water year. The bill would grant the
Bureau of Reclamation the authority to approve voluntary water
transfers between sellers and buyers within the Valley. It would also
streamline environmental reviews for water transfers by ensuring that
they occur on a programmatic basis, instead of the current project-by-
project basis.
Transferring water between aand within counties is a vital tool for
water districts and indivudal farmers during periods of drought. While
I have consistently maintained that the best solution would be to have
the federal and state pumps fully operational, the inflexibility of the
Endangered Species Act has left us with limited solutions until it can
be successfully modified. This legislation makes permanent the ability
to transfer water to our Valley's farms when it is most needed,
therefore providing our farmers with interim solutions and allowing
them to continue to grow crops and support our local economy. More will
need to be done to protect the Valley's water on a short, mid, and
long-term basis, and I will continue that fight.
------
STATEMENT OF HON. DIANNE FEINSTEIN, U.S. SENATOR
FROM CALIFORNIA
Senator Feinstein. Thank you very much. I appreciate being
able to do this promptly as does Senator Boxer because I have
to chair Intelligence at 3. I know she has commitments as well.
So thank you very much.
Senator Bennett, good to see you again and Senator McCain
as well.
The bill, this bill which is co-sponsored by Senator Boxer
would facilitate additional water transfers of up to 250,000 to
300,000 acre feet in California's Central Valley which has been
particularly hard hit by prolonged drought. It does so by
granting new authority to the Bureau of Reclamation to approve
voluntary water transfers. By simplifying and expediting
environmental reviews for Central Valley water transfers.
I think this is a reasonable and timely way to mitigate the
most important impacts of a water crisis in California.
California is in its third year of a prolonged drought
primarily caused by depleted seasonal rainfalls. Right now key
supply reservoirs are at 42 percent of capacity. The forecast
for next year's runoff are very uncertain and not good.
At the same time restrictions have been put in place that
limit how much water can be sent south through the Sacramento-
San Joaquin delta pumps because of concerns about endangered
and threatened species in the delta. This summer agricultural
users on the west side of the San Joaquin Valley, these are the
most junior water rights holders, received only 10 percent of
their allocation from the Federal Central Valley project.
That's the lowest ever in history.
This week California legislators finally approved a viable
water bond and a package of bills to address the water
infrastructure problems of the State. Now that's a
breakthrough. But it's going to take time. But the valley can't
wait for a long term solution.
The one thing we can do and I think without litigation or
harassment in the short term is to facilitate voluntary water
transfers. Moving water from those regions in the valley,
generally the east side that have extra water to those that
need it most, namely the west side. This past summer some water
users in the San Joaquin Valley received their full allocation
of Federal water while others, particularly those on the west
side, had to fallow fields and cut down trees because there
wasn't enough water to sustain crops.
Westlands Water District for example, comprises more than a
half a million acres of some of the most productive farmland in
the country. But more than half, 220,000 acres were fallowed
last summer. To date, the Bureau of Reclamation has authorized
transfers of 600,000 acre feet of water around the Central
Valley.
But more could have been available had the agency developed
a more efficient process for considering and improving
voluntary transfers. That's what this bill would do. There are
3 key parts.
The first would provide new authority for the Bureau to
permit San Joaquin Valley water transfers. It removes 2
restrictions from the CVPIA, California Valley Project
Improvement Act, for transfers of water. Those restrictions
unnecessarily limit the amount of water people can transfer
even if they were all in the San Joaquin Valley or within the
same division of project contractors.
This legislation eliminates those obstacles and allows
those transfers to occur. So that water can be moved back and
forth based on need, provided all other conditions of the CVPIA
and other environmental laws, are met. These conditions are
already waived for transfers within the same watershed. The
Bureau estimates that this first provision could make up to
100,000 to 150,000 acre feet of water available for transfer.
The second key provision directs Interior to facilitate
transfers throughout the Central Valley by doing programmatic
environmental review rather than individual review on each
transfer which only holds everything up. If you can evaluate it
environmentally as a program, that makes the best sense. This
past year the process was so complicated and uncertain that
many water users just simply didn't apply for transfers. We
need to ensure that willing sellers are not kept from willing
buyers by red tape.
The Bureau has already committed to address this. And this
bill ensures that it does so expeditiously without waving any
environmental laws. Water users and Reclamation estimate that
this provision could facilitate up to 150 to 200,000 acre feet
of transfers a year.
The third and final provision requires the Department to
make recommendations on how to facilitate future water
transfers more efficiently and expeditiously.
Now I know that transfers alone cannot provide the entire
solution. They're costly. They're still constrained by pumping
restrictions, State law and the very real limits of our water
supply infrastructure.
Yet, I really believe this legislation will provide much
needed help at a time of great hardship and controversy. It is
supported by many water users including and I'd ask that these
letters, Madame Chairman, be put in the record.
Senator Stabenow. Without objection.
Senator Feinstein. The San Luis Water District, The Conaway
Preservation Group, The Westlands Water District, Reclamation
District 2035 out of Woodland, California, The Association of
California Water Agencies, The San Joaquin River Exchange
Contractors, The San Luis and Delta Mendota Water Authority,
The Banta Carbona Irrigation District, The Northern California
Water Association, The Tehama Colusa Canal Authority, Friant
Water Users, which is a main source of water transfer, Glen
Colusa Irrigation District and 2 page letter, again Friant.
So if those could go in the record I would appreciate it
very much.
Senator Stabenow. Without objection.
Senator Feinstein. Now, just to conclude this is, in my
view, after spending a great deal of time on this and other
areas of water in California the most prudent thing we can do
to handle a problem that may be more exacerbated next year.
It's viable. It's voluntary transfers. It's from people who
have enough water who are willing to transfer it to those who
do not.
So there should be no objection to this legislation as a
very practical kind of no nonsense way to facilitate water use
in a valley that's really hard pressed as Senator McCain
correctly stated.
[The prepared statement of Senator Feinstein follows:]
Prepared Statement of Hon. Dianne Feinstein, U.S. Senator From
California
Chairman Stabenow, Senator Bennett and Members of the Subcommittee,
let me thank you for holding a hearing on the ``Water Transfer
Facilitation Act.''
This bill, which is cosponsored by Senator Boxer, would facilitate
additional water transfers of up to 250,000 to 300,000 acre-feet in
California's Central Valley--which has been particularly hard hit by
the prolonged drought. It does so by granting new authority to the
Bureau of Reclamation to approve voluntary water transfers, and by
simplifying and expediting environmental reviews for all Central Valley
water transfers.
I believe that this is a reasonable and timely way to mitigate the
most urgent impacts of the water crisis in California. And I appreciate
the opportunity to brief you on this critical bill.
the present water shortage
California is in the third year of a prolonged drought, primarily
caused by depleted seasonal rainfalls. Right now, key supply reservoirs
are at only 69 percent of average and 42 percent of capacity. And the
forecasts for next year's runoff are very uncertain.
At the same time, restrictions have been put in place that limit
how much water can be sent south through the Sacrament-San Joaquin
Delta pumps, because of concerns about endangered and threatened
species.
This summer, agricultural users on the west side of the San Joaquin
Valley--the most junior water rights holders--received only 10 percent
of their allocation from the federal Central Valley Project, the lowest
ever.
This week, California legislators finally approved a viable water
bond and a package of bills to address California's water
infrastructure problems. This was a major breakthrough. But the Valley
can't wait for a long-term solution--they need help now.
water transfers can help
One thing we can do to help in the short-term is facilitate
voluntary water transfers, moving water from those regions in the
Valley that have extra water to those that need it most.
This past summer, some water users in the San Joaquin Valley
received their full allocation of federal water, while others,
particularly those on the Westside, had to fallow fields and cut down
trees because there wasn't enough water to sustain crops. Westlands
Water District, for example, comprises more than 500,000 acres of some
of the most productive farmland in the country, but more than 220,000
acres were fallowed last summer.
To date, the Bureau of Reclamation has authorized transfers of
600,000 acre-feet of water around the Central Valley--but more could
have been available had the agency developed a more efficient process
for considering and approving transfers.
And that's exactly what this bill would do.
waiving restrictions
There are 3 key parts to the legislation.
The first provision would provide new authority for the Bureau of
Reclamation to permit San Joaquin Valley water transfers. It removes 2
restrictions from the Central Valley Project Improvement Act for
transfers of water. Those restrictions unnecessarily limited the amount
of water people could transfer even if they were all in the San Joaquin
Valley, or within the same Division of project contractors.
This legislation eliminates those obstacles, and allows these
transfers to occur, provided all the other conditions in the Central
Valley Project Improvement Act and other environmental laws are met.
These conditions are already waived for transfers within the same
watershed.
The Bureau of Reclamation estimates that this first provision could
make up to 100,000 or 150,000 acre-feet of water available for
transfer.
expediting and streamlining environmental review
The second key provision directs Interior to facilitate transfers
throughout the Central-Valley by doing programmatic environmental
review, rather than individual review on each transfer (as is current
practice).
This past year, the process was so complicated and uncertain that
many water users didn't apply for transfers. We need to ensure that
willing sellers are not kept from willing buyers by red tape. The
Bureau has already committed to address this. This bill ensures that it
does so expeditiously without waiving any environmental laws.
Water users and Reclamation estimate that this provision could
facilitate up to 150,000 or 200,000 acre-feet of transfers each year.
The third and final provision requires the Department to make
recommendations on how to facilitate future water transfers more
efficiently and expeditiously.
conclusion
I know that transfers alone cannot provide the entire solution--
they are costly, and they are still constrained by pumping
restrictions, state law, and the very real limits of our water supply
infrastructure.
Yet I believe this legislation will provide some much needed help
at a time of great hardship and controversy. It is supported by many
water users--and I ask that their letters of support be included in the
record. I recognize that some Valley stakeholders have concerns about
specific language, but I am confident that we can resolve these issues
by working together.
In the meantime, I will continue to work on additional short-term
and long-term solutions, and I look forward to working with the
Committee on them.
Again, I thank the Chair and the Members of the Subcommittee for
devoting their time this afternoon to considering this legislation.
Thank you.
Senator Stabenow. Thank you very much, Senator Feinstein. I
know this is an extremely serious issue.
Senator Feinstein. Thank you.
Senator Stabenow. Welcome Senator Boxer.
STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR
FROM CALIFORNIA
Senator Boxer. Thank you so much, Madame Chairman. Thank
you very much, Senator Bennett, Senator McCain, for being here.
Yes, this bill S. 1759 is called the Water Transfers
Facilitation Act of 2009. I'll try not to be repetitive. My
colleague was very clear on what this does. Simply put Senator
Feinstein and I have introduced this legislation to facilitate
voluntary water transfers within the San Joaquin Valley.
Friends, this is about getting water where it is needed,
when it is needed. It is common sense. It's about finding ways
we can all come together to find pragmatic solutions to the
crisis of the drought rather than everyone just going into
their corners.
I want to point out that anyone who knows the history of
California knows that when it comes to water people tend to go
to their corners. We're trying to break through. In that regard
I wanted to show some bipartisan support.
I can assure you that Senator Feinstein, the letters that
you put in there, some of those individuals signing those are
Republicans, some are Democrat, some are independent. We have a
letter here today to both of us from Senator, from, I'm sorry,
Governor Arnold Schwarzenegger writing to express his support
for our bill. So we feel really good about this.
We feel this isn't the be all and end all. But this is a
very good step. Three years of below average precipitation have
restricted water supplies.
We know in agricultural communities in the San Joaquin
Valley, where more than 500,000 acres of crop land have been
fallowed, there's an economic struggle going on. And that's why
we're moving and hopefully swiftly. We're deeply concerned
about the crisis and the impacts of it.
This legislation, as we said, will facilitate these water
transfers among some of the water users. You heard about some
of them.
It will improve flexibility in water management.
It will provide water to those communities who need it
most.
I want to thank Representatives Cardoza and Costa. They
worked with us to include a measure in the Energy and Water
Appropriations bill that temporarily allowed these voluntary
water transfers between water users on the east and west side
of the San Joaquin Valley. This provision became law last week.
All of the affected water districts negotiated and
supported that amendment. Again, that's unusual. I'm very
pleased.
In addition to being so grateful to my colleague, I am so
grateful to Senator Bingaman. He worked with us on that
amendment. He committed to hold these prompt hearings. Madame
Chairman, you were so gracious to set it at a time that we
could both be here.
This bill builds upon the provisions that we got in there
for 2 years. It would make it permanent. The water users on the
east and west sides of the valley, again, have written very,
very strong letters that Senator Feinstein has put in the
record. The Governor has, and as Senator Feinstein has stated,
this is signaling kind of new day for us. We've had some
breakthroughs in the legislature in California.
Farmers who have excess amounts of water now have to fallow
their fields in order to transfer water to other farmers. Our
legislation would provide flexibility to move water around the
valley. The bill directs, as you heard, the Department of the
Interior to use a more pragmatic approach to environmental
review so that all the transfers will still have to undergo
applicable reviews, but they'll be conducted in a more
efficient and timely fashion.
I want to close just by reiterating that the Bureau of
Reclamation has told us in writing through email that the
Feinstein/Boxer legislation will transfer as much as 250,000 to
300,000 acre feet of water per year to communities in need.
This is 130 to 150 percent more water than the west side got
from the Federal water project last year. To put this amount
into perspective 300,000 acre feet of water would serve 600,000
typical families for 1 year. So this is not a trivial transfer.
I am committed to working with the committee, the
Administration, my colleagues and all of our stakeholders to
advance this bill. I can't thank you enough, both of you. I
feel, we feel, so strongly that this would send such a good
signal to our people back home that we're thinking about them
and we're going to take moves to ease their problems.
Thank you very much.
[The prepared statement of Senator Boxer follows:]
Prepared Statement of Hon. Barbara Boxer, U.S. Senator From California
Madam Chairman, thank you for holding this hearing today to discuss
S. 1759, the Water Transfers Facilitation Act of 2009. Senator
Feinstein and I have introduced this legislation to facilitate
voluntary water transfers within the San Joaquin Valley.
This is about getting water where it's needed, when it's needed.
It's about finding ways we can all come together to find pragmatic
solutions to the water crisis, rather than everyone just going to their
corners.
Three years of below-average precipitation have restricted water
supplies for much of California. Drought conditions have particularly
affected agricultural communities in the San Joaquin Valley, where more
than 500,000 acres of cropland have been fallowed, further compounding
existing economic struggles in this region.
I am deeply concerned about this crisis and the impact it is having
on agricultural communities in the San Joaquin Valley. That's why
Senator Feinstein and I joined to introduce the Water Transfers
Facilitation Act of 2009. This legislation will facilitate voluntary
water transfers among some water users in the San Joaquin Valley,
improving flexibility in water management and providing water to those
communities who need it most.
Senator Feinstein and I worked with Representatives Cardoza and
Costa to include a measure in the Energy and Water appropriations bill
that temporarily allowed voluntary water transfers between water users
on the east and west sides of the San Joaquin Valley. This provision
became law last week. All of the affected water districts negotiated
and supported that amendment, and I am very pleased.
I am grateful to Senator Bingaman for not only working with us on
that amendment but also for committing to hold prompt hearings on
permanent legislation building upon that successful amendment. The
Feinstein-Boxer Water Transfers Facilitation Act of 2009 permanently
extends and builds upon the provisions in the 2-year Energy and Water
appropriations amendment.
The water users on the east and west sides of the valley who will
benefit from this legislation have written many strong letters of
support for the Feinstein-Boxer bill, as has the Governor of
California, and I ask unanimous consent that these letters be entered
into the record.
Now, farmers who have excess amounts of water need to fallow their
productive fields in order to transfer water to other farmers
experiencing shortages. Our legislation provides more flexibility to
move water around the valley.
The bill also directs the Department of the Interior to use a more
pragmatic approach to environmental review for water transfers so that
appropriate transfers can be approved more quickly. Transfers will
still have to undergo all applicable reviews, but those will be
conducted in a more efficient and timely way.
Finally, the legislation requires the Department of the Interior to
prepare a report and submit recommendations on how to facilitate water
transfers throughout California, including between the state and
federal water projects. This will guide future efforts to improve the
flexibility of water management statewide.
The Bureau of Reclamation has told us that the Feinstein-Boxer
legislation will transfer as much as 250,000 to 300,000 acre-feet of
water per year to communities in need. This is 130 to 150 percent more
water than the west side got from the federal water project last year.
To put this amount into perspective, 300,000 acre-feet of water would
serve 600,000 typical families for one year.
I am committed to working with the Committee, the Administration,
and our stakeholders to advance the Water Transfer Facilitation Act of
2009. I thank the Committee for considering this important legislation,
and look forward to working with my colleagues to secure its passage
through the Senate.
Senator Stabenow. Thank you, Senator Boxer. I look forward
to working with Senator Bennett, with Chairman Bingaman as we
move forward on this legislation. I know this is a crisis for
California as well as surrounding areas.
So we thank you for your leadership on this important
issue.
Senator Boxer. Thank you. Thank you.
Senator Stabenow. Given the time I know that both of you
need to be excused. So we appreciate your coming and your
testimony. Before moving on to Mike Connor, the Commissioner of
Reclamation, I'd like to turn now to Senator Bennett to speak
about the 2 bills that he's sponsoring before the committee.
STATEMENT OF HON. ROBERT F. BENNETT, U.S. SENATOR FROM UTAH
Senator Bennett. Thank you very much, Madame Chairman.
S. 1757 grants prepayment authority to the Uintah Water
Conservancy District for its contract with the U.S. Bureau of
Reclamation for construction of the Jensen unit of the Central
Utah project. Those that are familiar with Utah names will
recognize all of those. Others will find them completely new.
But the Jensen unit provides municipal, industrial and
irrigation water to the city of Vernal and surrounding areas.
It's been, it was completed in the 1980s. Now in the 1980s we
had the bust side of the boom and bust cycle in energy prices
and exploration.
There's a lot of energy in the Uintah basin where Vernal
is. We were in the bust. The conservancy district amended their
agreement with the Bureau to reduce the amount of subscribed
water.
Now we've gotten into the boom side when the price of oil
went back up. The Uintah basin has seen unprecedented growth in
energy development industry. That means an increased demand for
municipal and industrial water.
Besides considering completion of the Burns Bench pump
station, the district in this circumstance has re-evaluated its
financial arrangement with the Bureau and decided that it would
be beneficial to pay the remainder of its contract obligations
to the Bureau early. That may be a little different than we
usually hear around here that somebody wants to give the
Federal Government some money.
But S. 157--pardon me, S. 1757 would allow the districts to
prepay the contract by 2019 instead of requiring the payment be
stretched out until 2037. Included in the bill is a requirement
that the district pays the present value of the whole amount
without early repayment. So that keeps the Federal Government
whole on the issue.
It's good for the conservancy district. It's good for the
Federal Government. I would hope it would not be particularly
controversial.
Now the second bill, S. 1758, would indefinitely defer sunk
costs assigned to power generation in the central Utah project.
We would do this because it will allow for economical
development of 50 megawatts of hydropower on the Diamond Forks
system of the Bonneville unit. The Colorado River storage
project allowed for power development and allocated system
costs for repayment and these costs have grown over time and
now make any hydropower facility developed at Diamond Fork $161
million in the hole before any dirt has been turned.
So if we want the power and we do. S. 1758 would
indefinitely defer power allocation costs similarly to the
costs associated with municipal and industrial water which were
deferred and then prepaid in 2005. This is a pattern that we've
seen before. By permanently affixing and deferring system wide
costs that have been allocated for repayment by power features,
hydroelectric power generation at Diamond Forks system can go
ahead and will become economic.
So that is the purpose of the second bill. As I said, I am
sure everybody found that fascinating. But it is important to
the people in Utah. I believe be a good deal for the Federal
Government as well.
Thank you for allowing me to go through that explanation. I
look forward to spending time with our witnesses on all 3 of
these bills, the 2 Utah bills and the California bill.
Senator Stabenow. Thank you, Senator Bennett. Possibly the
prepayment bill could start a trend. I don't know. But we----
Senator Bennett. I'm not holding my breath.
[Laughter.]
[The prepared statement of Senator Bennett follows:]
Prepared Statement of Hon. Robert F. Bennett, U.S. Senator From Utah
Thank you all for being here. It is with great pleasure that
I have the opportunity to act as the ranking member of this
hearing on 2 necessary Utah bills, S. 1757 and S. 1758, and S.
1759, that addresses some of the water challenges faced by
farmers in the Central Valley of California.
S. 1757
S. 1757 grants prepayment authority to the Uintah Water
Conservancy District (UWCD) for its contract with the U.S.
Bureau of Reclamation (BOR) for construction of the Jensen Unit
of the Central Utah Project. The Jensen Unit provides
municipal, industrial, and irrigation water to Vernal and the
surrounding communities and has since its completion in the
1980's.
Due to economic hard times in Uintah County in the mid- to
late `80s, the conservancy district amended their agreement
with the Bureau of Reclamation to reduce the amount of
subscribed water.
Since then, the Uintah Basin has seen unprecedented growth
in the energy development industry and demand has increased for
municipal and industrial (M&I) water from the UWCD. Besides
considering completion of the Burns Bench pump station, the
district has reevaluated its financial arrangement with BOR and
found that it would be beneficial to pay the remainder of its
contract obligations early.
S. 1757 would allow the UWCD to prepay the contract by 2019
instead of requiring the payment until 2037. Included in the
bill, is a requirement that UWCD pays the present value of the
whole amount due without early repayment, thus keeping the
federal government whole.
S. 1757 is good for both the conservancy district and the
federal government. The federal government would receive
payment early and would be kept whole in relation to present
value of the contract obligation, while UWCD would be allowed
to reduce its long-term debt obligations.
S. 1758
S. 1758 would indefinitely defer sunk costs assigned to
power generation in the Central Utah Project, allowing for
economical development of 50 megawatts of hydropower at the
Diamond Fork System of the Bonneville Unit.
The Colorado River Storage Project (CRSP) allowed for power
development and allocated system costs for repayment. These
costs have grown over time and make any hydropower facility
developed at Diamond Fork $161 million in the hole before any
dirt has been turned.
S. 1758 would indefinitely defer power allocation costs,
similarly to costs associated with municipal and industrial
water which were deferred and then prepaid by 2005.
By permanently affixing and deferring system wide costs that
have been allocated for repayment to by power features, hydro
electric power generation at the Diamond Fork System will
become economic.
S. 1759
I appreciate that Senator Feinstein and Senator Boxer are
here with us today.
I recognize all the work that they have undertaken to find
solutions for many of the water challenges that California is
currently facing.
S.1759 seeks to add some flexibility to California's water
system by streamlining the water transfer process and allowing
additional water transfers to occur within the central valley.
Earlier this year, at their request, language was added to
the Energy and Water Appropriations bill, to provide a
temporary fix to allow water to be transferred in Central
Valley of California.
The bill before us today provides additional authority for
these types of transfers to continue.
As we discuss this bill today I look forward to hearing
whether these water shortages are mainly caused by drought, or
if, as we have heard on the Senate Floor several weeks ago,
caused by federal regulations.
Conclusion
Once again, I thank the witnesses for your presence and
thank you, Senator Stabenow, for conducting this hearing. I
look forward to hearing the testimony today.
Senator Stabenow. Thank you very much for your leadership
on these 2 bills.
We welcome Mike Connor, the Commissioner of Reclamation,
who is going to speak about all 3 of the bills that are on our
agenda today. We welcome you, Commissioner Connor. We'd
appreciate if you take 10 minutes to summarize your testimony.
Then we will have a few questions.
Thank you.
STATEMENT OF MICHAEL L. CONNOR, COMMISSIONER, BUREAU OF
RECLAMATION, DEPARTMENT OF THE INTERIOR
Mr. Connor. Thank you. Madame Chairwoman, Senator Bennett,
I'm Mike Connor, Commissioner of the Bureau of Reclamation and
I'm pleased to provide the views of the Department of the
Interior on the 3 bills before the subcommittee today. As you
note I will quickly provide a summary of those 3 bills and I've
submitted my written statements for the record.
The first bill is S. 1757, the Uintah Water District
Repayment legislation mentioned by Senator Bennett. This
legislation would allow for prepayment of the current and
future repayment obligations of the Uintah Water Conservancy
District in Utah. The Department supports S. 1757 and
acknowledges improvements made to the bill since its passage by
the House in September.
The District's current contract from 1992 requires them to
repay about $5.5 million through the year 2037 at the project
interest rate of 3.2 percent with annual payments of about
$226,000. My written statement provides more detail on this
legislation. But in summary, the Department believes that the
proposed legislation will provide for terms favorable to both
the District and the United States and provide flexibility to
address any future situations that could affect the District's
ultimate repayment obligation as determined by a final cost
allocation for the Jensen unit of the CUP.
The second bill is S. 1758, the Bonneville Unit Clean
Hydropower Facilitation Act. S. 1758 would facilitate the
development of hydropower on the Diamond Forks system of the
Utah project pursuant to the Central Utah Project Completion
Act, otherwise known as CUPCA. The provisions of S. 1758
increase the likelihood of private hydropower development by
indefinitely deferring repayment of $161 million in
reimbursable costs that would otherwise have to be repaid by a
private developer of hydropower on the Diamond Forks system.
Current law requires repayment of this $161 million in
costs which were incurred in developing the Diamond Forks
system and allocated to the power generation purposes of the
project. Since S. 1758 would defer responsibility for these
costs it would effectively reduce the cost of private
hydropower development at this site. The Department understands
and appreciates the legislation's goal of facilitating the
development of hydroelectric power on the Diamond Forks system.
Nonetheless, the Administration has serious concerns about
losing the ability to recoup the Federal investment made in
these facilities. The Federal Government may benefit in the
midterm from annual payments from the use of facilities that
would paid if a leasee entered into a lease of power privilege
arrangement as a result of this bill. We acknowledge that.
These payments are estimated at $400,000 a year beginning
the year of the project as completed continuing for the life of
the project. However the long term fiscal implications are
unclear as to how the Federal Government would be whole for the
loss in repayment of the $161 million in sunk costs. We
estimate the loss would amount to approximately $5.3 million a
year for 50 years if hydropower could be developed under the
current law. This concern is consistent with the views
expressed before the House Natural Resources Committee in May
earlier this year.
The last bill I'll speak to is S. 1759, the Water Transfer
Facilitation Act. The Department supports S. 1759 with minor
modifications. The Central Valley of California is experiencing
a third year of drought which has drained the resources of both
the state water project and the Central Valley project.
The prolonged drought coupled with environmental needs in
the California Bay Delta region has created severe hardship
especially to farmers, farm workers and related economies on
the west side of the San Joaquin River Valley. The Department
is cognizant of the need for creativity and flexibility in
meeting the water demands of those served by the Central Valley
project. Particularly during this period in which we are
working toward long term solutions to California's water
crisis.
If enacted S. 1759 will strengthen Reclamation's ability to
facilitate appropriate water transfers. This year in the CVP
Reclamation has facilitated the transfer of over 600,000 acre
feet of water by and among CV contractors as well as users of
the State Water project. This has been a record for Reclamation
since on average there are approximately 250,000 acre feet of
transfers which are processed between the Central Valley
project and the State Water project.
Specifically within the CVP itself Reclamation has approved
a total of 168 individual transfer totaling approximately
435,000 acre feet of Federal contract water. All were
accomplished within the accelerated water transfers program
which are those within the same watersheds and counties. An
additional 9,156 acre feet of water was transferred among
Sacramento Valley contractors using transaction specific
environmental documentation.
Separate from the transfer program Reclamation approved the
delivery of a large volume of water that was rescheduled or
held over in storage from the 2008 water year. This was
approximately 390,000 acre feet of water. As clear from this
year's activity the Department supports facilitating the
transfer of water to areas experiencing shortages.
Reclamation does however have a continued obligation to
ensure that transfers are not detrimental to the operations of
the CVP, do not cause harm to third parties, including tribal
interests and does not create adverse environmental
consequences. To that end if S. 1759 is enacted, Reclamation
will review its procedures and put in place effective and
efficient administrative guidelines to ensure that the water
transfers addressed by the bill can't take place consistent
with other legal obligations that exist within the Central
Valley project. This review will not, however, apply
traditional consumptive use and historic use criteria pursuant
to the terms of the bill.
I would also like to note that S. 1759 may have some
financial implications associated with its provisions. Because
of the adversity of CVP contractors and the many different
scenarios under which water transfers take place. However,
Reclamation would only be able to fully calculate the financial
impacts at the time of the given transfer. An example is
provided in my written statement.
Finally the Department recommends several technical
corrections to the legislation as set forth in my written
remarks. One of these corrections however, has already been
addressed recently in the recently enacted 2010 Energy and
Water Appropriations bill. This concludes my prepared remarks.
I'm happy to answer any questions the Subcommittee may have.
[The prepared statement of Mr. Connor follows:]
Statement of Michael L. Connor, Commissioner, Bureau of Reclamation,
Department of the Interior
s. 1757
Madam Chairwoman and members of the Subcommittee, I am Mike Connor,
Commissioner of the Bureau of Reclamation. Thank you for the
opportunity to provide the Department of the Interior's views on S.
1757. The legislation allows for prepayment of the current and future
repayment contract obligations of the Uintah Water Conservancy District
(District) of the costs allocated to their municipal and industrial
water (M&I) supply on the Jensen Unit of the Central Utah Project (CUP)
and provides that the prepayment must result in the United States
recovering the net present value of all repayment streams that would
have been payable to the United States if S. 1757 were not enacted. S.
1757 would amend current law to change the date of repayment to 2019
from 2037. The legislation would also allow repayment to be provided in
several installments and requires that the repayment be adjusted to
conform to a final cost allocation. The Department supports S. 1757.
The District entered into a repayment contract dated June 3, 1976,
in which they agreed to repay all reimbursable costs associated with
the Jensen Unit of the CUP. However, pursuant to Section 203(g) of the
Central Utah Project Completion Act of 1992 (P.L. 102-575) the
District's contract was amended in 1992 to reduce the project M&I
supply under repayment to 2,000 acre-feet annually and to temporarily
fix repayment for this supply based upon an interim allocation
developed for an uncompleted project. The 1992 contract required the
District to repay about $5.545 million through the year 2037 at the
project interest rate of 3.222% with annual payments of $226,585. The
net present value of the amount remaining from this income stream
starting in 2009 is $4,028,443.\1\
---------------------------------------------------------------------------
\1\ All net present value figures cited in this testimony were
calculated by discounting the payment stream to the year 2009 using the
rate fro 30-year Treasury constant maturities for the week ending
October 9, 2009. The exact net present value will fluctuate based on
the date of the calcualtion and the Treasury rate.
---------------------------------------------------------------------------
However, the costs allocated to the contracted M&I supply, and the
M&I supply available through additional contract amendments, may be
significantly revised in the future upon project completion and Final
Cost Allocation. An additional currently unallocated cost of $7,419,513
is expected to be allocated to the contracted 2,000 acre-feet.\2\ These
are the costs that paragraph 3 of S. 1757 requires to be included in
the prepayment. Assuming that the costs allocated to the contracted
2,000 acre-feet will be increased by $7,419,513 with the reallocation
in 2019, the net present value of the stream of benefits from this
reallocation is $4,924,701. Therefore, under Reclamation's assumptions,
the net present value of the total stream of benefits anticipated under
this contract is $4,924,701 plus $4,028,443, or $8,953,144. The
contracted M&I amount is $4.1 million and the adjustment amount is $7.4
million. In total non-discounted dollars, the Conservancy District owes
the Federal government $11.6 million.
---------------------------------------------------------------------------
\2\ This allocation will be subject to revision should there be
additions to the project.
---------------------------------------------------------------------------
Under Reclamation law, water districts are not authorized to prepay
their M&I repayment obligation based upon a discounted value of their
remaining annual payments.
This legislation would authorize early repayment by the Uintah
Conservancy District to the Federal government. Because there is an
interest component to the M&I repayment streams to be repaid early,
early repayment without an adjustment for interest would result in
lower overall repayment to the United States. To keep the United States
whole, the Bureau of Reclamation would collect the present value of the
whole amount that would be due without early repayment. Thus, given
Reclamation's assumptions the present value of the payments collected
under this legislation will be at least $8,953,144, although the
legislation allows some flexibility in the timing of the repayment and
under some scenarios the total amount due could be higher.
The language in S. 1757 has been amended from the language
contained in an earlier version of this legislation, H.R. 2950. The
amended language clarifies that this legislation requires that the
Federal government be paid what it is owed by the Conservancy District.
Because the United States supports the goals of providing for early
repayment under this contract, and S. 1757 clearly establishes that
early repayment under this legislation must be of an amount equal to
the net present value of the foregone revenue stream, the Department
supports this legislation.
s. 1758
Madam Chairwoman and members of the Committee, I am Michael Connor,
Commissioner of the Bureau of Reclamation. I am pleased to be here
today on behalf of the Assistant Secretary for Water and Science who
oversees the Central Utah Project Completion Act activities to present
the Administration's views on S. 1758, the Bonneville Unit Clean
Hydropower Facilitation Act. The proposed legislation is associated
with development of hydropower on the Diamond Fork System, Bonneville
Unit, Central Utah Project.
The Central Utah Project Completion Act (CUPCA) provides for the
completion of the construction of the Central Utah Project (CUP) by the
Central Utah Water Conservancy District (CUWCD). CUPCA also authorizes
programs for fish, wildlife, and recreation mitigation and
conservation; establishes an account in the Treasury for deposit of
appropriations and other contributions; establishes the Utah
Reclamation Mitigation and Conservation Commission to coordinate
mitigation and conservation activities; and provides for the Ute Indian
Water Rights Settlement.
Hydropower development on CUP facilities was authorized as part of
the Colorado River Storage Project Act (CRSPA) under which the Central
Utah Project is a participating project. The development of hydropower
on the Diamond Fork System has been contemplated since the early days
of the CUP. The 1984 Environmental Impact Statement on the Diamond Fork
System described the construction of five hydropower plants with a
combined capacity of 166 MW of power.
However, these hydropower plants were never constructed and the
1999 Environmental Impact Statement on the Diamond Fork System
presented a plan which specifically excluded the development of
hydropower, stating `` . . . there are no definite plans or designs,
and it is not known if or by whom they may be developed.''
Although hydropower development was not included, construction of
pipelines and tunnels for the Diamond Fork System were completed and
put into operation in July 2004. Under full operation the Diamond Fork
System will annually convey 101,900 acre-feet of CUP Water and 61,500
acre-feet of Strawberry Valley Project Water.
In 2002 CUPCA was amended to authorize development of federal
project power on CUP facilities. With this new amendment plans for
hydropower development at Diamond Fork were included in the 2004 Utah
Lake System Environmental Impact Statement and the 2004 Supplement to
the Definite Plan Report for the Bonneville Unit (DPR). These documents
describe the construction of 2 hydropower plants on the existing
Diamond Fork System for a total generating capacity of 50 MW.
Section 208 of CUPCA included provisions that power on CUP features
would be developed and operated in accordance with CRSPA and CUP water
diverted out of the Colorado River Basin for power purposes would be
incidental to other project purposes.
There are 2 options for hydropower development on the Diamond Fork
System: 1) federal project development or 2) private development under
a Lease of Power Privilege contract with the United States.
Under the first option the CUWCD would construct the Diamond Fork
hydropower plants under contract with the United States and contribute
an upfront local cost share of 35 percent of the construction costs. In
addition to the hydropower construction costs, the costs associated
with conveyance facilities upstream of the Diamond Fork would have to
be repaid by the non-Federal project sponsors.
The DPR allocates costs of the CUP according to project purposes.
The reimbursable costs allocated to power are $161 million based upon
the costs of developed features upstream of the Diamond Fork System. It
is anticipated that under this option, these allocated costs would be
repaid through an arrangement among Interior, CUWCD, and the Western
Area Power Administration (WAPA).
Under the second option, private hydropower could be developed.
Although the DPR and 1999 EIS describe federal hydropower development,
they also provide the option for a Lease of Power Privilege arrangement
with the United States. Under this arrangement Interior would implement
a competitive process to select a lessee for private development of
hydropower at Diamond Fork. The lease arrangement would require
repayment of the $161 million of upstream costs plus annual payments to
the United States for the use of the federal facilities, amounting to
at least a 3 mil rate paid by the lessee to the United States.
S. 1758 does not preclude federal development of hydropower, but it
does increase the likelihood of private development. If enacted, this
bill would indefinitely defer the $161 million in costs allocated to
power development in the Diamond Fork System under section 211 of
CUPCA, thus reducing the cost of hydropower development at this site.
This bill would increase the likelihood that a private developer would
pursue a Lease of Power Privilege arrangement because the private
developer would not, under this legislation, be required to repay the
$161 million of construction costs that were allocated to power as
would be required under existing law.
We understand and appreciate the goal of this legislation of
facilitating the development of hydroelectric power on the Diamond Fork
System.
However, the Administration has serious concerns about losing our
ability to recoup the Federal investment made in these facilities as
set forth in this legislation. The Federal government may benefit in
the medium term from the annual payments for the use of Federal
facilities that would be paid if a lessee entered into a Lease of Power
Privilege arrangement for production of hydroelectric power on the
Diamond Fork System. Assuming only a summer water supply as under
current deliveries, these payments are estimated at about $400,000 a
year starting the year that the project is completed and continuing for
the life of the project. However, because payment of $161 million of
allocated power costs would be postponed indefinitely, it is unclear
what the long-term fiscal implications of enactment of this legislation
would be and how the United States Treasury would be made whole. This
legislation would potentially permanently postpone anticipated receipts
to the U.S. Treasury at the expense of the Federal taxpayer. While it
is not clear at this time whether a nonfederal developer would propose
a hydroelectric project at Diamond Fork under current law, if this were
to occur, repayment of the allocated power costs would begin after the
hydroelectric project is completed and average $5.3 million a year for
50 years.
Section 5 of S. 1758 would prohibit the use of tax-exempt financing
to develop any facility for the generation or transmission of
hydroelectric power on the Diamond Fork System. This provision was
added to the bill to prevent any loss of revenue to the federal
government as a result of the financing mechanism used for development
of hydropower at this site.
Further analysis would help to determine whether this legislation
to facilitate private development of hydropower at Diamond Fork would
provide sufficient benefits to justify the costs.
s. 1759
I am Mike Connor, Commissioner of the Bureau of Reclamation. I am
pleased to be here today to provide the views of the Department of the
Interior (Department) on S. 1759, the ``Water Transfer Facilitation
Act.'' The Department supports S. 1759 with modification as explained
below. Further analysis would help to determine the role that this bill
could play in providing improved flexibility and efficiency for water
management in the Central Valley.
The Central Valley of California is experiencing a third year of
drought which has strained the resources of both the State Water
Project under the jurisdiction of the State of California, and the
Central Valley Project (CVP) operated by Reclamation. The prolonged
drought has created severe hardship especially to farmers, farm
workers, and related economies on the west side of the San Joaquin
River valley. The Department is cognizant of the need for creativity
and flexibility in meeting the water demands of Californians served by
the Central Valley Project. The Department supports facilitating the
transfer of water from those areas having available water supplies to
areas experiencing shortage to the extent that water transferred is not
detrimental to the operations of the CVP, does not cause harm to third
parties, and does not create adverse environmental consequences.
When they are done right, water transfers move water from willing
sellers to willing buyers in transactions that can improve economic
well-being, increase efficiency in water use, and protect against
negative externalities. There are many situations where water transfers
during periods of drought can be used to ensure that available water is
used in areas where it is most needed, and S. 1759 is aimed at
facilitating these efficient water transfers. We recognize the
potential of voluntary water transfer as a mechanism to increase
flexibility into our water management system and respond to changes in
available water resources. However, we are also committed to
implementing review processes for all water transfers that will
effectively protect the broad range of interests that can be impacted
by changes in water use. Our goals as a Department include ensuring
efficient use of available water infrastructure as well as maintaining
vibrant communities and protecting the environment.
Together with the California State Water Code, current Federal law
in Section 3405(a)(1) of the Central Valley Project Improvement Act of
1992 (CVPIA) (Public Law 102-575, 106 Stat. 4709) prescribes those
conditions under which CVP water is transferable. While the proposed
legislation establishes that water transfers between and among
specified South of Delta divisions are presumed to meet the historical
and consumptive use requirements of subparagraphs (A) and (I) of
section 3405(a)(1) of Public Law 102-575, the proposed legislation does
not change the obligation of the Department to protect the public
interest and the integrity of the CVP, and to otherwise act in
accordance with the provisions of the CVPIA. To this end, if the
proposed legislation is enacted, Reclamation will review its procedures
and ensure that administrative guidelines are in place as necessary to
assure that transfers of water continue to serve the overall public
interest. Specifically, Reclamation will continue to ensure that
transfers take place without significant adverse impacts to other water
users, federal programs, Indian tribes, CVP operations, or the
environment. We suggest that these guidelines be expressly incorporated
into the items we report to Congress under Section 4(a) of the bill,
under which Reclamation would submit reports to Congress on the status
of efforts to help facilitate and improve the process for water
transfers within the Central Valley and water transfers between the CVP
and the State Water Project.
Under the CVPIA and contract provisions, Reclamation must approve
proposed water transfers and cannot approve transfers unless the
transfer is consistent with California water law. Transfers are on a
willing buyer, willing seller basis, and Reclamation facilities can be
used to deliver transferred water only when approved by Reclamation.
Reclamation collects various charges, including operation and
maintenance charges, incremental conveyance costs, and CVPIA
restoration fund charges, together with the cost of service rates, as
required by law from the entities that transfer the water (the
transferors). Because of the diversity of CVP contractors and the many
different scenarios under which water transfers take place, if S. 1759
were enacted there would probably be some financial impacts that
Reclamation would only be able to fully calculate upon completion of a
given transfer. For example, depending on the contract in place with
specific CVP contractors, the legislation could generate additional
revenue for the CVPIA restoration fund and for the San Joaquin River
Restoration fund in some years in the Friant Unit of the CVP. In this
area in 2008, Friant contractors could have transferred about 40,000
acre-feet to west-side CVP contractors in the San Luis Unit under the
proposed legislation. The transferred water would have been subject to
the CVPIA restoration fund charges (about $9) under Title X of Public
Law 111-11, Section 10009(c)(1)(B), as well as Friant surcharges,
resulting in additional revenues to the Restoration Fund.
If enacted, S. 1759 could strengthen Reclamation's ability to
facilitate appropriate water transfers. We would note, additionally,
that Reclamation already has a robust water transfer program. This year
in the CVP, Reclamation has facilitated the transfer of over 600,000
acre feet of water by and among CVP contractors, as well as users of
State Water Project water. This has been a record for the Reclamation
since on average there are approximately 250,000 acre feet of transfers
which are processed by the CVP and State Water Project. For figures
specific to only the federal CVP, Reclamation has signed off on a total
of 168 individual transfers totaling approximately 435,286 acre feet of
federal contract water. All were accomplished within the accelerated
water transfers program using programmatic environmental documentation.
An additional 9,156 acre feet was transferred among Sacramento Valley
contractors using transaction-specific environmental documentation.
Separate from the transfer program, a large volume of water was
delivered that was ``rescheduled,'' or held over in storage, from the
2008 water year. Of the 337,307 acre feet of water rescheduled in San
Luis Reservoir from 2008 into 2009, approximately 12,518 acre feet were
eventually transferred, approximately 50,000 acre feet remains in San
Luis, and the remainder was delivered to the party rescheduling it.
Friant Division contractors rescheduled approximately 55,615 acre feet
in Millerton Reservoir, and of that, 11,848 acre feet were transferred.
Cross Valley Contractors rescheduled 6,063 acre feet of water from
2008, all of which together with 11,550 acre feet of 2009 contract
supply was transferred to Westside contractors. These transfers were in
addition to the accelerated transfers described above.
In addition to the suggested change to Section 4(a) above, the
Department would also like to offer a technical change to the proposed
legislation. The Department suggests that the initial reporting in
Section 4(a) be set at 6 months from the date of enactment to provide
adequate time for meaningful information to be available to Congress.
Accordingly, we suggest editing the reference in Section 4(b) to delete
``Not later than July 15, 2010'' and to call for Reclamation to update
the report every 180 days after the date on which the initial report is
submitted to Congress.
With regard to Section 3 of S. 1759, the Fish and Wildlife Service
has confirmed that the Service could provide a programmatic biological
opinion to Reclamation on water transfers if this is determined to be
appropriate. The consultation process would begin with a request from
Reclamation for consultation accompanied by a biological assessment
that describes Reclamation's water transfer program and evaluates the
potential effects of the program on listed and proposed species and
designated and proposed critical habitat and determines whether any
such species or habitat are likely to be adversely affected by the
program. The Service could potentially expedite a programmatic
biological opinion, subject to the availability of appropriations.
I would also like to note that Reclamation is currently working
with the California Department of Water Resources in developing
consistent evaluation criteria for a long-term, programmatic water
transfer program designed to provide for water transfers from State and
Federal contractors North of the Delta to contractors South of the
Delta. These transfers will continue to be subject to the consumptive
and beneficial use requirements in the State Water Code.
Senator Stabenow. Thank you very much, Commissioner. Let me
first talk about S. 1758 and ask you if this legislation is
enacted would the Department of the Interior initiate a
competitive bidding process to issue a lease of power privilege
for the right to develop hydroelectric power at the Diamond
Fork system facilities?
Mr. Connor. Yes, that's typically the process to initiate
an open competition or inquiry of interest amongst whoever
wants to express that interest for at least a power privilege
arrangement.
Senator Stabenow. What are your plans to develop green
energy including hydroelectric power?
Mr. Connor. The Bureau, as Secretary Salazar has pointed
out here in front of this Committee, the Department has a very
broad agenda in the area of green energy, renewable energy
resources. Reclamation, in particular, has put it in the
category of 3 different areas that we're looking at hydropower
development and another area that we're looking at renewable
energy development.
With respect to the 3 areas of hydropower development, the
first is we are conducting a review of our current facilities
looking to those opportunities that we think exist for putting
hydro generation units on those existing facilities. So new
units on existing facilities.
There was a study done pursuant to the 2005 Energy Policy
Act which required us to look at those opportunities. We were
going to take another look at that study with its renewed
emphasis on renewable energy development. We might have a few
more identified potential projects than these 6 that were--that
came out of that particular report.
A second area is our long standing Reclamation program
which we're going to give more emphasis to which is up rating
and increasing efficiency at existing hydroelectric units. Over
the last 30 years I think the figure is and if I'm wrong I'll
correct it for the record, is something in the neighborhood of
1,800 megawatts in capacity has been created just through
efficiency gains in up rating and re-building some of these
units. 1,800 megawatts of capacity is approximately the
capacity of Hoover Dam generation facilities.
As an ongoing effort right now we are up rating 2 units at
Grand Coulee Dam which will result in a yield of 110 megawatts
of additional capacity which is the equivalent of a large wind
farm. So there's some pretty significant gains that could be
made through the efficiency program.
Last we are looking at trying to facilitate low head,
hydro, small hydro opportunities. We have a lot of creative
thinking going on amongst our water user communities and power
communities where they are looking at using drops in their
canal structures since water is flowing through there putting
in canal generation units. Through the 40 million dollars we
made available through Recovery Act funding we allocated $40
million for water conservation efficiency and renewable energy
type projects.
We did one in Oregon that was a win/win for many projects--
aspects. We invested $2 million in to lining of about a mile of
canal. Actually taking an unlined canal out of service,
replacing with a pipeline, putting in a 0.75 megawatt unit
turbine on that pipeline system saving 29 cubic feet per second
of water that we allocated to the stream for fish purposes.
So those are the type of projects that we're going to do
with respect to hydro power. We've already done some. We're
going to look to expand that in fiscal year 2010.
The last area is just non hydro renewables whether it be
wind, solar, geothermal. We are going to look to try and
integrate some of those renewable energy opportunities into our
water operations. If we can do that and use some of our project
needs for power through those renewable energy resources we can
save our hydro power resources and keep more on the grid.
Senator Stabenow. Great. Thank you very much. It'd be
helpful to gain some understanding of some of the general
mechanics of the legislation addressing the California water
transfers.
I wondered if you might speak to what the bill does. For
example, section 2 relates to certain conditions that the
Bureau of Reclamation must follow in evaluating water transfers
within the Central Valley project. That relates to transfers of
irrigation water among certain projects and contractors within
certain divisions.
Can you confirm that all of those divisions are located
below the pumping stations in the delta that take water from
the Sacramento Valley to the San Joaquin Valley?
Mr. Connor. The provisions of section 2 of the bill, our
interpretation has been that they are south of delta
facilities. That those are the districts and facilities
indicated by the legislation there has been, I know, some
discussion about that point. Maybe some clarification may be
necessary.
But that's been our interpretation in looking at the bill.
Senator Stabenow. Ok. Thank you.
Senator Bennett.
Senator Bennett. Thank you very much. You make reference in
your comment about the amount the Federal Government would lose
under 1758. The amount they would lose if it were developed
under present law.
But you acknowledge that the best way to facilitate hydro
power development at Diamond Fork is to allow this bill to
pass. Do you believe that if we do not allow this bill to pass
that there will be hydro development there? Because you'll lose
it all----
Mr. Connor. Right.
Senator Bennett [continuing]. If there is no hydro
development on at Diamond Fork.
Mr. Connor. Yes, Senator Bennett. Thank you for that
question. I would just caveat, as you know, the Central Utah
project and its operations are run out of the Assistant
Secretary's office.
Senator Bennett. Yes.
Mr. Connor. So, I may supplement some of these answers for
the written record. But I think in reviewing this matter there
has been some economic analysis in a definite plan report that
the Department had done with respect to hydro power
development. The economic analysis, as I understand, this is a
2004 definite plan report, did show that there was economic
viability of a project that could take into account that $161
million in sunk cost.
So that was the Department's perspective. That you could
repay those costs, still develop sufficient hydro power
resources and recoup that and make it a viable economic
enterprise. So from that standpoint we think there should be
able to be hydro power development.
Having said that, it's safe to say there was controversy or
there was disagreement about that economic analysis.
Senator Bennett. Yes.
Mr. Connor. There has not yet been hydro power development
to date.
Senator Bennett. So we've had 5 years of experience since
the time someone opined that yes, it should go forward. We've
had 5 years of experience without it going forward.
Mr. Connor. Yes, right.
Senator Bennett. Is that a safe summary here?
Mr. Connor. That's correct.
Senator Bennett. Ok. I'm leaning on that 5 years experience
to say let's not let another 5 years go by without any money
coming into the Federal Government. The $161 million has been
spent. It is indeed a sunk cost.
If we do not have any hydro power there as the 5&ars we've
had indicate we will not have. Then the 161 is never going to
be repaid. But if we can indefinitely defer the repayment and
thus lure somebody on to build the dam and create the power,
then indefinitely deferred is not the same thing as cancel. The
Congress can come back and say, alright, now you've got a
viable activity going on and these are the terms we want.
Isn't that a viable thing to look forward to?
Mr. Connor. That certainly is a strategy that could play
out. I certainly understand that. I think that in the interim
as Congress decides how it will proceed with this bill we will
continue to look at the economics and keep your office updated.
Senator Bennett. I'm a businessman. I look at it in terms
of cash-flow, Madame Chairman. The cash has already flowed. An
opportunity to get some of it back is something that's
attractive to me.
Thank you very much.
Senator Stabenow. Thank you, Senator Bennett.
At this point unless we have further questions I would
thank Commissioner Connor very much for your testimony.
We would move to our second panel of Martin McIntyre,
representing the San Luis Water District.
Hamilton Candee, representing the Grassland Water District.
So we welcome and again, appreciate very much you're
traveling here today to be able to speak about what I know is a
very important topic for both of you. Thank you very much.
Mr. McIntyre is you would take about 5 minutes to summarize
your testimony we would appreciate it. Then Mr. Candee, if you
would do the same as well, we would appreciate it. Then we will
open it for questions.
Welcome.
STATEMENT OF MARTIN R. MCINTYRE, GENERAL MANAGER, SAN LUIS
WATER DISTRICT, LOS BANOS, CA
Mr. McIntyre. Thank you, Madame Chair, Senator Bennett. I'm
grateful to be here today. My name is Martin McIntyre. I am the
General Manager for the San Luis Water District.
I would like to make clear, however, that today I represent
more than just the San Luis Water District and its
constituents. I'm carrying with me today the hopes, the needs
of cities, communities, industry and thousands of family farms
in the San Joaquin Valley. I consider that to be a substantial
burden. Hopefully I will represent those interests fairly and
effectively today.
I'm grateful to speak in support of S. 1759 and want in
particular to thank Senators Feinstein and Boxer for their
sponsorship of this bill. As you've heard previously and
undoubtedly know from your own experience, the San Luis Water
District, the San Joaquin Valley and indeed the entire State of
California is experiencing a severe social and economic crisis
driven by limited availability and reallocation of water
supplies throughout the state. The decisions that we make in
the next year or 2 will have a profound impact on the economy
and the people of California.
I'd like to tee up my comments very briefly, if I might, by
referring you to a map that I believe was handed out to you
earlier. So that perhaps we can become geographically oriented.
I'm going to draw your attention to several features on the
map.
If you look to the far left hand corner of the map you will
see the state and Federal pumping plants identified as CVP and
State Water Project Banks Pumping Plant. Just to the north or
to the left off the map is the Sacramento San Joaquin delta of
which there's been much information shared of late. All of our
water supply on the west side largely comes through the San
Joaquin delta. It has become a choke point for both the state
and Federal water projects.
So the west side of the valley is to the bottom of your
page where the San Luis Water District is located. On the upper
side of the map in green is the Friant unit. There are 2
critical lines both in a reddish color running from the pumps
all the way along the west side and south as far as Los
Angeles. That is the California aqueduct. It is one of the
carotid arteries, if you will, of water supply and economic and
social well being within the state.
To the north is the Friant Kern canal. They both converge
down at the right side of your map. Those projects serve at
least a significant portion of water supply to 25 million
people within the state. They service to the north, Silicon
Valley, to the south, all the way to Los Angeles commercial and
industrial centers. It is indeed a critical artery through
which water supply flows. So the bill before you would affect
only those areas reflected on this map and not those areas
north in the delta region.
The west side of the San Joaquin Valley is a consequence of
environmental, regulatory actions in the delta have seen in the
past 15 years their water decline from their contracted supply
from an average approaching 100 percent of that contract supply
all the way to an average of 35 percent of contract supply.
Shockingly this year our allocation was 10 percent. That has
led to some pretty extraordinary dislocation of families and
economies in the Central Valley.
I have seen farmers with fear and anger in their eyes as
they see their family legacies, second and third generation
farms, at risk. We've seen food lines hundreds of feet long
where unemployed farm workers are receiving food handouts to
feed their families. We have tried to adapt to this changing
environment.
We've done so with extraordinarily aggressive
implementation of water efficiency programs, drip irrigation,
lining channels, piping facilities, fallowing ground. We have,
in San Luis Water District 100 percent of our agricultural
water is metered. But none the less we have been unable to
satisfy the water supply needs. We fallowed over 500 square
miles of some of the most productive Ag land in the world.
In simplest terms this bill would simply help facilitate
some transfers between the east side of the San Joaquin Valley
on the map I referred to on the west side. In practice,
however, water transfers are generally very complex. Can
require 6 to 8, 10 months in order to accomplish and often miss
the critical target for irrigation season or urban needs.
I was going to present to you today a brief summary of the
extraordinary efforts we've gone through this year to move
water 25 miles reflected on your map right in the center of the
map with the red arrow from the green area to the blue area. As
a consequence of limited facilities and other restrictions
however, it was necessary to gain approvals from 5 different
agencies to execute half a dozen agreements. To transfer that
water all the way down the northerly artery, across the valley
and wheel it back up all the way to the San Luis reservoir on
the north end of the California aqueduct.
That process was fraught with risk, cost and in fact, took
us 9 months to accomplish. We're still not certain the water
will actually be received.
So this bill is a welcome aid in facilitating some portions
of those complex transfers. But indeed the largest solutions,
as expressed by both of the Senators that testified earlier,
requires a much broader perspective and must address a
declining bay delta area where food webs have collapsed,
species populations have collapsed. We believe that the state
and Federal pumps that provide the life blood to the state have
been disproportionately blamed for the decline of species. We
encourage a broad re-visitation of the biologic opinions that
were issued for delta smelt in particular in view of recent
science that has become available.
I thank you for the opportunity to speak today. I trust
that we will be able to avoid some of the impending human
tragedy that is on the horizon.
[The prepared statement of Mr. McIntyre follows:]
Statement of Martin R. McIntyre, General Manager, San Luis Water
District, on S. 1759
Chairwoman Stabenow, honorable members of the Committee: Good
afternoon, I am Martin McIntyre, General Manager of the San Luis Water
District, and I greatly appreciate the opportunity to appear before you
today.
I am here in support of S. 1759, the Water Transfer Facilitation
Act of 2009. I frequently speak on behalf of the San Luis Water
District but today I also represent the hopes and needs of a much
larger constituency including cities, industry, thousands of family
farms, their employees and many water districts served by the Central
Valley Project (CVP).
I was asked to testify before this committee because the San Luis
Water District will live or die by the success or failure of water
transfers. In 2009, with only 10 percent CVP allocation, failure to
transfer adequate supplies of supplemental water would have resulted in
the loss of tens of thousands of acres of high value permanent crops. I
have been personally responsible for oversight of numerous transfers
and negotiating the withering gauntlet of agreements, administrative
approvals, and regulatory processes required for a one time single year
transfer.
The social and economic tragedy that has been unfolding for years
is now upon us. In 2009, a combination of prior regulation, 3 years of
below normal precipitation and new Endangered Species Act regulations
have resulted in a meager 10 percent allocation of CVP contract
supplies to districts lying south of the San Joaquin/Sacramento Bay
Delta (Delta). Over 500 square miles of productive land has been
fallowed, threatening farms, families, cities and counties with
unprecedented economic hardship.
Worse still, the US Bureau of Reclamation has advised that in 2010
we will receive only 10 to 30 percent water supply allocation under
average hydrology and only 25 to 40 per cent allocation in the wettest
of years. Prior to Biologic Opinions (B.O.s) rendered in the past 2
years, south of Delta CVP allocations averaged 65 percent. Current
hydrologic modeling forecasts a decline of average annual allocations
to 35 percent as a consequence of the recent smelt and salmon B.O.
California's water supply is in crisis. The Delta is in crisis.
Numerous species, habitat and levees are all in serious decline.
Twenty-five million people and 3 million acres of prime agriculture
depend on water supply from the Delta. There are many troubling causes
for decline of Delta species including:
Collapse of the food web
Toxic runoff
Invasive species
Thousands of unscreened water pumps throughout the Delta
Changes ocean conditions
Despite all these other critical impacts, decline of Delta aquatic
species has been historically blamed on the State Water Project and
Central Valley Project pumps that support much of the State's
population and agriculture. Until we address the primary causes of
Delta decline, California's water supply security will continue to
erode.
Under these increasingly dire circumstances, we cannot survive
without exercising all available tools, including the tools to be
provided by S 1759, the Water Transfer Facilitation Act of 2009.
Central Valley Project water users support S. 1759 because it would
expedite our ability to employ water transfers as one tool to make the
best use of our limited supplies. We thank Senator Feinstein and
Senator Boxer for introducing this legislation. Congressmen Jim Costa
and Dennis Cardoza have introduced companion legislation in the House,
and we urge Congress to move forward on these bills as soon as
possible.
s 1759-what it would do and what it would not do
In the Central Valley, irrigation districts and water agencies have
for decades exchanged and transferred water to each other as a means of
getting surplus water to water short areas. These water transfers are
regulated by California water law and by federal and state
environmental laws, including the Endangered Species Act (ESA) and the
National Environmental Quality Act (NEPA). Transfers of water in
federal Central Valley Project are subject to an additional level of
regulation under the Central Valley Project Improvement Act 1992
(CVPIA).
One of the major purposes of the CVPIA was to ``assist California
urban areas, agricultural water users, and others in meeting their
future water needs.'' (CVPIA, Section 3405(a)). The law affected water
transfers in 3 major ways. First, it allowed, for the first time, CVP
water to be sold by individual water users to entities outside the CVP
service area. The authors of the legislation intended this provision to
``open up'' CVP supplies to major urban areas, such as Los Angeles, and
generate revenue for CVP environmental restoration through transfer
fees. Second, it allowed certain water-rights holders in the San
Joaquin and Sacramento Valleys to transfer water made available to them
by the CVP under settlement contracts with the federal government.
Third, the CVPIA made these newly-authorized transfers subject to
review and approval by the Interior Department, through the Bureau of
Reclamation, according to a set of criteria written into the Act.
The CVPIA has not achieved its goal of facilitating water transfers
to help Californians meet their water needs. The envisioned transfers
of water out of the CVP service area to urban water agencies have not
occurred for several reasons, including environmental restrictions on
the Bay-Delta pumps. Transfers among agencies within the CVP service
area have been slowed and even discouraged by the Bureau's application
of CVPIA.
Before the Act, water agencies within the CVP routinely transferred
water among themselves, often on short notice, in compliance with state
law. Now, those transfers are subject to months of review by the
Bureau. Moreover, CVP users believe that the Bureau is misinterpreting
the CVPIA by applying the water transfers criteria intended only for
the new transfers specifically authorized by the Act to historical
transfers within regions of the CVP. The result is that some once-
routine transfers are now not possible. S. 1759 is intended to
facilitate water transfers among agencies within the CVP south of Delta
service area by removing some of the bureaucratic impediments that
discourage transfers or make them unnecessarily slow by doing the
following:
First, Section 2(a) of the legislation would deem that
transfers among water districts within the same region of the
CVP south of the Bay-Delta have met the two CVPIA criteria
(3405(a) (1) A and I) that were originally intended for only
transfers outside of the CVP, for transfers between the
Sacramento and San Joaquin Valleys and transfers from the
Settlement Contractors.
The purpose of the criteria is to ensure that agencies transfer
only water that they actually have and could otherwise use so that
transferring agencies do not impact the supplies of other water users.
These ``consumptive-use'' and ``historic-use'' safeguards make sense
for transfers that would move water through the Delta from the
Sacramento Valley to the San Joaquin Valley or to a region entirely
outside of the CVP service area. But they don't make sense for
transfers among agencies within the same region that are sharing the
same limited regional water supply.
Section 2(a)(1) of the bill deems that the CVPIA
``consumptive-use'' and ``historic-use'' criteria are met by
transfers among CVP water agencies (``contractors'') in
specific Divisions of the Project south of the delta. This
would allow some south-of-delta agencies to make water
available for transfer they otherwise may not have made
available under the Bureau's interpretation of the two criteria
and in general are wet year excess water. This provision would
apply only to transfers among agencies south of the Delta.
Transfers through the Delta and transfers to outside agencies
beyond the CVP service area would still have to meet criteria
in (3405(a)(1)A and I) of CVPIA .
Section 2(a)(1) of the bill deems that the criteria are met
by transfers between CVP contractors and other agencies that
are within the same CVP Division and hold temporary CVP water
supply contracts or once held temporary or long-term CVP water
supply contracts. These are non-CVP irrigation districts within
the service area of the Friant Unit of the CVP and intermingled
with Friant districts. They receive water from the Kings,
Kaweah and other rivers that flow through the Friant service
area, and overlap the same groundwater aquifers as Friant
districts. Temporary CVP contracts allow them to buy flood
water from the CVP, when it's available.
Transfers among Friant CVP contractors and neighboring non-CVP
districts have historically been used to make the best use of
groundwater storage opportunities. The Bureau's application of the
CVPIA consumptive-use and historic-use criteria to these water-
management transfers has made them more difficult, and in some cases
impossible. S. 1759 would ease this impediment and allow for improved
management of surface and groundwater supplies.
Section 2(b) (1) ensures that any transfer affected by S.
1759 not interfere with implementation of the San Joaquin River
Settlement.
Section 3 of the bill would facilitate transfers within the
entire CVP by directing the Interior Department to use existing
authority to develop a programmatic environmental review of CVP
water transfers. All CVP water transfers are subject to review
under ESA and NEPA and currently a new review, stand-alone
environmental review for each transfer even though many of the
elements examined are common to most transfers. A programmatic
approach allows the regulatory agencies to develop a framework
addressing these common elements so that they don't have to be
examined anew for each transfer. Individual transfers would
still be subject to separate environmental reviews, but reviews
could be done faster within a programmatic framework.
S. 1759 would not create any new water transfer authorities.--It
would not waive or shortcut reviews of transfers under federal or state
environmental laws, and it would not reduce revenues from environmental
fees paid into the Central Valley Project Restoration Fund. It does not
affect reviews of north-south transfers through the Delta or outside of
the CVP.
S. 1759 also does not create new water.--It removes some of the
hurdles and expedites the efficient transfer and management of
dangerously short and unreliable water supplies. Transfers help us buy
time until long-term solutions are developed to return adequate and
stable water supplies to California agriculture. But time is running
dangerously short.
S. 1759 does not create ``Paper Water''.--When the transfer
provisions of the CVPIA were being assembled, it was clear that
transfers of CVP water that had historically been provided to certain
CVP contractors in settlement of water right issues associated with the
development of the CVP, were going to be in play in terms of the new
transfer capabilities to be provided by the proposed changes in law. In
particular, the ability to transfer Sacramento River water rights
settlement water supplies, as well as water supplies provided in
settlement or exchange of San Joaquin River water rights, were now
proposed to be able to be transferred.
There was concern among existing CVP water service contractors from
throughout the Project that some of this transfer potential for water
rights settlement water supplies could adversely impact the
availability of their CVP contract water supplies as some of the
established water right settlement contract amounts had never been all
put to use. To the extent this water hadn't been put to use, it would
be available for use as Project contract yield to the CVP water service
contractors. Similarly, there were Municipal and Industrial CVP
contracts that were still in a ``build up'' period that had a history
of not using all of their CVP contract entitlement which raised similar
concerns among the other contractors relative to the potential for
transfers to occur with water that did not have a history of being put
to use (e.g.. the term ``paper water'').
Thus, the conditions associated with both Sections 3405(a)(1)(A)
and 3405(a)(1)(I) were intended to protect CVP contractors from the
potential that water which never had a history of being used (and thus
was available to become part of the CVP yield for the balance of the
CVP contractors) could now be transferred. The proposed changes
modifying the application of these two sections of the CVPIA contained
in the subject legislation would only apply to transfers as between CVP
contractors south of the Delta (San Luis, Delta-Mendota, Mendota Pool,
Cross Valley, San Felipe and Friant Divisions). The potential for
``paper water'' transfers for CVP contractors south of the Delta has
never existed and does not exist today. While temporary surpluses of
water for an individual contractor may exist from time to time (due in
particular to local annual hydrologic conditions) there are no
contractors that have contract entitlement amounts that otherwise go
unused unless transferred. This is especially true under the water
shortage conditions that exist for all CVP contractors south of the
Delta resulting from reduced Delta pumping for protection of endangered
species or resulting from new releases of water for San Joaquin River
restoration. Thus, the proposed language does not increase the
potential for ``paper water'' transfers. However, it does remove a
significant impediment that was inadvertently created with the passage
of the CVPIA and the unfortunate application of Sections 3405(a)(1)(A)
and 3405(a)(1)(I) to transfers that used to occur with limited review
which now are virtually precluded from occurring, all at a time when a
great need exists to move water within the Project due to the
previously mentioned conditions of water shortage.
The San Luis Water District-A ``Westside'' District
The San Luis Water District (SLWD) serves 66,000 acres located on
the western side of the fertile San Joaquin Valley (See Figures 1 &
2)*. Historically, adequate supplies of water, fertile soils, an ideal
climate and innovative farming practices have been combined to produce
superior yields of high value crops which feed both the country and the
California economy. In the past ten years there has been a growing
shift from row crops to permanent crops (trees and vines).
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* Figures 1 and 2 have been retained in subcommittee files.
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SLWD irrigation facilities are among the most efficient anywhere.
District facilities include 52 miles of pipelines, 14.3 miles of lined
canals and only 3.3 miles of unlined canals. SLWD does not own or
operate any wells. On-farm irrigation efficiency is estimated to
average greater than 80%. Water use efficiency in San Luis Water
District includes the following features:
Over 96 percent of the distribution system is piped or lined
Over 80 percent of the irrigated lands are served by drip or
micro systems
Less than 8 percent of irrigated lands are served by furrow
and flood irrigation
100 per cent of District and grower turnouts are metered
100 per cent of on farm tail water retained/reused
Zero spill at conveyance system terminus points
Despite this extremely efficient system, in 2009 about 25 percent
of the District irrigable land has been fallowed and over 80 percent of
annual crops have been abandoned due to cut backs in water supply. Even
more ominous, the survival of permanent crops and family farms now hang
in the balance.
San Luis Water District's only long term source of water supply is
a contract with the US Bureau of Reclamation (Reclamation) for up to
125,000 acre feet per year from the San Luis Unit of the Central Valley
Project (CVP). Groundwater is extremely limited and generally of very
poor quality. Due to factors discussed below, our CVP supply has become
so unreliable that high value permanent crops are at serious risk. A
single water short year could result in loss of permanent crops and
associated capital investment.
The Westside CVP
The SLWD is situated roughly in the middle of a 3,300 square mile
region of the California San Joaquin Valley generally known as the
Westside of the San Joaquin Valley. This region (about the size of
Delaware and Rhode Island combined) is located south of the California
Bay-Delta (Delta) and extends roughly from the City of Tracy in the
north to Kettleman City in the south and generally bordered on the east
by the San Joaquin River and extending to the west into San Benito and
Santa Clara (Silicon Valley) counties.
Common to SLWD and 28 other Westside water purveyors south of the
Delta are CVP water supply contracts administered by the Reclamation.
The CVP is the largest single water project in the Nation. The Project
provides water for farms, homes, factories, and the environment. It
produces electric power, and provides flood protection, navigation,
recreation, and water quality benefits from California's great Central
Valley to major urban centers in the San Francisco Bay Area. Water
provided by the CVP to the Westside serves more than 1.3 million acres
of highly productive farm land, 1.7 million Californians from small
rural towns to the ``Silicon Valley'', and countless waterfowl
dependent upon more than 100,000 acres of important wildlife management
areas situated in the Pacific Flyway.
West Side Water Supply Impacts
For over 15 years, Central Valley Project contractors--particularly
agricultural service contractors on the Westside of the San Joaquin
Valley such as the San Luis Water District--have been experiencing a
steady decline in both the volume and reliability of their water
supply. Beginning with the listing of winter-run Chinook salmon in
1989, followed by implementation of the Central Valley Project
Improvement Act and Clean Water Act, the region endured a gradual
decline in average annual CVP water allocations from nearly 100% prior
to 1989 to current estimates of only 35%. As discussed below, this has
severely strained the social and economic fabric of communities
throughout the Westside.
Supply Management and Water Use Efficiency
In order to cope with this water supply decline, water districts
and farmers throughout the Westside implemented new management
practices, technologies, and strategies to improve the efficiency of
their water use, conserve supplies, and acquire supplemental water.
These changes have garnered worldwide attention and have established
the Westside as the most water efficient agricultural producing region
in the world.
The following strategies have been widely adopted throughout the
area:
Conservation.--Tens of millions of dollars have been invested to
conserve water so that it can be spread to as many acres as possible.
Drip irrigation for permanent crops is standard and is also being
implemented on a broad scale for row crops. Canals and ditches have
been lined to reduce losses; low interest revolving loan programs have
been implemented to encourage investment in conservation and water
reuse.
Transfers.--Transfers are active at the farm, district and
Authority regional level. However many types of transfers require long
lead times and entail uncertain approvals. Inter-region transfers are
contingent upon Delta export pumping capacity, which has been virtually
eliminated by recent B.O.s
Crops.--In order to afford the investments in conservation and to
be able to compete in costlier water markets, farmers have had to
convert to high value vegetable and permanent crops. Trends over the
last 15 years have shown a gradual and consistent conversion.
Groundwater.--Unfortunately, groundwater in the region is generally
spotty in both availability and quality. Monitoring programs have been
implemented to track groundwater levels, drawdown, recovery rates and
subsidence to determine sustainable yield and to maximize sustainable
use.
Land Fallowing/Retirement.--Unfortunately, even after aggressively
implementing conservation, transfers, and groundwater programs there
hasn't been enough water available to irrigate all of the 1.1 million
Westside acres. 300,000-400,000 acres have been idled either by farmers
consolidating their supplies or through district programs.
Despite the foregoing effort, recent, rapid, and successive federal
Endangered Species Act actions have crippled the effectiveness of much
of these prior strategies and investments due to severe operational
limitations that have been imposed on the CVP by the FWS and NMFS to
protect ESA listed delta smelt, Chinook salmon, green sturgeon,
steelhead, and Southern Resident killer whales. These limitations
dramatically reduce the Westside's ability to supplement its
chronically short contract supplies of water with traditional transfers
from the north to the south.
Regulatory Actions and the Future of Westside Agriculture
In December 2008, the FWS issued a new Delta Smelt opinion on the
continued operations the CVP and SWP. No estimate has been produced as
to the population level benefits of the actions imposed by the FWS;
however, adverse impacts upon the water supply of the CVP and SWP are
generally agreed to average approximately 750,000 acrefeet of water per
year. Numerous suits have been filed over the new opinion.
In June 2009, the NMFS issued a new opinion Salmon, Steelhead and
Green Sturgeon opinion further impacting the continued operations the
CVP and SWP. No estimate has been produced as to the population level
benefits of the actions imposed by the NMFS; however, adverse impacts
upon the water supply of the CVP and SWP are estimated to average
450,000 acre-feet of water per year. Numerous lawsuits have been filed
over the new opinion.
Many in the academic and non-federal scientific communities point
to impacts being caused by factors other than the CVP and SWP exports,
such as invasive species, pollution, the thousands of non-CVP and SWP
diversions, legal and illegal harvest, ocean conditions, and climate
change. Lately, the federal fish agencies have begun to acknowledge
that these other factors are contributing to the decline of species.
But despite a growing body of scientific evidence demonstrating the
significance of these other factors, they have done nothing either to
estimate their importance or, more importantly, to curb their impact.
While benefits to fish through the FWS and NMFS historical
management practices have been elusive, the adverse impacts to water
users have been immediate, widespread and devastating. In a span of
less than 2 years, farmers south of the Delta have seen their CVP water
supplies cut from 65 percent of contract to 35 percent on average, an
almost 50% percent reduction.
In summary, the Westside's ability to supplement its chronically
short contract supplies of water with traditional transfers from the
north to the south is severely limited and thus the ability to more
effectively transfer and/or exchange water between the Westside and
Eastside of the San Joaquin Valley, as well as within divisions, is
critical in order to meet immediate water needs.
Without tools that can provide immediate and meaningful relief to
the Westside, the future of agriculture throughout the region is in
extreme peril. The loss of agriculture throughout the region will
disproportionately affect the small, rural communities that are based
on this economy.
``Eastside'' CVP, (Friant Division)
The Friant Division is located on the east side of the San Joaquin
Valley and serves approximately 15,000 farms on nearly 1 million acres
of highly productive agricultural lands (See Figure 2). A number of
cities and communities, including Fresno, Orange Cove and Lindsay,
receive all or a significant portion of their water supply directly
from the Friant Division. The Friant Division's water supplies, which
historically averaged about 1,250,000 acre feet per year, come from the
San Joaquin River via exchange with the historical water rights holders
who are to receive a more reliable water supply from northern
California CVP facilities. The Friant Division is predominantly
permanent crops. Some contractors are wholly dependent upon Friant
supplies. Other contractors have supplemental supplies, including
groundwater. Friant is a ``conjunctive use'' services area. In wet
years, Friant supplies are used to recharge groundwater aquifers which
are relied upon to make water deliveries in dry years.
California water conditions--Impacts to Friant Water Division
Pumping reductions in the Delta as a result of environmental
regulations are also affecting the Friant Division. Earlier this year,
for the first time in the nearly 60 years of the project, Reclamation
was concerned that it could not deliver northern California water to
the Exchange Contractors. The Exchange Contractors could then call upon
their historical water rights from the San Joaquin River. Up to 200,000
acre feet of Friant water could have been lost. Unfortunately, modeling
demonstrates that this risk will continue if conditions in the Delta
are unchanged.
Cross Valley CVP water supplies (128,000 acre feet) also come from
northern California and those contractors reside within the Friant
Division. Delta conditions have severely limited delivery of those
water supplies and those diminished deliveries are impacting
groundwater supplies for both the Cross Valley contractors and
neighboring Friant contractors.
Friant, Reclamation and the NRDC recently settled an 18 year old
lawsuit over San Joaquin River operations and its effect on salmon
fisheries which was supported by federal legislation, advanced by
Senator Feinstein, earlier this year. The Settlement has two goals--
restore the river system and salmon fishery and avoid or reduce water
supply impacts to CVP contractors. Water released from Friant Dam can
be recovered in the Delta. However, recent biological opinions have
called into question whether restoration flow releases can be
recaptured in the delta and returned to Friant.
The delta pumping restrictions affecting water supplies in the
Friant Division could result in the fallowing of over one hundred
thousand acres of permanent and annual crops with significant economic
impact to the eastside of the San Joaquin Valley and the loss of
specialty crops, such as fruits and nuts, to the entire Nation.
The Benefits of Transfers within the Friant Division of the CVP
One of the key features of the Friant Division is the conjunctive
use of surface and groundwater. Since the inception of the Project, wet
year water has been used to replenish groundwater supplies. In certain
instances, ground water recharge has been accomplished by transferring
water to non-long term contractors within the Friant Division
boundaries who share in a common groundwater basin. That transferred
water is then used instead of groundwater (``in-lieu recharge'') or put
into recharge facilities for direct groundwater recharge. Given the
hydrological volatility of water supplies in the Friant Division, wet
year conditions may suddenly occur and the opportunity to transfer the
wet year water is short as a result of limited storage capability at
Friant Dam.Transfer approvals are needed quickly to take advantage of
groundwater recharge capabilities in wet years.
Case Study-Friant Division (East Side) Transfer
Since the passage of CVPIA, transfers of wet year water to non-
long-term CVP contractors have become increasingly difficult. The
proposed legislation contains a provision which would statutorily meet
the transfer conditions of the CVPIA that are currently causing
restrictions and delays in transferring water.
As an example, in the last wet year cycle, some Friant contractors
were able to reduce irrigation demands due to rainfall into late May.
One of the Friant districts, who has limited direct groundwater
recharge facilities, desired to transfer water to a non-CVP contractor
in the Friant Division who could recharge the groundwater using their
facilities. The consumptive use condition in the CVPIA had the affect
of thwarting this transfer. The water was ultimately put to beneficial
use but by means not nearly as efficient and effective. Relief from the
current CVPIA provisions for this type of transfer would improve the
ability to use wet year conditions to recharge groundwater. Delays as a
result of these provisions could result in a loss of water supplies to
an already water supply deficient area.
Case Study Eastside to Westside Water Transfer
Many water transfers are extraordinarily complex, requiring
numerous agreements, multiple exchange partners and various state and
federal agency approvals, long processing times and multiple
environmental documents. These processes add risk, time and cost to
transfers. In many cases it is simply not possible to complete a
transfer during the timeframe water is available. Due to a lack of
conveyance facilities and excessive requirements, some seemingly simple
transfers can become very complicated. One example:
San Luis Water District (SLWD) is a Westside CVP contractor in
Fresno County experiencing a zero water supply allocation in early
2009. Fresno Irrigation District (FID) is an Eastside CVP contractor
also in Fresno County. FID owns and operates a water bank. In 2009 FID
had surplus banked water to sell. In April terms were struck for a one
time transfer of 10,000 acre feet, contingent on successful completion
of environmental documents and various approvals.
The transfer required:
Negotiation and execution of four agreements
Completion of federal environmental assessment
Approval by Reclamation
Approval by State Water Resources Control Board
Approval by Department of Water Resources
Approval by State Water Contractors
Approval by City of Fresno
Despite the most diligent of efforts involving over twenty
professionals, it was not until 6 months later, in the last feasible
month, before transfer water actually began its 300 mile journey from
FID to SLWD which have facilities separated by less than 25 miles.
Throughout the entire process there was no certainty that the essential
water would actually be transferred.
Human Impacts of Westside Water Shortages
In January and February 2008, pumping constraints imposed upon the
CVP and SWP by the U.S. District Court for the Eastern District of
California intended to protect delta smelt cost the projects
collectively approximately 600,000 acre-feet of water. The impacts of
regulation would have been worse except that drought took over,
resulting in the driest March through May on record. Dr. David Sunding,
Professor of Agricultural and Resource Economics at UC Berkeley,
estimated the average statewide economic effect of protecting the
threatened delta smelt under the constraints imposed by the Eastern
District Court would exceed $1 billion and could eclipse $3 billion
through lost crops and more expensive water. While the potential
statewide impacts of these regulations is staggering, they in fact
impact regions differently, and disproportionately affected the San
Joaquin Valley's Westside agricultural region due to lack of
replacement supply and diminished transfer opportunities.
As a result of the water supply shortages manifested in early 2008,
water supply rationing was imposed in June by the CVP upon south-of-
Delta contractors and the water supply allocation was cut from 45% to
40%. These actions occurred in the heart of the Westside's growing
season and resulted in economic impacts estimated by Dr. David Sunding
to exceed $175,000,000 and 700 jobs in a matter of weeks. These impacts
were in addition to those that had already rippled through the region
as a result of the Eastern District Court constraints.
Lack of transfer water has caused districts and individual growers
to increase their reliance upon local groundwater and surface supplies.
Forecasted economic impacts indicate potentially significant effects
upon the region and State. The most recent analysis conducted by the UC
Davis Department of Agricultural and Resource Economics suggests that
the economic impact upon Central Valley agriculture due to 2009 water
supply reductions resulted in 21,000 lost jobs and reductions in income
exceeding $703 million. These findings are dependent upon an assumed
ability of farmers to increase groundwater pumping, which is locale
dependent and likely to increase production costs substantially.
Land fallowing along the Westside has exceeded 350,000 acre feet
and 500 square miles of highly productive land. Unemployment rates
through many parts of the Westside exceed Depression era levels. Food
lines are common in several rural Westside communities and need has
often outstripped the ability of the food banks to provide. Currently,
the Central Valley food bank is out of money. They have been serving an
estimated 30,000 people through the summer, which is traditionally the
best period for agricultural employment. Sadly, demand for social
services is peeking at a time when the ability of local and state
government to respond is also severely depressed due to the broader
global economic downturn.
Residents in the rural community of San Joaquin standing in relief
line to receive food imported from China.
The fact is regulatory impacts upon the CVP and SWP are affecting
more than just water supplies. Rural communities, big cities,
development, and environmental restoration are all being impacted.
Currently there is a large, concerted, and long overdue effort to
overhaul California's water supply infrastructure and regulatory
paradigm. However, many solutions lie too far out in the future and
cannot satisfy the critical and urgent need for meaningful improvements
now. Reforming the transfer provisions of the Central Valley Project
Improvement Act is one important and readily available tool.
Attachment 1: Letter* from Del Puerto Water District to the
Honorable Ken Salazar, Secretary of Interior.
---------------------------------------------------------------------------
* Letter has been retained in subcommittee files.
Senator Stabenow. Thank you very much for your testimony.
Mr. Candee, welcome.
STATEMENT OF HAMILTON CANDEE, ALTSHULER BERZON LLP,
REPRESENTING GRASSLAND WATER DISTRICT, SAN FRANCISCO, CA
Mr. Candee. Thank you very much. Thank you, Madame
chairwoman and members of the subcommittee. I appreciate the
invitation to testify before you today on S. 1759.
My name is Hamilton Candee. I'm a partner in the San
Francisco law firm of Altshuler Berzon. I'm appearing today on
behalf of the Grassland Water District which is a contractor of
the Central Valley project located in Merced County and a
beneficiary of water transfers in the CVP.
Grassland Water District is part of the larger Grassland
Resource Conservation District which encompasses approximately
60,000 acres of wetlands which is one of the most important
wetland complexes west of the Mississippi.
Grassland Water District delivers water to privately owned
wetlands as well as to neighboring state and Federal wildlife
refuge areas pursuant to a contract with the Bureau of
Reclamation.
Grasslands is also a participating organization within the
Central Valley joint venture. An entity that is specifically
referenced in the 1992 Central Valley Project Improvement Acts,
CVPIA, for its central role in promoting and facilitating the
acquisition of adequate water supplies for wetland habitat
including state and Federal wildlife refuges. In working on
this transfers bill we've been working closely with some of the
NGO's in the Central Valley Joint Venture including National
Audubon, California Audubon, Defenders of Wildlife and Ducks
Unlimited.
While Grasslands is supportive of the goals of S. 1759, we
believe certain changes are needed to ensure that there are no
unintended adverse impacts of the legislation on the refuge
supply issue and to reaffirm the importance of meeting the
goals of CVPIA with respect to wetlands and refuge areas. We
appreciate the encouragement we have received from the authors
of the legislation to provide suggested language improvements.
We look forward to working with the committee and with the
bill's co-authors to identify ways to address each of our
concerns.
My written testimony and the attachments set out a more
detailed statement of the predicament faced by Central Valley
Refuges and the importance of the water supply provisions to
address the ongoing predicament. In the interest of time I'll
be providing a short summary. I ask that the full written
statement be put into the record.
Between the 1850s and the 1950s the wetlands in the Central
Valley went from 4 million acres down to less than 300,000
acres. Things continued to get worse between 1950 and 1970.
Then when the drought hit in the 1970s the situation became
much, much worse.
During the latter part of the 1970s the greatly reduced
wetland water supplies and in some instances eliminated all
wetland water deliveries. The combination of drought and poor
wetland water supply reliability resulted in significant
impacts to wetland habitat and water bird populations. Partly
in response, the North American Water Fowl Management Plan was
enacted. That's what led to the Central Valley Habitat Joint
Venture that I mentioned.
Those groups worked together with Congress. In 1992 the
Central Valley Project Improvement Act was enacted. In summary
the CVPI was to provide key wetland basins with sufficient
water supplies for the purpose of achieving optimum habitat
management in all but the most critically dry years.
There have been several long term water conveyance like
contracts and agreements negotiated after the passage of CVPIA.
Unfortunately the original program of CVPI was to provide what
they call level 2, which is the historic water supplies and the
basic mitigation supplies that were expected for all of the
refuges, but also a level 4 supply. The difference was that
level 2 would be provided right at the outset when the bill was
passed and then level 4 would come in over time over 10 years
and it would be acquired through transfers.
Unfortunately the level 4 supplies have never shown up in
the full amount. I attached a chart at the end of my testimony
that shows what the level 4 supplies are supposed to be
according to Congress, according to the act in 1992. What
they've actually been delivered is far short of the actual
level 4 target.
Grassland Water District and the other organizations in the
joint venture, the NGO's will be providing separate written
comments. But I want to focus on 2 areas where we're concerned
there may be an impact from the transfer legislation, the goals
of the 1992 CVPIA with regard to refuges.
The first is we understand that it's the intent of the
authors to preserve all the existing protections of the Federal
and State environmental laws. But we feel that that issue needs
to be clarified. It's not 100 percent clear as you read through
the bill that all the protections that are already in the CVPIA
will be preserved.
We think there are different ways you could do that. You
can do it by amending section 2(a), by amending section 2(b) or
you could put in a separate stand alone provision. We're happy
to work with Senator Feinstein and Senator Boxer's staff and
the committee staff on what's the best way to accomplish that.
But we think this intent which apparently is implicit in the
intention of the authors needs to be made more explicit.
Second, we are concerned that the protection and
restoration of wetlands will become more difficult as a result
of this bill as it opens up the transfers market. There's more
demand for the transfers and the price goes up. The competition
to move that water around becomes more intense. There could be
negative impacts on the wildlife refuges. So there should be
one or more mitigation measures to try to address that.
One measure that we would recommend which is consistent
with the philosophy of the bill in terms of facilitating
transfers would be to make it easier for State and Federal
wildlife refuge managers to move water from one refuge to
another. You have this unusual situation now where some refuges
in the north will not need their full supply in a particular
year where some of the refuges in the south need a lot more
water. They would like to move the water from one refuge to the
other. But it's very hard to do that and sometimes what happens
is the water just ends up going back into the general pot and
being distributed to cities or farms without any attention
given to how you could move that water from one refuge to the
other.
It's actually--it's a doable thing. In fact even the
current contracts with the refuges anticipate that that would
be the first thing that you would do with any extra water. So
we'd like to propose language, if it's ok with the chair to the
subcommittee, to suggest how that could be accomplished as a
mitigation measure.
Senator Stabenow. We'd be happy to have that information
given to staff. Work with you on that.
Mr. Candee. Thank you very much.
The Wetlands of the Central Valley of California have
national and international significance. Are truly an important
resource for our state and country. The CVPIA Congress made
clear that these refuge areas need to receive an adequate water
supply through both level 2 and the level 4 programs.
While we support the goal of facilitating water transfers
that are at the heart of S. 1759, we urge the committee to
revise the legislation as needed to ensure that these
unintended adverse impacts to Central Valley Wetlands are
avoided and mitigation is provided.
Thank you.
[The prepared statement of Mr. Candee follows:]
Prepared Statement of Hamilton Candee, Altshuler Berzon LLP,
Representing Grassland Water District, San Francisco, CA
Thank you Madam Chairwoman and Members of the Subcommittee. I
appreciate the invitation to testify before you today on S. 1759, The
Water Transfer Facilitation Act of 2009, which is intended to
facilitate and expand voluntary water transfers in the Central Valley
Project in California. My name is Hamilton Candee and I am a partner in
the San Francisco law firm of Altshuler Berzon LLP. I am appearing
today on behalf of the Grassland Water District, which is a contractor
of the Central Valley Project (CVP) located in Merced County and a
beneficiary of voluntary water transfers in the CVP. Grasslands is a
participating organization within the Central Valley Joint Venture, an
entity that was specifically referenced in the 1992 Central Valley
Project Improvement Act (CVPIA) for its central role in promoting and
facilitating the acquisition of adequate water supplies for Central
Valley wetland habitat, including national and state wildlife refuges
and privately owned wildlife habitat. In its work on the proposed
transfers legislation, Grasslands has been coordinating its efforts in
particular with Audubon California and Defenders of Wildlife, and with
Ducks Unlimited and California Waterfowl Association, all founding
members of the Joint Venture. A recent brochure prepared by Joint
Venture members about Central Valley wetlands and the importance of the
CVP refuge water supplies is attached to my testimony.
While Grasslands is supportive of the goals of S. 1759, we believe
certain changes are needed to ensure there are no unintended adverse
impacts from the legislation and to reaffirm the importance of meeting
the goals of CVPIA with respect to wetlands and refuge areas. We
appreciate the encouragement we have received from the authors of the
legislation to provide suggested language improvements and we look
forward to working with the Committee and the staff to Senators
Feinstein and Boxer to identify ways to address each of our concerns.
My written testimony sets out a more detailed statement of the
predicament faced by Central Valley wetlands and the importance of
fully implementing the CVPIA's refuge water supply provisions to
address this ongoing predicament. In the interest of time I will be
providing a short summary of this testimony today but I ask that my
full written statement, including the attachments, be included in the
record of this hearing. Thank you.
Background
The loss of wetlands since the 1850s has been well documented by a
variety of publications and reports. Surveys in the 1850s estimated
there to be over 4 million acres of wetlands in California's Central
Valley. By the 1950s, expanding development decreased Central Valley
wetlands to an estimated 290,000 acres. Continued decline of Central
Valley wetlands occurred between 1950 and 1970. Water supplies for
managed wetlands during this period were not secure. Most managed
wetlands depended upon agricultural irrigation return flows, low-
priority water contracts, or non-binding agreements for their water
supplies. This situation continued during the 1970s until a severe
drought during the latter part of the decade greatly reduced wetland
water supplies, and in some instances, eliminated all wetland water
deliveries. The combination of drought and poor wetland water supply
reliability resulted in significant impacts to wetland habitat and
water bird populations, and in particular, wintering waterfowl.
Partly in response to this crisis, the North American Waterfowl
Management Plan (NAWMP) was enacted in 1986 and the Central Valley was
identified as one of the major focal points for addressing the needs of
North American waterfowl. The Central Valley Habitat Joint Venture
(CVJV) was formed in 1988. Based upon the findings of the subsequent
1989 federal Report on Refuge Water Supply Investigations, one of the
top priority goals of the CVJV became securing firm, reliable water
supplies for managed Central Valley wetlands. Several CVJV partners
worked closely with Congress to include wetland water supply provisions
within the Central Valley Project Improvement Act (CVPIA) of 1992. In
summary, the CVPIA was to provide key wetland basins with sufficient
water supplies for the purpose of achieving optimum habitat management
in all but the most critically dry years. To date, the CVPIA remains
the most important legislative action ever taken to protect and restore
Central Valley wetland habitat.
The CVPIA authorized and mandated that historic water supplies and
2/3 of baseline CVP mitigation requirements (collectively called
``Level 2'' supplies) must be provided by the Secretary of the Interior
from the Central Valley Project. In addition, the incremental water
supplies necessary for wetlands to operate at full habitat development
levels (known as ``Level 4'' supplies) were to be acquired through
purchase from willing sellers and provided in 10% increments per year
until 2002, when full water supply requirements were to be met. These
full water levels have not been achieved, due in large part to federal
and state budget shortages, inconsistency in the timing of water
deliveries, and increases in water costs on the spot market. This
shortfall has been a serious problem for Grassland Water District and
other federal and state wetlands in the Central Valley. As we analyze
the new proposed legislation, our goal is to ensure that the bill does
not inadvertently aggravate this shortfall by making it even more
difficult for Interior officials to carry out their Level 4 mandate, as
well as the related diversification goal of CVPIA that also depends on
transfers to succeed.
Since enactment of the CVPIA in 1992, delivery of water supplies of
adequate quality and quantity to public refuges and the privately-
managed wetlands of the Grassland Resource Conservation District (GRCD)
has improved wetland habitat quality and benefited many wetland-
dependent wildlife populations, including waterfowl, shorebirds,
colonial water birds, and several threatened and endangered species.
These benefits have been documented in annual reports to Congress and a
variety of studies and reports conducted by individual refuge units.
Several long-term water conveyance/supply contracts and agreements
were negotiated during the 1990s that increase the reliability of the
CVPIA water supplies to be delivered over the 25-year contract term.
However, water costs have also escalated as 2 water acquisitions to
meet CVPIA, urban, and agricultural needs resulted in a sharp increase
in spot market prices, further stressing limited budgets. Even if fully
realized, CVPIA's refuge water supply provisions did not resolve the
issue of firm and reliable supplies to all the NWRs, WAs and private
wetlands in the Central Valley. The CVPIA required the Secretary of the
Interior to investigate and report to Congress the water supply needs
for the remaining private wetlands of the Central Valley and those
lands included in the CVJV wetland restoration objective. This
investigation, known as the ``Central Valley Wetlands Water Supply
Investigations of December 2000,'' identified available water supplies
for existing private wetlands and water supply requirements to meet the
wetland restoration goal of the CVJV 1990 Implementation Plan.
We strongly believe that the refuge water supply provisions are
among the Act's greatest achievements to date. Vast increases in
restored wetland acreage, seasonally flooded spring and summer habitat,
bird use numbers on Central Valley wetlands, and increases in non-
waterfowl wetland dependent species are but a few examples of what the
CVPIA has already accomplished. Despite these successes, we are
concerned that this recovery cannot be fully realized without the
Bureau of Reclamation being given the resources to meet their statutory
Level 4 refuge water supply obligations, and could be further impacted
in future years due to the rapid increase in water costs and increased
competition for CVPIA Restoration Fund dollars. I am attaching a chart
that shows the shortfall in Level 4 deliveries, and how that shortfall
has increased in recent years as the spot market price of water has
gone up.
The Water Transfers Legislation
Grassland Water District and several of the individual
organizations within the Joint Venture will be providing written
comments in the days ahead making specific suggestions for changes to
the legislation to prevent adverse impacts to wetlands. For example,
some of these comments will focus on clarifying the provisions of
Section 3 of S. 1759 to ensure that the call for expedited
environmental review does not create unintended consequences; others
will address the concern that Section 2's expanded exemption from CVPIA
not allow for ``paper water'' transfers by which a particular district
might try to sell water that it is not currently using, water which in
fact may be in use by other water users or wetland areas.
In my present testimony, I wish to draw the Subcommittee's
attention to two particular problems, which we believe are easily
solved without causing any harm to the goals of the bill. First, we
understand it is the intent of the authors of the legislation to
preserve existing protections of federal and state environmental laws
that are otherwise applicable to water transfers, with the sole
exception of the expanded exemption in subsection 3405(a)(1)(m) of the
CVPIA as provided in Section 2 of the present bill, and the directive
for programmatic environmental reviews in Section 3 of the bill.
Unfortunately, because of the structure of the legislation, especially
its status as a standalone bill rather than an amendment to CVPIA, this
intention is not as clearly reflected in the legislation as it should
be. In particular, we believe the numerous protections for wetlands and
refuge water supplies provided in the CVPIA must be clearly reaffirmed
as conditions on the newly expanded transfers authorized by this
legislation. We believe this 3 can be easily achieved in different ways
(for example, by revisions to either Section 2(a) or to Section 2(b))
and will be submitting proposed language under separate cover to make
clear that, just as the San Joaquin River Settlement is now protected
in the current version of S. 1759, all other applicable provisions of
federal and state law, including but not limited to NEPA, the
Endangered Species Act, the CVPIA and state water transfer laws, are
also fully preserved.
Second, we are concerned that the protection and restoration of
wetlands under CVPIA will become more difficult as a result of the
measures provided in this bill and, therefore, believe one or more
mitigation measures are needed to help counteract this unintended
adverse impact. This impact will result from the reduction in available
water for acquisition by refuges, the increasing market price for
acquired water as more buyers are seeking that available water, and
potentially through increased priority placed on water supply transfers
authorized by this bill. To help counteract this adverse impact, our
recommendation is to include language within the bill to facilitate and
expand a particular kind of voluntary transfer that will assist wetland
areas, specifically language that facilitates transfers from one refuge
area to another.
We believe this language will also help reduce costs to the Federal
Government, assist Interior in meeting its existing CVPIA obligations,
and encourage efficient use of refuge water supplies by federal, state
and private wetland managers. While some may believe that Interior and
its refuge customers already have the ability to accomplish such
refuge-to-refuge transfers, the fact that they are not at all common
and that refuge water in the Sacramento Valley that is not needed in a
particular year is returned to the CVP for general delivery to urban or
agricultural customers before the water supply needs of other CVPIA
refuges are met, indicates that further authority and direction from
Congress is needed. We would note that this mitigation provision would
not only help Interior meet its Level 4 obligations, it would also help
promote the diversification of Level 2 supplies, which requires more
surface water supplies to be successful. Again, in the coming days we
and other organizations within the Joint Venture intend to provide the
Committee with specific language proposals to accomplish this
straightforward mitigation concept within the structure of S. 1759.
Conclusion
The wetlands of the Central Valley of California have national and
international significance and are truly an important resource for our
state and country. In the CVPIA, Congress made clear that these refuge
areas need to receive an adequate water supply through the combined
Level 2 and Level 4 programs. While we support the goal of facilitating
water transfers that is at the heart of S. 1759, we urge the Committee
to revise the legislation as necessary to ensure that unintended
adverse impacts to our Central Valley wetlands are minimized and to
ensure that refuge-to-refuge transfers are specifically authorized to
provide mitigation for the inevitable impacts that are caused.
Senator Stabenow. Thank you very much to both of you for
your testimony. We'll turn to questions now.
First, Mr. McIntyre, welcome again. In general your
testimony is supportive of the provisions of S. 1759. Do you
think there are more areas in which we could facilitate
transfers between the east side and the west side water
districts and improve the water transfer process?
Mr. McIntyre. I do, Madame Chair. I would encourage and
have invited the Bureau of Reclamation to engage in workshops
to identify and distinguish between practice and protocol and
statutory requirements.
We believe that we could substantially expedite the
transfer of water supplies if we did a comprehensive re-
visitation of past practices and determine which of those are
required by law, which are appropriate and which are
unnecessary. While at the same time exercising due diligence to
comply with both state and Federal environmental laws.
Senator Stabenow. Thank you. Speaking of environmental
laws, other than the Endangered Species Act which I know we
have heard concerns about. Are there other factors that
contribute to a decreased water supply for irrigators in the
district?
Mr. McIntyre. There have been a series of decisions all
intended to shore up a declining delta habitat and delta
species set. But those are goals and objectives that I believe
Mr. Candee and I would strongly agree on. It's the approach
that has been taken by virtue or by virtue by the way the
Endangered Species Act is written that allows what we believe
to be the more significant causes of the decline of the delta
to remain unaddressed. While the focus remains on the state and
Federal water supply pumps which surely are not responsible for
the introduction of invasive species or the collapse of the
food web on which all those species, important native species,
depend.
So as I mentioned earlier we encourage the National Academy
of Sciences review of the recent biologic opinions in an
expanded view of the delta and how to resurrect it, species and
habitat. We do not believe that will occur without a
comprehensive view and the introduction of the best and most
currently available science.
Senator Stabenow. Thank you very much.
Mr. Candee, in your testimony you indicated that you're
concerned about the protection and restoration of wetlands.
That would be more difficult as a result of certain measures in
the bill. I wonder if you might speak further because how would
enactment of the bill result in a reduction in available water
for acquisition by the refuges?
You've talked about the refuges somewhat related to that,
but and an increased market price for the acquired water.
Shouldn't the opposite be true that an additional supply of
water would result in lower prices?
Mr. Candee. Actually it appears that one of the effects of
the bill could be to increase the demand, but not necessarily
the amount of water that's available. So for example the, right
now there are certain contractors who are able to access water
that's put on the market. I think one of the goals of the bill.
I think the authors are quite clear, is to make it easier,
broaden that group.
For example in CVPIA those 2 provisions that are referenced
in section 2 are exempted only for a very limited group.
There's a very limited exemption. What section 2 of the new
bill does is broaden that to all of the south of delta
divisions in the CVP.
So clearly that will enable more people to compete for that
same block of water since right now the Interior Department is
currently one of the people in the market, one of the groups in
the market, trying to acquire water to meet its obligations for
refuges. It just seems logical that that will increase the
demand and increase the price. If you look at that chart at the
end of my testimony, it shows that as the price was going up
the supply for the refuges was going down. I think there's a
limited amount of money that's been made available.
One of the things that Grasslands and other groups have
asked for is additional funding support for acquiring that
water. I understand earlier this week the state legislature
also finally kicked in some State money for that as well.
Senator Stabenow. Thank you very much.
Senator Bennett.
Senator Bennett. Thank you very much, Madame Chairman.
Mr. McIntyre, let's talk about the pumps. Even if the
legislation were passed how much impact would these transfers
have in meeting your needs if there are no changes made in the
pumps?
Mr. McIntyre. Proportionately speaking it's a relatively
limited benefit compared to returning the pumps to their prior
permitted capacity. Even if we just go back 2 years ago.
Essentially in the past 2 years we've lost.
There may be some dispute in these numbers. But not clearly
is there any dispute on the order of magnitude. Our average
reliability 2 years ago, 2 \1/2\ years ago, was roughly 65
percent of our contract amounts. Today best modeling efforts
appear to indicate that we're at 35 percent with much greater,
more likely occurrence of very low allocations from 0 to 10
percent at which point essentially all of the permanent
cropping and many of the business enterprise on the west side
will collapse. There is simply insufficient transfer water
south of the delta available to sustain those crops in a 0 to
10 percent environment.
Senator Bennett. Alright. So your economy and your crops
are threatened. How much of that threat comes from red tape or
environmental considerations and how much of it comes from the
physical ability to deliver the water?
If the red tape were to be resolved could the water be
delivered? Is the water available? Could it be there in a
timely fashion?
Mr. McIntyre. If I could refer you back to the map. At the
left hand side or the upper end of the map, above that point
resides the Sacramento San Joaquin River Delta System,
otherwise known as the Bay Delta. The primary reason that we
cannot move water through those facilities is not as a
consequence of the facilities themselves, but the environmental
constraints.
Senator Bennett. It's not a technical problem.
Mr. McIntyre. Correct. Correct, it is. So your question is
difficult to answer directly because there is the physical
capacity to return our average supply to 65 percent. It is the
environmental constraints imposed by the recent smelt and
salmon biologic opinions that have further restricted the
operation of the pumps.
Senator Bennett. So it's our concern for the smelt that is
causing the unemployment, driving out of people from their
homes and their jobs and so on. It isn't the drought.
Mr. McIntyre. In all fairness to----
Senator Bennett. I'm not saying the concern of the smelt is
right or wrong here. But I'm just wanting to see where the
water is really----
Mr. McIntyre. Yes.
Senator Bennett [continuing]. Why the water is really being
held up.
Mr. McIntyre. I understand. The water is being held up as a
consequence of a combination of drought. Although we had near
average precipitation this year and a 10-percent CVP water
supply allocation.
But as to the fairness issue the delta is in serious
crisis. The issue we take with the response to that crisis is
that the focus has been pump centric. In other words,
notwithstanding all of the many other factors causing delta
habitat and food chain decline the pumps are the vehicle that
has been subject to a media restrictions.
We think, frankly, that you could shut the pumps off all
together and we would continue to see decline of the smelt and
other species in the delta because of the collapse of the food
web and toxic intrusion into the delta.
Senator Bennett. So just so that I understand exactly what
I think you're saying. The delay in delivering the water and
the fact that they're getting only 10 percent is more of a
regulatory factor than it is a physical factor. You have
average rainfall.
But you're getting only 10 percent of the water in the
place where it's desperately needed because of delays based on
regulation rather than any physical inability to deliver the
water. Is that a safe summary of what you're telling me?
Mr. McIntyre. That's generally true, yes.
Senator Bennett. I see. Thank you very much.
Senator Stabenow. Thank you, Senator Bennett.
Senator McCain.
Senator McCain. Do you have any response to the colloquy
that just took place between Mr. McIntyre and Senator Bennett?
Mr. Candee. Grassland Water District didn't ask me to come
here to talk about those particular issues, but I understand--
--
Senator McCain. Alright, then never mind.
Mr. Candee. I do have----
Senator McCain. I'll talk to Mr. McIntyre, then. I was just
giving you the opportunity. If you don't want it----
Mr. Candee. As an individual can I just make one comment?
Senator McCain. Sure.
Mr. Candee. That is both the state government and the
Federal Government earlier this year issued written statements
that it's really more the drought than any regulatory
restrictions that has caused any of the water cutbacks this
year. I think one of the interesting things is earlier this
week the state legislature finished 2 months of unbelievable
work trying to come together on a delta package. What's
interesting is that you had farmers and environmentalists
working together.
You had legislators from the north and the south. You had
Democrats and Republicans. It was very difficult for them to
come to agreement. But they were trying to come up with a
package of bills to go with a lot of these issues.
Finally after an all night session they did reach
agreement. So I think that's a pretty interesting development.
Senator Feinstein referenced that earlier.
Senator McCain. Thank you. Also unfortunately the state is
not empowered to address some issues such as the Endangered
Species Act and others that are Federal law.
Mr. McIntyre, is it true that 500,000 acres or nearly so
were fallowed this year, that 13 percent of our Nation's food
supply and it's believed to have cost about 40,000 jobs in
these rural farming communities which already had a 40 percent
unemployment rate? Are those numbers pretty accurate?
Mr. McIntyre. Excuse me. I believe they are generally
accurate. I can speak specifically to the 500 square miles of
fallowed ground. We believe it's in excess of that number and
chose one that was easily defensible.
I believe that cumulatively over the past 2 years as a
consequence of continuing declines in water supplies that we're
seeing close to 40 percent unemployment in some of the smaller
communities in those rural areas. Tremendous hardship, human
hardship, as you might imagine associated with that.
Senator McCain. So really what we're doing is maybe not
endangering the existence of human beings, but certainly we are
endangering their way of life that, as I understand, is
multigenerational. Is that correct?
Mr. McIntyre. I believe that that is undeniable.
Senator McCain. So the 6-month study that was enacted in
the Interior Appropriations bill is not much comfort while we
await a 6-month review of the biological opinions by the
National Academy of Sciences. Is that really comforting for the
farmers and their families out there?
Mr. McIntyre. We are grateful for any opportunity to
revisit, in any manner, the biologic opinions including the
National Academy of Science studies provided that the
appropriate questions are submitted to the Academy.
Senator McCain. Would that provide any short-term relief
for the families?
Mr. McIntyre. It will not provide relief for this coming
water supply year as best as we can tell.
Senator McCain. What if we passed an amendment to suspend
the biologic opinions for 1 year. Would that have helped?
Mr. McIntyre. Yes, I believe it would.
Senator McCain. As you know that was voted down as an
attempt to do so the Administration spent over $400 million in
stimulus money to help modernize California's water
infrastructure including $40 million by the Bureau of
Reclamation to help Central Valley farmers. Has any of that--
has any benefit from this spending been realized?
Mr. McIntyre. Not to this point. But they are moving
aggressively with the $40 million projects which essentially
are ground water related projects. We do have numerous shovel
ready projects that we believe would be exceptional candidate
for stimulus money should those funds be returned or deemed
inappropriate for some of the original applicants.
We stand in line, hat in hand, eagerly waiting any analysis
of that matter.
Senator McCain. It's a human tragedy that I visited out in
your part of the country. Even been on several occasions, even
before it got this serious. You know it really does seem that
at least in the short term we may have our priorities upside
down here when you have 40,000 jobs and a way of life
disappearing.
I will match my environmental record against anyone. But
I'm not sure that those people who voted for the Endangered
Species Act and other acts intended that the consequences would
be unemployment as high as 60 percent as a direct result of it.
I don't know what can be done, Mr. McIntyre. But I think we owe
the people there at least some straight talk.
That is that the environmental community has more influence
here than those 40,000 families who have lost their jobs. They
ought to be told exactly what the prospects of them ever
regaining their former way of life. What has sustained not only
them, but 13 percent of America's food supply. At least we owe
them that.
I wish the Administration would be more forthcoming in
telling them exactly what they can expect in the months and
years to come. So far I don't think that's the case. So I
extend my thanks to you for your service. I extend my sympathy
to the families who what, 5, 6 generations have farmed out
there and done so much for America.
But there are some of us who will continue to try to get
you relief rather than lip service even if we're unsuccessful,
we won't quit trying. Thank you, Madame Chairman.
Senator Stabenow. Thank you, Senator McCain. Finally I
would just have a question for each of you.
First of all, Mr. Candee, would waiving the Environmental
Species Act provide additional water to the farmers that we're
all concerned about?
Mr. Candee. You know it's interesting. Governor
Schwarzenegger's top water official wrote a letter recently to
the Senate saying that they did not support that as an
emergency relief measure. I think part of the reason both the
Republican Administration and the Democratic leadership in the
State Legislature focus so much on the recent delta
legislation, the package of water bills that just passed, is
because they want to look at solutions that are really going to
work on the ground.
So I think there's not a big cry for waiving Federal
environmental laws. I think the hope is that's there's going to
be progress on the State legislation moving forward.
Senator Stabenow. Mr. McIntyre, could you speak to the
positive aspects of S. 1759 in terms of ways that you believe
this will help the situation which obviously is a crisis.
Mr. McIntyre. Yes, thank you for that question. We believe
that solutions to our current dilemma, dire though it is in the
current environment, and I mean that the physical environment
and the political environment necessarily must be incremental
in nature. We consider this to be an important incremental step
in helping us bridge the gap between our 10 percent water
supply allocation and a time during which we will see a more
comprehensive and realistic delta restoration plan that doesn't
unduly focus on the state and Federal water pumps which are the
lifeblood of the state.
So I'm very grateful for this bill to put it in shortest
form.
Senator Stabenow. Thank you very much.
Senator Bennett.
Senator Bennett. Just one last quick question. Has this
affected farmer's ability to get financing on their crops?
Mr. McIntyre. You know, you must have some background in
agriculture. One of the extraordinary parts of farming is that
most farmers are ``all in'' as the term goes every year. They
hock land and equipment and other assets in order to gain loans
for purposes of buying this very expensive supplemental water,
for buying seed, for buying fertilizers.
Yes, indeed, I am fielding an increasing number of calls
from lending institutions looking for some confidence that if
they loan the money the water will follow. That discussion is
becoming increasingly difficult. It is the first critical chalk
stone that gets kicked out of the viability of agriculture is
the inability to obtain Ag loans for each year's startup.
Senator Bennett. Thank you very much, Madame Chairman.
Senator Stabenow. Thank you very much. Thank you to both of
you for traveling here and for speaking about this important
legislation. I'd like to note that the subcommittee has
received additional written testimony on the bills before us
today. That testimony, as well as written submissions from our
witnesses today, will be made part of the official record.
Senator Stabenow. For the information of Senators and
staff, questions for the record are due by close of business
tomorrow.
Without further questions this hearing is adjourned.
[Whereupon, at 3:50 p.m. the hearing was adjourned.]
APPENDIXES
----------
Appendix I
Responses to Additional Questions
----------
Responses of Michael L. Connor to Questions From Senator Stabenow
s. 1759
Question 1a. Your testimony indicates that the Bureau of
Reclamation is currently working with the State of California to
develop evaluation criteria for a long-term, programmatic water
transfer program.
Is that the program that Reclamation will request consultation on
with the Fish and Wildlife Service? Will that result in a programmatic
biological opinion that covers water transfers throughout the Central
Valley Project?
Answer. Reclamation is working with the State of California to
obtain a programmatic biological opinion covering transfers from
Federal and State contractors located north of the Delta to contractors
south of the Delta. This process will involve consultation with the
U.S. Fish & Wildlife Service (FWS) as well as the National Marine
Fisheries Service after which programmatic biological opinions will be
provided by those agencies. These biological opinions will cover
transfers from North of Delta to South of Delta contractors but they
will not cover water transfers between contractors who are both located
South of Delta which S. 1759 addresses.
Question 1b. How long do you anticipate it will take for
Reclamation to have the biological assessment for the water transfer
program completed?
Answer. The Bureau of Reclamation (Reclamation) is working towards
the goal of issuing the final biological assessment in the spring of
2011.
Question 1c. Your testimony indicates that the Fish and Wildlife
Service could potentially expedite a programmatic biological opinion
subject to the availability of appropriations--what additional
appropriations will be required?
Answer. The FWS allocates its Endangered Species Act funding based
on a number of factors that help determine the priority of projects or
office needs. If other projects are no longer going to be carried out,
it may be possible to reallocate or reprogram these resources to help
expedite the programmatic biological opinion.
Question 2a. Your testimony indicates that Reclamation has already
approved water transfers covering over 400,000 acre-feet of water this
year.
Can you provide the committee an accounting of those transfers?
Answer. To date in the 2009 Water Year, transfers among CVP
contractors north of the Delta amounted to approximately 105,230 acre-
feet. Transfers south of the Delta among CVP contractors accounted for
246,739 acre-feet on the Westside of the San Joaquin Valley and
approximately 83,317 acre-feet within the Friant Division.
Question 2b. Is the programmatic environmental documentation that
was used to evaluate those transfers still in place and available for
use to review future transfer applications?
Answer. Yes. These transfers are accomplished pursuant to 3
programmatic environmental documents, each of which covers a period of
5 years. Reclamation obtains updated programmatic environmental
documents upon the expiration of the existing documents, and these
documents are available for transfers occurring within the relevant 5-
year timeframe.
Question 3a. Section 2 (a)(2) relates to transfers of water among
several different categories of contractors but requires that the
transfers occur within a Central Valley Project division.
Does this provision relate to transfers that would occur both north
and south of the Delta as long as the transferred water remains within
a particular division?
Answer. Yes. The ``North of the Delta'' category includes the
American River Division, Sacramento River Division, and Eastside
Division (San Joaquin River tributaries). The ``South of the Delta''
category includes the Friant and Delta divisions; the San Felipe and
San Luis units comprise the Delta Division.
Question 3b. Under this provision, if a potential transfer will not
remain within a division, would it still be subject to the entire,
existing list of requirements under the Central Valley Project
Improvement Act?
Answer. Section 2(a)(2) must be read in conjunction with section
2(a)(1). Taken together, only those transfers of CVP water from North
of the Delta to South of the Delta would still be subject to all
Central Valley Project Improvement Act requirements.
Question 3c. Does this provision of the legislation enable
transfers of water from north of the delta to south of the delta?
Answer. This legislation does not change the status quo with
respect to transfers of CVP water from North of the Delta to South of
the Delta. Currently, water may be transferred from North of the Delta
to South of the Delta upon a showing that the water was made available
for transfer through a savings in consumptive use or groundwater
substitution.
Question 3d. Can Reclamation provide an inventory of the various
types of contractors that fall into those categories?
Answer. Reclamation's Mid-Pacific Region has approximately 104
current water service contractors whose capital repayment and charges
for operations and maintenance are factored into their water service
rate. Three of these 104 contractors have separate water service and
capital repayment contracts. In addition, there are145 settlement
contractors, and 4 exchange contractors. There are approximately 11
former temporary water service contractors. CVP contractors are listed
on the internet with the CVP ratebooks at http://www.usbr.gov/mp/
cvpwaterrates/ratebooks/index.html
Question 4a. Your testimony indicates that if S. 1759 is enacted,
Reclamation will develop administrative guidelines to ensure that
transfers take place without significant adverse impacts to other water
users, federal programs, Indian tribes, Central Valley Project
operations or the environment--are these criteria consistent with the
criteria that are currently used to evaluate water transfers within the
Central Valley Project--or are they new criteria that would be
developed through the new guidelines?
Answer. These criteria are consistent with criteria currently used
to evaluate water transfers.
Question 4b. How quickly would Reclamation be able to develop these
administrative guidelines?
Answer. If this legislation is passed, Reclamation will have the
guidelines in place for the 2010 Water Year.
Question 4c. Will these guidelines ensure that third parties such
as the Hoopa tribe will not be adversely impacted by the transfers
facilitated by this legislation?
Answer. The goal of the guidelines would be the prevention of any
adverse impacts to third parties. The guidelines will require that all
environmental documentation be completed prior to transfer approval.
This documentation must address third-party impacts.
Question 4d. Will these criteria ensure that the interests of the
wetlands and the Bay Delta are not adversely affected?
Answer. It would be the goal of the guidelines to prevent adverse
effects to wetlands and the Bay Delta. The guidelines will require that
all environmental documentation be completed prior to transfer
approval. This documentation must address environmental impacts to the
Bay Delta and wetlands, among other issues.
Question 5. Regarding the water acquisitions currently required by
Section 3406 of the Central Valley Project Improvement Act for wildlife
refuges, will enactment of S. 1759, help, harm or have no effect on
those acquisitions?
Answer. Reclamation does not have information as yet to determine a
positive or negative effect on the refuges. Market forces, hydrology
and other variables come to play on refuge water supplies, particularly
Level 4, but we anticipate that this legislation will have no effect
upon acquisitions of water for refuges. Reclamation could use this as
an opportunity to facilitate transfers between CVP contractors and the
refuges, and also between refuges. Facilitating these transfers could
have mutual benefits to both the contractors and the refuges.
Question 6. Your testimony indicates that it is difficult to
calculate the financial impacts of S. 1759, but can the Administration
ensure that it will be administered in a way that revenues for the
environmental restoration fund will be protected?
Answer. Payments to the Restoration Fund are required for all water
delivered to a CVP contractor, including water which is transferred.
There should be no adverse impact to these collections, and if
anything, collection could increase to the extent water transfers
result in increased deliveries of water.
questions regarding the drought conditions in california
Question 7. Please describe the factors that contribute to the
decreased water supply available to water supply contractors within the
Central Valley Project? For example, how much have the drought and low
reservoir supplies contributed to the reduction in water supplies?
Answer. The 2009 Water Year represents the third consecutive year
of dry conditions in the Central Valley. The result was decreased
runoff to all the major river systems and lower than normal contract
allocations for many CVP water service contractors. CVP exports South
of the Delta were further limited due to new fishery protections
required by the 2008 FWS Biological Opinion. For the 2009 Water Year,
approximately 75 percent of the reduction in the combined exports of
the CVP and State Water Project (SWP) was related to low runoff, and
the remaining 25 percent was attributable to the new delta smelt
protections under the FWS biological opinion.
Question 8. Attempts have been made to try to prevent the
application of the Endangered Species Act within the Bay Delta system -
would the Administration support those efforts? What would the
anticipated consequences be if such a provision were to be adopted?
Answer. The Administration is not in favor of suspending
application of the Endangered Species Act (ESA). We are currently
collaborating with the National Academy of Sciences (NAS) to help them
research whether there are any ``reasonable and prudent alternatives''
(RPAs), that, based on the best available scientific data and analysis,
(1) would have lesser impacts to other water uses as compared to those
adopted in the FWS' and National Marine Fisheries Service's biological
opinions, and (2) would provide equal or greater protection for the
relevant fish species and their designated critical habitat given the
uncertainties involved. We will thoroughly review and consider the
analysis, conclusions, and recommendations from the NAS report and use
that information as we continue to work with partners to address the
drought that California is facing.In addition, the Administration is
supporting the expedited review of and, if feasible, construction of
projects such as the Intertie that may provide new water supply
reliability benefits to CVP and SWP customers. The Administration
believes that strong potential exists to improve water supply
reliability while protecting endangered and threatened species. These
twin goals have been achieved in many other river basins across the
West. Suspending application of the ESA could result in irreparable
harm to the Bay-Delta ecosystems when alternative solutions exist and
are being sought.
Question 9. There are a lot of factors that contribute to the
health of the Bay Delta--what is the Administration doing to protect
and stabilize the situation? For example, the Department of the
Interior, collaborating with the Department of Commerce, is
commissioning the National Academy of Sciences to conduct a study with
respect to the biological opinions relating Delta. What are the
Administration's plans for implementing the recommendations of the NAS
study?
Answer. The Administration is supporting ongoing efforts to improve
our understanding of the Bay-Delta ecosystems and our management of
human uses of the system. We support the National Academy of Sciences
(NAS) review of the implementation of the biological opinions governing
Central Valley Project and State Water Project operations. The NAS has
extraordinary public respect and is the right independent entity to
conduct this review. Both the Department of the Interior and the
Department of Commerce have sought to structure the NAS review to
ensure that its findings and recommendations address the most pressing
management questions and are implementable. The Administration plans to
follow-up on all recommendations that are likely to improve the
concurrent management of the Bay-Delta ecosystems and water project
operations.
The Administration supports the ongoing development of the Bay
Delta Conservation Plan, which potentially may frame future water
project operations in a system of habitat and ecosystem conservation
measures that are being designed to contribute to the recovery of
endangered and sensitive species and ecosystems while also improving
the reliability of water supplies. The Administration also supports the
ongoing Pelagic Organism Decline (POD) investigation. The POD
investigation is a collaborative effort of 6 Federal and 3 State
agencies to determine why multiple open-water Delta fish species
populations declined sharply after 2001. The POD investigation has
uncovered evidence suggesting that multiple factors, including food web
changes, toxic chemicals, and water project operations have each
contributed to the historical declines of these species. The
Administration is committed to fully exploring all factors that may be
contributing to excess mortality of endangered and sensitive species,
so that important initiatives like the Bay Delta Conservation Plan can
benefit from the best available science.
Question 10. In the interim, while the NAS study is being
conducted, are there other measures that can be taken to help alleviate
the drought conditions? Please describe the efforts the Administration
is undertaking to address the drought conditions in California?
Answer. Please see attached fact sheet.
Question 11. There has been discussion about legislation to address
specific endangered species in other states, such as the silvery minnow
in New Mexico. Can you describe that situation and the actions taken by
Congress, and explain whether that situation is applicable to the
current situation in the California Bay Delta?
Answer. Some argue that an ESA exemption was used earlier this
decade to address an ESA-water rights crisis, similar to the one in the
CA Central Valley, in the Middle Rio Grande involving the endangered
Rio Grande silvery minnow. The legislative language in question,
attached to the 2004 Energy & Water Appropriations bill, P.L. 108-137,
Section 208 (2003), provided protection from legal challenge to a 2003
FWS biological opinion (BiOp) addressing the impacts of Reclamation's
Middle Rio Grande water operations on the endangered silvery minnow. In
other words, the silvery minnow rider called for compliance with the
Endangered Species Act through compliance with the biological opinion.
As such, the water project is in compliance with the ESA only so long
as there is full compliance with the BiOp. The silvery minnow rider
created added incentives for all stakeholders to take the actions
necessary to protect the silvery minnow, because if they don't follow
the BiOp, the rider's protections disappear.
The silvery minnow situation stands in stark contrast to
legislative proposals to exempt the Central Valley water project from
the Endangered Species Act, to operate it without a Biological Opinion
of any kind, or to reinstate biological opinions that have already been
determined to be scientifically insufficient by the Federal District
Court. Whereas such proposals would eliminate the ESA's protections for
the listed species, the silvery minnow rider implemented the ESA's
protections for the minnow by reaffirming the BiOp.
The second part of the minnow rider eliminated the Secretary's
discretion to unilaterally reallocate San Juan-Chama (SJ-C) project
water away from Reclamation contractors to provide flows for the
silvery minnow. The SJ-C is a trans-basin diversion that diverts water
from the San Juan Basin and delivers it to the Rio Grande basin in New
Mexico where it supplements the water supply available to sustain the
minnow. Since the use of this water (an imported supply) was not
responsible for degrading the minnows' habitat, Congress decided it
should not be reallocated to provide flows for the minnow absent a
willing seller arrangement. No similar protection was provided for
native Rio Grande water.
The silvery minnow BiOp contained an incidental take statement that
required reconsultation should the amount of minnow mortality exceed an
established limit. To this date, no such reconsultation has been
necessary because minnow mortality has not exceeded the limit
established by the BiOp. Consistent with regulations for all Biological
Opinions (50 CFR Sec. 402.16), reinitiation of the silvery minnow BiOp
may also be triggered if (a) new information reveals effects of the
agency action on listed species or critical habitat in a manner or to
an extent not considered in the BiOp, (b) the agency action is
subsequently modified in a manner that causes an effect not considered
in the BiOp, or (c) a new species is listed or critical habitat
designated that may be affected by the action. The silvery minnow BiOp
also specified additional reinitiation requirements specific to this
consultation. These include required reinitiation if any of the
following occurs: (a) deviations from any environmental commitments,
(b) densities of silvery minnows fall below current levels in the
Angostura Reach, (c) no ``wet years'' (as defined in the BiOp,
excluding years in which Compact Article VI or VII storage restrictions
are in place) occur within 6 years of the BiOp issuance, or (d) a net
loss of southwestern willow flycatcher habitat.
Responses of Michael L. Connor to Questions From Senator Bennett
s. 1759
Question 1. We are disappointed that the State of California was
not able to testify today regarding this bill----
Can you generally describe the relationship or interactions between
the Bureau of Reclamation and the State of California relating to the
transfers process?
Answer. Reclamation and DWR work together on a daily basis to
coordinate the joint operations of the CVP and SWP. Reclamation and DWR
worked cooperatively on the 2009 Drought Water Bank and have undertaken
the joint development of programmatic environmental documentation and
guidelines to cover north to south transfers on a long-term basis.
Reclamation and DWR use the combined export capacity of the two water
projects to take maximum advantage of transfer windows for all north to
south transfers.
Question 2. Can you please describe what Reclamation's current
process is for review of an application to transfer water from one
district to another? How will enactment of S. 1759 speed the process
up?
Answer. A written application describing the entire transfer
transaction is submitted to one of Reclamation Mid-Pacific Region area
offices. Reclamation then prepares a reimbursable agreement and upon
receipt of the requested deposit, Reclamation begins evaluating the
transfer in accordance with the CVP Water Transfer Guidelines. The
transferor's (seller's) request must include, where appropriate, a
description of how the water to be transferred is being made available,
as well as a description of the facilities to be used, and the timing
of the conveyance of the water, the name of the transferee (buyer). If
the transfer is not covered by an existing programmatic environmental
document, appropriate environmental documentation, including ESA
compliance, must be prepared before approval. The area office
determines if additional costs for the use of additional facilities
must be collected. If the transfer is approved, an approval letter is
then sent to the transferor district. S. 1759 will speed up the process
by mandating additional programmatic environmental documentation be in
place, reducing the time needed to develop such documentation on an
individual basis, and by eliminating the need for conclusive proof that
the water for transfer was made available through savings in
consumptive use. As always, transfers will still be subject to the
availability of capacity through a combination of CVP and SWP
facilities.
Question 3. Does Reclamation have any way of quantifying the amount
of additional water that may be available to be transferred to some of
the water districts that are currently suffering from a lack of water
if this legislation is enacted?
Answer. The quantity of water considered for transfer varies
significantly from year to year. It depends upon several factors, many
of which are beyond the control of Reclamation. Hydrologic conditions,
commodity prices, and availability of Delta pumping capacity are a few
of these conditions.
Question 4. Do you know the percentage of districts that have a
groundwater supply available to supplement the surface water supply?
Can you provide any estimate of the amount of groundwater pumping that
may occur in any given year?
Answer. Overall, Reclamation estimates that approximately 65
percent of CVP contracting districts have a groundwater supply
available to supplement surface water supply (counting only those
districts that have wells that can pump in excess of 1,000 acre-feet
per year).
Question 5. President Obama recently signed the Energy and Water
appropriations bill that contains short term provisions that are
similar to the provisions in S. 1759. What has Reclamation done to
implement that new law? Would Reclamation do anything differently to
comply with S. 1759 if it is enacted?
Answer. Reclamation is unaware of any transfer applications made
since the enactment of the appropriations bill so we have not had the
opportunity to implement the new law. If S. 1759 is enacted,
Reclamation will undertake preparation of the programmatic
environmental documentation for transfers from the eastside to the west
side of the San Joaquin Valley.
Question 6. One of the requirements of Section 4 of the bill is
that Reclamation must submit updated reports to Congress regarding the
water transfer program until the Commissioner ``determines that no
further Federal action would be warranted or authorized''--How will
Reclamation make that determination?
Answer. Reclamation would make this determination on the basis of
whether new water transfer applications are still being submitted and
the environmental documentation called for in this Act is in place.
Question 7. Is the current infrastructure in California able to
handle the increased transfers as envisioned in this bill or will new
connections need to be built--pipelines, interties, etc?
Answer. Reclamation does not envision that new infrastructure will
need to be constructed as a direct result of this legislation.
Question 8a. Could the San Joaquin River be utilized to move
transferred water? What impact does the San Joaquin River Settlement
have on potential water transfers?
Could the San Joaquin River be utilized to move transferred water?
Answer. Yes, the river could be used to transfer water. However, a
permit from the State Water Resources Control Board for an additional
point of diversion on the San Joaquin River would be required to
transfer project water out of Millerton Lake.
Question 8b. What impact does the San Joaquin River Settlement have
on potential water transfers?
Answer. There would potentially be limited times of the year during
March and April where there is no available channel capacity to
transfer water in the San Joaquin River because of pulse flows required
by the Settlement. Proposed transfers from May-February should not be
affected by Settlement flows.
P.L. 111-11 contains provisions substantially similar to many of
the provisions in the current legislation. Although worded slightly
differently, the impact of that law is to authorize the same transfers
as S. 1759 authorizes in Section 2(a)(2). The 111-11 language requires
two conditions precedent to transfers: the first is release of Interim
or Restoration Flows and the second is conversion of the current 9(e)
water service contracts to 9(d) repayment contracts. Upon fulfillment
of the conditions precedent, and upon submission of a narrative
describing how the transfer will mitigate the effects of the
Restoration and Interim flow releases, the contractors can transfer any
portion of their contract allotment other than the water used for
Interim and Restoration flows without a showing of a savings in
consumptive use and without regard to the limits established by the
CVPIA historic use provision.
Question 9. How have reduced deliveries in wet years impacted
groundwater supplies, in particular, as they relate to conjunctive use
projects?
Answer. The Friant Division was originally conceived as a
conjunctive use project. Transfers during dry years will impact
groundwater supplies by both drawing on those supplies through
groundwater pumping and because the aquifer will not recharge if
surface water is being transferred. In general, Reclamation believes
that groundwater pumping during dry years depletes the aquifer and
transfers of water decrease the amount of recharge. Friant Division
contractors will thus have an incentive to limit the amount of water
that they make available for transfer in order to manage their
groundwater supplies to ensure availability of water when it is needed.
s. 1758
Question 1. Under current regulations, what is the likelihood of
hydropower being developed on the Diamond Fork Unit?
Answer. In October 2004, the Central Utah Water Conservancy
District completed the Supplement to the 1988 Definite Plan Report for
the Bonneville Unit (DPR). The DPR Power Appendix and Financial and
Economic Appendix provide a detailed analysis of federal power
development on the Diamond Fork System. Although the analysis
determined federal power development would be feasible based on the
October 2004 DPR Supplement, power development at Diamond Fork could
not begin until after the Utah Lake System has been constructed. It is
uncertain when or whether federal power would be developed at Diamond
Fork.
Question 2. If hydropower is not developed on the Diamond Fork, how
will the $161 million allocated to power generation be recouped?
Answer. If hydropower is not developed on the Diamond Fork System
as contemplated in the DPR, the costs allocated to power generation
would be re-allocated to the remaining project uses. The Municipal and
Industrial, Irrigation, and Fish and Wildlife water users would be
obligated to pay a proportionately larger share of the project costs.
Question 3. If hydropower is installed at Diamond Fork, how much
will federal revenues increase due to annual power fees?
Answer. If federal power is developed on the Diamond Fork System,
in accordance with the DPR, the revenue generated is expected to be
approximately $5.3 million annually. The revenues would be used to
repay the capital costs of power development ($161 million) and the
operating and maintenance costs allocated to power.
Question 4. According to CBO, hydropower sponsors would be required
to pay $400,000 in fees beginning in 2015. So from 2015-2019, the
federal revenues would increase by $2 million.
Answer. If private power is developed on the Diamond Fork System as
an alternative to federal power as described in the DPR the private
developer would be required to enter into an agreement with the United
States under the authority of a ``Lease of Power Privilege.'' A lease
payment to the United States by the private developer would be
negotiated. In the past, similar private power developments on
Reclamation projects have resulted in a lease payment to the United
States of 3 mils or $3 per mega-watt hour. Under the Diamond Fork
System scenario and with the current water supply a 3 mil payment to
the United States would equal approximately $400,000 annually.
Question 5. It seems to me that you aren't getting anything now,
and are very unlikely to in the future because the cost structure in
place doesn't make it feasible. With this legislation, you will at
least receive $2million in power fees, on a system that already been
built out and largely paid for.
Answer. If federal power is developed at the Diamond Fork System it
would not be built until after the Utah Lake System is constructed. The
power would be marketed by the Western Area Power Administration with
estimated revenues of $5.3 million annually. The revenues would be used
to repay the capital costs of power development and costs allocated to
power.
If private power is developed at the Diamond Fork System no federal
investment would be required. Under existing law, private developers
would provide the capital costs and a portion of the revenues would be
paid to the United States under a Lease of Power Privilege.
In general the federal government has to be careful to ensure that
its policies are fiscally responsible over the long term. We need to
look not only at years 2015-2019, but at future fiscal years to
determine what the overall impact would be on the Treasury.
Attachment.--California Drought Response Fact Sheet
California is in the third year of dry hydrologic conditions. While
the most adversely affected by the drought conditions are the water
service contractors north and south of Delta, Reclamation is working
with all water users on short and long-term actions to improve
California's ability to deal with droughts and low water supply
allocations. Some of these actions include facilitating and supporting
water transfers, utilizing groundwater banks, and further diversifying
water supplies.
California is in the third year of drought conditions,
resulting in reduced runoff and lowered reservoir levels.
Precipitation in some river basins in 2009 was near-normal, but
the runoff up and down the Sacramento and San Joaquin Valleys
has consistently been at only 65-70% of normal. The run-off is
a good measure of the water available to fill California's
reservoirs and inform the Bureau of Reclamation's allocations.
The smaller basins responded well to the late-season
precipitation: the American River Basin's Folsom Reservoir
nearly filled and the San Joaquin's Friant Division is now at
100% Class 1 and 23% Class 2 deliveries. But while some areas
were aided by the improved weather conditions, the South-of-
Delta area still felt the effects of the continued dry
conditions. As it relates to westside Central Valley Project
(CVP) agriculture, the dry conditions in the spring of 2008 and
early winter of 2008/2009 (drought related), combined with the
late winter and spring 2009 pumping restrictions (ESA and
regulatory related), resulted in a 10% allocation. Dry
hydrologic conditions resulted in a loss of about 1,600,000
acre-feet of water and pumping curtailments in the Delta to
protect delta smelt resulted in a loss of about 500,000 acre-
feet of water. This 2,100,000 acre-feet of water could have
been delivered to agricultural and urban users. For the CVP,
these reduced supplies have fallen predominantly on the water
service contractors in the west side of the San Joaquin Valley
who hold junior water rights.
For the 2009 water year, Reclamation and the water users
worked together to minimize the impacts of 3 consecutive dry
years. The CVP water allocation for 2009 equates to about 80
percent of 5-year average of the overall amount of water
delivered to all CVP contractors; however, CVP water
allocations vary by type of contractor (e.g., water service,
urban, water rights, refuge) and by geographic location;
therefore reductions in allocations do not affect all water
users the same. As mentioned above, the most adversely impacted
CVP contractors are those on the west side of the San Joaquin
Valley where the allocation to agricultural water service
contractors is only 10 percent or about 195,000 acre-feet of
water and M&I is 60 percent or about 83,000 acre-feet.
In 2009, water contractors worked to secure water from alternative
sources to address the needs of their customers by acquiring water from
willing sellers and by increasing groundwater pumping. State and
Federal Contractors participated in the 2009 Drought Water Bank,
transferred Yuba River Accord supplies, and purchased water from the
Sacramento Valley and Stanislaus River water districts contractors.
South-of-Delta contractors have also utilized Federal facilities
pursuant to Warren Act contracts to move water acquired from non-
Federal sources south-of-Delta.
The contract water supply compared to the actual allocations
for both north-and south-of-Delta as of August 2009 are as
follows:
In order to alleviate effects of the drought in 2009,
Reclamation continues to coordinate actions and activities with
numerous Federal and State agencies, including the U.S. Fish
and Wildlife Service, National Marine Fisheries Service, the
California Department of Water Resources, State Water Resources
Control Board, California water users, and many other water
entities. Following are specific activities that are being
implemented:
Water Transfers--Reclamation is working closely with the California
Department of Water Resources to use the flexibility of the CVP and SWP
facilities to accommodate water transfers and exchanges among water
districts to make the most effect use of limited supplies. Reclamation
has worked to facilitate critical ``North to South'' transfers to CVP
contractors totaling 146,000 acre-feet. Since January 2009, more than
136 local transfers, totaling some 340,000 acre-feet, have been
approved between willing sellers and buyers throughout the CVP. Of
this, some 230,000 acre-feet were south-of-Delta transfers (including
transfers of rescheduled water).
Banked Groundwater--Reclamation is prioritizing the review and
approval of proposals for the return of previously banked groundwater.
As of July 17, Friant Division Contractors withdrew 7,016 acre-feet and
Westlands Water District withdrew 6,063 acre-feet from existing
groundwater banks.
Rescheduling--Reclamation approved requests from water contractors
to ``reschedule'' (carryover) 2008 water supplies they had conserved in
San Luis and Millerton Reservoirs into 2009. The total water
rescheduled in San Luis Reservoir was 336,701 acre-feet and 55,615
acre-feet in Millerton Reservoir (Friant Division).
Consolidated Place of Use--Reclamation and the California
Department of Water Resources filed a joint petition in March 2009 with
the State Water Resources Control Board to Consolidate the CVP and SWP
Places of Use to increase operational flexibility. In May, the State
Water Resources Control Board adopted an Order approving the petition
which allows CVP and SWP water to be delivered within the same
overlapping area which aided in facilitating transfers and exchanges of
water among both sets of contractors.
Refuge Level 2 Water Supply Deliveries--Reclamation continues to
coordinate with Federal and State refuge managers on scheduling
delivery of their WY 2009 contracted water supplies of 422,251 acre-
feet to months outside the agricultural season. Further, groundwater
wells are being installed to help supply water to the refuges, thus
freeing up CVP supplies for agricultural and urban use.
During his Town Hall Meeting in Fresno on June 28, 2009,
Secretary Salazar announced his appointment of Deputy Secretary
David Hayes to lead the Federal response to California's water
supply and related environmental issues in coordination with
the State and stakeholders. Further, the Secretary has assigned
Associate Deputy Secretary Laura Davis and Reclamation
Commissioner Michael Connor to co-chair the Federal Drought
Action Team, which includes representatives of the U.S.
Department of Agriculture, U.S. Environmental Protection
Agency, NOAA Fisheries, Small Business Administration, U.S.
Army Corps of Engineers, U.S. Department of Labor, the Council
on Environmental Quality, and the Office of Management and
Budget. The team meets regularly to ensure maximum attention to
ways the Federal agencies can assist in marshaling existing
resources to respond to and mitigate the impacts of the drought
on California water users.
On Oct 23, 2009, the U.S. Fish and Wildlife Service
announced the creation of the Bay-Delta Fish and Wildlife
Office, located in downtown Sacramento. This new office will
focus on conservation issues related to the increasingly vital
Delta.
The Secretary has also elevated Federal involvement and leadership
in the development of the State-led Bay Delta Conservation Plan (BDCP),
a collaborative planning process that seeks to provide for a
sustainable Sacramento-San Joaquin Delta to address the needs of
several threatened and endangered species while improving water system
reliability south of the Delta. Reclamation has executed Financial
Assistance Agreements with the California Department of Water Resources
to assist in the completion of planning efforts, environmental
documents, and technical studies.
The Department has allocated $40 million in American
Recovery and Reinvestment Act (ARRA) funds for drought relief
projects to help reduce impacts as quickly as possible in the
short term and with a major emphasis on minimizing impacts in
WY 2010. The projects include temporary pipelines and pumps,
new domestic and irrigation water wells, well-enhancement
projects, and a groundwater monitoring effort. Many of the
projects will help preserve permanent crops and associated jobs
in the San Joaquin Valley, an area experiencing economic
hardship and high unemployment rates.
Reclamation has allocated $134 million for 27 projects
approved under the Title XVI (water recycling and reuse)
Program; over $22 million will be spent on 6 projects in the MP
Region. These projects will provide 13,000+ acre-feet of
recycled water per year, reduce dependence on existing potable
water supplies and improve water supply reliability.
Reclamation finalized a funding agreement with the Tehama
Colusa Canal Authority (TCCA) to build an interim pumping plant
at Red Bluff to allow for pumping of an additional 500 cubic
feet per second (cfs) of water to TCCA for irrigation starting
in May 2009. This is in addition to existing pumping capacity
of about 465 cfs. The interim pumping plant will allow the
gates of the Red Bluff Diversion Dam to remain open, providing
unimpeded fish passage for threatened and endangered salmon,
steelhead, and green sturgeon, as well as other fish species.
With funding provided by the ARRA and other water
conservation programs, Reclamation is encouraging water use
efficiency projects to accelerate implementation of
conservation activities through cost-shared grants:
ARRA--Reclamation has solicited proposals for $40
million in ARRA Challenge Grants for water use efficiency
projects. 4 grants will be awarded to San Joaquin Valley water
districts totaling almost $11 million. An additional project in
Sacramento for urban water meters will be awarded for $5
million. Projects in the Mid-Pacific Region include expanding
existing groundwater water banks and development of new
groundwater banking facilities, water marketing, automating
water delivery structures, and installation of water meters.
Awards will range from $1-$5 million. In all, projects in
California totaled over $27 million of the program's $40
million.
Water Marketing and Efficiency Challenge Grants--
Reclamation is currently awarding eight Water Marketing and
Efficiency grants to San Joaquin Valley Contractors for $2.4
million. Awards are for $300,000 each and projects include
ground water banking facilities, flow measurement, and system
automation.
CALFED Water Use Efficiency Grant Program-Two
projects were awarded in the San Joaquin Valley for $1.6
million. Projects will provide benefits to the Bay-Delta while
providing better water management to the districts.
Water Conservation Field Services Program-
Reclamation has awarded five grants in the San Joaquin Valley
for system automation, flow measurement control, and mobile
irrigation labs for land owners to aid in efficient irrigation
practices. Awards totaled $175,000.
On July 31, 2009, the Mid-Pacific Region issued
Rescheduling/Carryover Policy and Guidelines for the 2010 water
year, which runs from March 1, 2010, through February 28, 2011.
Historically, Reclamation has released the Guidelines late in
the water year; however, recognizing contractors' need to make
plans in preparation for the 2010 water year, the Region
committed to publishing the 2010 Water Year Guidelines by
August 1, 2009. In addition to the Guidelines, which apply to
allocated CVP water only, the policy also addresses storage
priority for various types of Project and non-Project water to
be stored in San Luis Reservoir, some of which may be kept in
storage well into the 2010 water year.
As California's population continues to increase,
Reclamation is working with the State on longer-term plans and
projects to prepare to manage future water supply shortages,
improve available supplies, and minimize hardships. Projects
include:
Bay Delta Conservation Plan (BDCP): The BDCP is a
collaborative planning process that seeks to provide for a
sustainable Sacramento-San Joaquin Delta to address the needs
of several threatened and endangered species while improving
water system reliability south of the Delta. Reclamation and
the Department of Water Resources have jointly entered into
Financial Assistance Agreements to provide and aid in the
development and completion of planning and environmental
documents, along with technical studies.
Delta-Mendota Canal (DMC) and California Aqueduct
Intertie Project: The Intertie would connect the DMC and
Aqueduct via a new pipeline and pumping plant to help meet
water supply demands, allow for maintenance and repair
activities, and provide the flexibility to respond to CVP and
SWP emergencies. The project was identified as a proposed
action in the August 2000 CALFED Bay-Delta Program Programmatic
Record of Decision. A Record of Decision is planned to be
signed in December 2009 allowing initiation of construction.
Other Storage Projects: As a component of CALFED,
Reclamation is studying storage projects related to water
supply and reliability, including the Shasta Lake Water
Resources Investigation, North-of Delta Offstream Storage
Investigation (Sites Reservoir), Los Vaqueros Reservoir
Expansion Investigation, and the Upper San Joaquin River Basin
Storage Investigation.
______
Responses of Martin R. McIntyre to Questions From Senator Bennett
Question 1a. Please describe the direct economic contribution of
agriculture in the Central Valley of California.
Answer. Agricultural production and processing are especially
important to the Central Valley. The University of California estimates
that in the Central Valley, considering the economic ripple effects,
24% of private sector employment and over 18% of private sector labor
income is attributable to these sectors.
Question 1b. Please describe the percent of the private sector
labor force that is directly related to California farms and the
processing sectors.
Answer. According to the University of California, approximately
7.3 % of the state's private sector labor force is directly related to
California farms and food processing sectors alone. The majority of
these jobs exist in the San Joaquin Valley. According to the USDA,
total California farm and farm related employment is significantly
larger and was approximately 2,750,000 in 2002 (13.8 % of Ca. labor
force).
Question 1c. What % of the California state labor income can be
attributed to these industries?
Answer. According to the California Department of Agriculture,
direct California farm receipts in 2007 totaled $36.6 billion or about
13% of the Nations total gross farm receipts. Almost 6% of California
labor income is attributable to farms and closely related processing
industries. In 2007, California agriculture accounts for $11 billion in
international exports.
Question 1d. How many jobs are created in your area for every $ in
farm sales, both directly and indirectly?
Answer. Every $1 billion in farm sales generates about 18,000 jobs.
Question 1e. Please describe how much of the agricultural
productivity in your area is driven by water. If there is less water
available, how much will this impact the productivity level?
Answer. Over 95% of agricultural production in this area is
directly related to irrigation. Reduced water deliveries will result in
reduced productivity of nearly one for one. In other words, a 1%
reduction in water supply results in approximately 1% in reduced
productivity for affected lands.
Question 2. Please describe why over the last ten years there has
been a growing shift from row crops to permanent crops (trees and
vines).
Answer. The shift in cropping patterns is depicted in the graphic
below. Factors that have driven the shift from row crops to permanent
crops during the past 10 years include the following:
Increased water supply costs-Increased costs have forced
more growers to seek out high value permanent crops to offset
sharply increased production costs.
Water conservation investments-substantial capital
investment is necessary to implement high efficiency irrigation
systems. Those costs can be better absorbed in higher value
permanent crop environments.
Question 3a. As indicated in your testimony, your on-farm
irrigation efficiency is estimated to average greater than 80%. Please
describe why in 2009 you had to fallow 25% of your irrigable land, and
why you had to abandon 80% of your annual crops.
Answer. There are three primary reasons for increased fallowing and
abandonment of annual crops:
2009 saw the lowest water supply allocations in the history
of the Central Valley Project (CVP): In March of 2009, the US
Bureau of Reclamation notified west side water Districts that
contracted South of Delta (SOD) CVP water supply allocations
would initially be zero and that under any circumstances
allocations were likely to remain very low. Planting decisions
must be made in late winter/early spring based on available
water supply forecasts.
No reliable alternative water supplies: Any and all
supplemental water supplies (water transferred from elsewhere)
are uncertain and require long lead times. A grower cannot
afford the great expense of planting annual crops without an
assured water supply.
Water costs: Under such circumstances supplemental water, if
available, is very expensive. Supplemental water costs
delivered to the west side of the San Joaquin valley in 2009
averaged over $400 per acre foot. A cost above that which
annual crop markets can support.
Question 3b. At what point are your permanent crops at risk?
Answer. Permanent crops located SOD were at risk this year and will
remain at risk until or unless Delta pumping constraints are returned
to the 65% average reliability available prior to the implementation of
the Delta smelt Biologic Opinion (B.O.). Even for the most profitable
permanent crops, $400 acre foot water costs are not sustainable.
Additionally, with post B.O. average CVP allocations at about 35% the
occurrence of years when CVP yields zero agricultural water supply
increases substantially. At that point little to no supplemental water
would be available and permanent crops would die or become seriously
damaged.
Question 4. Please describe the process you undertook to transfer
water within the CVP prior to the implementation of CVPIA. Furthermore,
describe what you may consider a routine transfer that historically had
occurred but now is not possible.
Answer. Prior to the implementation of the CVPIA, or more
accurately the interpretation of the CVPIA by the Reclamation,
transfers were considered a contract right and water was moved around
within the CVP with a relatively simple notification of Reclamation by
the contractor and the subsequent approval of what, in essence, was a
water schedule change involving the transferring contractor and the
receiving contractor. Transfers were viewed as an operational issue
where the change in the point of delivery and the timing of the
delivery as a result of the transfer needed to be checked for potential
operational impacts. It was not viewed as a significant federal action.
Thus, there was a real ease in moving water among Project contractors.
Prior to CVPIA, Project contractors included entities that did not
have long-term contracts, but either contracted with Reclamation on a
temporary basis (one-year contracts) or on a short-term basis
(contracts of up to fifteen years in length). These entities would have
access to Project supplies that were in excess of the contractual
demands of the long-term contractors.
Transfers to and from temporary or short-term contract neighboring
districts which shared common groundwater resources occurred commonly.
These same transfers can no longer occur without meeting the
``consumptive use'' test and without undergoing individual review.
Question 5. Prior to the implementation of the Central Valley
Project Improvement Act (CVPIA) were transfers occurring within the
Central Valley? In general, how long did it take for water to be
transferred amongst different entities once an agreement was made on a
transfer?
Answer. Transfers within divisions of the CVP occurred regularly.
There were transfers occurring annually to balance annual vagaries in
supply and demand as between contractors. Temporary surplus or
shortages among contractors of available water supplies were easily
managed. Most of the CVP was in a water surplus condition and supplies
were highly reliable. The Friant Division of the CVP was more isolated
from the main CVP storage reservoirs on the Sacramento, Trinity and
American rivers and thus was more subject to shortages, but only in the
driest years was water sought from other parts of the CVP. Some water
was obtained in the drought year 1977 from other parts of the CVP for
the Friant Division, but this was Project water set aside by
Reclamation as a drought water bank and not transfer supplies from
another CVP contractor.
As noted above in response to the previous question, transfers were
largely viewed as operational issues. Typically there was little
concern associated with the changed point of diversion or timing of the
diversion as a result of the transfer. In most circumstances, a call
could be placed to Reclamation's operations personnel, who would
verbally approve a transfer on the spot. Follow up paperwork sufficed
as the official request for the transfer along with the appropriate
response from Reclamation's contracting officer both of which often
trailed the actual movement of the water. Transfers were thus approved
very quickly. If there was concern as to canal capacity or reservoir
operations resulting from Reclamation's initial review of a transfer,
there would be a delay until Reclamation could validate or dismiss
their concerns, but the delay usually entailed a couple of days at the
most.
Question 6. As referenced in your testimony on page 11, you
indicate that prior to Biologic Opinions (B.O.s) rendered in the past
two years, south of Delta CVP allocations averaged 65%, but now are
forecasted to be only between 10--30 %. How much of this reduction can
be attributed to the B.O.s?
Answer. Hydrologic modeling reveals that the combined water supply
impacts of the two recent B.O.s will cause the average annual south of
Delta, CVP agricultural allocation to fall from 65% to 35%. These
impacts are summarized in the table* above. The Committee's question is
more difficult to answer.
---------------------------------------------------------------------------
* Table has been retained in subcommittee files.
---------------------------------------------------------------------------
The forecast of a water supply allocation of between 10--30%
presented on page 2 of my testimony refers specifically to 2010 and
takes into consideration circumstances as they now exist, including the
effects of drought and regulatory restrictions to the degree they are
currently understood. Predicting how much of the potential reduction is
drought and how much is regulatory is a difficult task due in large
part to the wide range of discretion available to the United States
Fish & Wildlife Service (FWS) to curtail pumping by the Central Valley
Project (CVP) and State Water Project (SWP). While it is difficult to
predict how severely FWS decisions will impact next year's water
supply, we can look to how 2009 was affected by implementation of the
2008 FWS biological opinion.
According to the Department of the Interior, FWS actions resulted
in the loss of 500,000 acre-feet of water in 2009, thus exacerbating
the effects of the natural drought by over 30%. Other estimates are
higher. There is no evidence, however, that these actions resulted in
any improvement to the fish population level. On the contrary, current
delta smelt trawl data indicates abundance is at an all time low
despite two consecutive years of severe operational curtailment of the
CVP and SWP. If this water had been available, the water allocation to
our farmers would have likely risen from 10% to 25%, a two-and-a-half
fold water supply increase, mitigating many of the economic, social,
and environmental impacts that savaged our rural, agricultural region.
Of even greater concern, these severe impacts do not include any of
the effects from the United States National Marine Fisheries Service
(NMFS) biological opinion, which was not issued until June, after the
period it would have affected the 2009 water supply. However, it will
impact the 2010 water-year in ways that are far from fully understood.
Disagreements about interpretation of the biological opinions and
questions over how they might be implemented and potential conflicts
between their prescribe actions, for example, are hampering development
of the Bay Delta Conservation Plan. Although these vagaries make
forecasting incredibly difficult; we can suggest the likely ranges of
impact using conservative assumptions.
Currently, analyses conducted by the California Department of Water
Resources indicate that on average the long-term adverse water supply
impacts attributable to issuance of the two biological opinions upon
people who rely on water from the CVP and SWP will create losses
ranging between 650,000--1,040,000 acre-feet due to the FWS biological
opinion, and between 230,000--530,000 acre-feet of additional loss
under the NMFS. These levels of impact are based upon assumptions
regarding the ``likely'' application of FWS and NMFS discretion and the
best available computer simulation modeling of data collected over an
82 year hydrologic record.
Question 7. On page 10 of your written testimony you include the
chart that depicts the rededication of CVP & SWP water supplies since
1992. You estimate that more than 3 million acre-feet of water has been
rededicated for environmental purposes. Do you see these actions as the
main cause for water shortages in the Central Valley?
Answer. Absolutely. While droughts inevitably occur, the regulatory
rededication of CVP and SWP supplies has resulted in chronic shortages,
particularly for the CVP agricultural water service contractors south
of the Delta. Deliveries of CVP water to the Westside began in 1952.
From that time until winter-run Chinook salmon were listed as
threatened in 1990, the CVP delivered full water supply entitlements to
agricultural service contractors in every year but one, 1977, when
allocations were limited to 25% due to drought. Since 1990 however, the
CVP has only delivered full water supply entitlements three times.
Three (1995, 1998, 2006). At first the impacts of the changing
regulatory paradigm were difficult to perceive because of an ongoing
drought and the lack of computer modeling capability. In 1993 though,
when drought conditions finally abated, south-of-Delta agricultural
water supplies only rose to 50%. At that point, the effects of the
rededication became quickly and painfully evident.
Comparing the current drought conditions with previous events will
help to distinguish the effects of accumulated regulations versus the
effects of drought. On March 31, 1977, the CVP had 3,035,300 acre-feet
of water stored in its northern California reservoirs. This point in
time is the driest on record and yet the CVP was able to deliver to its
south-of-Delta agricultural contractors 25% of their contract supply
plus some additional water to help protect permanent crops. In 1991,
the fifth year of a protracted drought, the CVP was again forced to
curtail its deliveries to Westside farmers to only 25% of contract
supply. Under these true drought conditions, CVP storage ran
approximately 37% and 44% of capacity, respectively. This year however,
northern CVP storage stood at 5,033,200 acre-feet or 61% of capacity on
March 31 and yet the project was only able to provide its south-of-
Delta agricultural customer 10% of their water supply. The difference
between these ``dry'' periods is attributable entirely to changes in
the regulatory constraints placed upon the CVP since the early 1990s.
Another indicator of the impact regulation is having comes from the
California Department of Water Resources, which announced on December 1
an initial 2010 water supply allocation for the State Water Project of
only 5%. While it is true that these initial allocations often
increase, it is informative to compare conditions the State is
assessing in making the initial allocation determination. At the
beginning of the 2009 water year, storage at their primary reservoir,
Lake Oroville, was at 31% of capacity while at the beginning of the
2010 water year Oroville storage was at 38% of capacity. This
improvement is due in part to the fact that northern California
precipitation in the 2009 water year was 93% of normal. Further,
current northern California precipitation is at 144% of average for
this time of year. Yet, despite better conditions at this point in the
2010 water-year, the initial 2009 allocation forecast was for 15% of
supply. A key difference between the 2009 and 2010 supply forecast is
the added regulatory burden of the NMFS biological opinion, which was
issued after it could have affected the 2009 water supply situation.
While the magnitude of the impacts of the FWS and NMFS biological
opinions will not be fully understood until the current drought abates,
the immediate effects are sadly well known. More land will be fallowed,
more people will lose their farms and businesses and jobs, small, rural
communities will become poorer, and people will suffer more depression,
drug and alcohol abuse, domestic violence, and divorce.
The regional environment will also be further impacted. Expansion
of unirrigated fields will produce more dust, compounding the already
significant number of respiratory ailments associated with the San
Joaquin Valley, particularly asthma. More unirrigated fields also means
more habitat for non-native plant species such as Russian thistle (aka
tumbleweed), which, upon maturity, breaks from the soil and is
transported with the wind. This migration can threaten remaining native
plant ecosystems, impact crops and infrastructure such as highways and
canals, and produce rashes and allergic reactions among people exposed
to the noxious weed. In short, the Westside region, which was developed
and sustained for over half a century by water promised by the United
States, will continue to bear the disproportionate brunt of the adverse
impacts resulting directly from the FWS and NMFS biological opinions.
Appendix II
Additional Material Submitted for the Record
----------
Statement of Donald A. Christiansen, General Manager of the Central
Utah Water Conservancy District
s. 1757
I am grateful to be able to submit written testimony in support of
S. 1757. I want to thank Senator Robert F. Bennett for introducing this
bill on behalf of the Uintah Water Conservancy District (District). The
District was formed in 1956 for the purpose of ``conserving, developing
and stabilizing supplies of water for domestic, irrigation, power,
manufacturing, municipal and other beneficial uses, and for the purpose
of constructing drainage works''. The District operates and maintains
the Vernal and Jensen Units of the Central Utah Project which was
authorized by Congress as part of the Colorado River Storage Project
Act of 1956.. The District encompasses almost all of Uintah County,
Utah in eastern Utah adjacent to the border of Colorado.
At the time of its construction (1984-1987), The Jensen Unit was to
provide 18,000 Acre Feet (AF) of M&I water to the residents of Uintah
County. 6,000 AF were to be developed with the construction of Red
Fleet dam and another 12,000 AF were to be developed at a later date
with the construction of the Burns Bench Pump station on the Green
River in Jensen, Utah. Due to the economic bust in the mid to late 80's
there wasn't the demand for water that had been foreseen and an
amendatory contract was signed in 1989 with the Bureau of Reclamation
reducing the amount of water subscribed to by water providers to 2,000
AF.
The Bureau desires to do a final cost allocation on the Jensen
Unit. If that allocation were done without developing the remaining
12,000 AF, the cost per AF would be approximately 2.5 times as much as
if the 12,000 AF were developed. A Block Notice was issued to the
District from the Bureau of Reclamation for the 2,000 AF and the
District contracted with the municipalities, water improvement
districts, and a private company for all of that water. Since that time
the additional 4,000 AF of M&I water has remained unsubscribed. The
Bureau of Reclamation took 700 AF to increase the conservation pool in
the reservoir which leaves 3,300 AF of available water. The Burns Bench
pump station will not be constructed until all of the M&I water
available in Red Fleet is subscribed to. In the past year, due in large
part to the projected growth, the District has received requests for
all of the remaining M&I water available in Red Fleet. Vernal City and
Ashley Valley Water and Sewer have each requested 1,000 AF, Maeser
Water has requested 675 AF, Jensen Water has requested 175 AF, Uintah
County in conjunction with Jensen Water has requested 150 AF, and a
private company has requested 300 AF.
The price of the water was set by the amendatory contract. The
amount per AF was based on the cost of the Jensen Unit (including an
estimated cost of the pump station) divided by 18,000 AF. The resulting
cost is $5,555.21 per AF and is payable by dividing that amount by the
number of years remaining until 2037 with the last payment being made
in 2037. Water purchased in 2006 would be paid for at a rate of $179.07
per AF per year for 31 years. The District approached the Bureau about
the possibility of discounting those payments at either the 3.222% rate
used by the Bureau to calculate the repayment or the federal funds rate
at the time of the discounting. According to the Bureau, the amendatory
contract does not allow for prepayment. The District then determined
that it would seek legislation similar to that used by the Central Utah
Water Conservancy District that has allowed for prepayment of the
repayment contracts for the Bonneville Unit. Prepayment of our contract
with the Bureau will substantially reduce the cost of water to the
District. S. 1757 will also produce a substantial payment to the
federal treasury which we estimate to be between $4-5 million.
S. 1757 directs the Secretary of the Interior to allow for
prepayment of the specified contract between the United States and the
Uintah Water Conservancy District providing for repayment of municipal
and industrial water delivery facilities under terms and conditions
similar to those used in implementing provisions of the Central Utah
Project Completion Act. It also provides that the prepayment: (1) may
be provided in several installments to reflect substantial completion
of the delivery facilities being prepaid; (2) shall be adjusted to
conform to a final cost allocation; and (3) may not be adjusted on the
basis of the type of prepayment financing utilized by the District. The
Senate bill reflects amendments made to the House companion at the
suggestion of the Administration. These amendments insure that the
entire amount of the repayment contract will be prepaid.
s. 1758
Introduction
Mr. Chairman, my name is Don Christiansen and I am General Manager
of the Central Utah Water Conservancy District (District), the State
sponsor of the Central Utah Project. I appreciate the opportunity to
submit written testimony in support of S. 1758 which was introduced by
Senator Robert F. Bennett and Senator Orrin G. Hatch. The Bonneville
Unit of the Central Utah Project develops water for communities in 10
counties covering three Congressional Districts. We express
appreciation to our elected representatives for their introduction of
this bill which will clear away sunk system-wide costs which constitute
an economic roadblock to the development of clean hydropower in the
Diamond Fork feature of the Bonneville Unit.
The District is an experienced developer of hydropower
The District has a proven track record of developing non federal
hydropower on federal facilities of the Bonneville Unit. At an
important dam in Summit and Wasatch counties, we worked from the
initial design of the Jordanelle Dam to facilitate outlet plumbing for
the eventual installation of the recently constructed Jordanelle
hydropower plant. The District has been involved in each step of this
very successful project which has a maximum capacity to generate 12
megawatts of hydropower at Jordanelle dam. The project has been
certified by the Low Impact Hydropower Institute as ``Green Power''.
The plant began commercial operation on July 1, 2008. The District
developed the Jordanelle power plant in partnership with Heber Light &
Power (a local public power entity) which purchases and markets the
energy. Since it was originally anticipated that federal power would
not be developed at Jordanelle dam, none of the costs of the dam or
system-wide project costs were allocated to power. Therefore, during
the negotiation of the Lease of Power Privilege one of the negotiation
points was to determine a reasonable fee to be paid to the federal
government that would not push the cost of the power beyond market
conditions. The negotiated fee is 3 mills per kilowatt hour escalating
at 3% per annum.
Potential for Diamond Fork Hydroelectric Power Plants
The Supplement to the 1988 Definite Plan Report for the bonneville
Unit (2004) and the Utah Lake Drainage Basin Water Delivery System
Final Environmental Impact Statement (September 2004) detail the
proposed power facilities that could be built at Diamond Fork. In
general, two hydroelectric power plants would be located in Diamond
Fork Canyon. they are at:
1. The Sixth Water Flow Control Structure with a capacity of
45 MW and,
2. The Upper Diamond Fork flow Control Structure with a
capacity of 5 MW
The potential Diamond Fork power plants have some similarities and
yet some distinct differences from the Jordanelle power plant. Of
particular importance is the manner in which power costs have been
assigned by the Department of the Interior. $161. million in Strawberry
Collection System sunk costs have been assigned to be recovered from a
future Diamond Fork power plant. This significantly complicates
hydropower development at Diamond Fork. In essence, any developer of
power at Diamond Fork starts in an economic ``hole'' of $161 million
before installing any power turbines or constructing any transmission
lines.
Moreover, power generation at Diamond Fork is based ont he ``run of
the river'' (generation which is incidental to water releases), and
therefore Diamond Fork hydropower has less value in energy markets
because it cannot be scheduled to meet peak demands. In fact, Section
208 of PL 102-575 places limitations on the operation of the power
plants at Diamond Fork. The Central Utah Project Completion Act or
``CUPCA'' says; ``Use of Central Utah Project water diverted out of the
Colorado River Basin for power purposes shall only be incidental to the
delivery of water for other authorized project purposes. Diversion of
such waters out of the Colorado River Basin exclusively for power
purposes is prohibited.'' Hence, flow releases through the Diamond Fork
System of aqueducts and pipelines would be dictated by Central Utah
Project (CUP) and Strawberry Valley Project (SVP) water needs and would
be used for electric energy generation at the hydroelectric power
plants as a secondary purpose.
Legislation is needed to defer sunk system costs allocated to Diamond
Fork Power
Because the power costs allocated to Diamond Fork make the project
uneconomic, we approached the Utah delegation with a remedy to defer
these costs similar to other costs that have already been deferred. The
costs allocation was initially done using the Use of Facilities (UOF)
method as directed by the Comptroller General in a letter of January
26, 1994. Application of a strict UOF allocation of costs to power
resulted in an allocation of $540.3 million to power. This ammount
would result in a power rate significantly higher than its market
value. Consequently, a modified use of facilities approach was used to
calculate the power allocation. Under this approach, the cost allocated
to power is $161.0 million.
Even with the modified use of facilities approach this amount
allocated to power makes power development very expensive and
infeasible. At a time when the demand for energy is skyrocketing and
the need for renewable energy is paramount, the sensible approach of S.
1758 is to defer the costs assigned to power and allow development of
this valuable resource. As was done with Jordanelle dam, the fee paid
to the Federal government for the investment in facilities which make
power development feasible could be negotiated through a competitive
Lease of Power Privilege process. Current market conditions and
construction costs would be known and a reasonable fee could be
established.
Conclusion
S. 1758 reflects modifications made to the bill in the House
Resources Committee to address PAYGO conccerns. The bill was amended to
preclude the use of tax exempt financing on the project. While we would
have preferred to use all our tax advantaged financings available to
us, we understand that Congressional budget rules makes this
impossible. The District stands ready to initiate a process to apply
for the right to develop clean hydropower at Diamond Fork if the
economic hole created by the allocation of sunk system-wide costs is
deferred. We strongly urge your approval of this important legislation
as soon as possible.
______
Defenders of Wildlife,
California Office,
Sacramento, CA, November 19, 2009.
Hon. Debbie Stabenow,
Chairman, Subcommittee on Water and Power, U.S. Senate, Washington, DC.
Re: Testimony on S. 1759
Dear Senator Stabenow: Defenders of Wildlife appreciates the
opportunity to present written testimony on S. 1759 and to suggest
recommendations to improve this bill. (Attached) This testimony is
presented as part of the hearing held by the Subcommittee on November
5, 2009. Defenders of Wildlife has invested, and continues to invest, a
great deal of time and energy in the effort to protect and conserve the
Central Valley's natural resources, including its grasslands, wetlands,
and waterways.
We thank you for the opportunity to provide our views on this bill.
We look forward to working with you and your Subcommittee staff as this
bill moves forward in the legislative process.
Sincerely,
Kim Delfino,
California Program Director.
Attachment.--Statement of Kim Delfino, Defenders of Wildlife, on S.
1759
Defenders of Wildlife appreciates the opportunity to present
written testimony on S. 1759 and to suggest language to avoid any
unintended consequences. The goal of S. 1759 is an important one: to
expedite necessary water transfers in California while maintaining the
integrity of Central Valley ecosystems. With adequate planning and
foresight, these water transfers can bring water to areas experiencing
shortages due to drought without compromising the surrounding
environment. At the same time, if water transfers are not done
carefully and pursuant to existing environmental laws, they could
result in further degrading an already struggling environment in the
Central Valley.
Defenders of Wildlife has invested, and continues to invest, a
great deal of time and energy in the effort to protect and conserve the
Central Valley's natural resources, including its grasslands, wetlands,
and waterways. In addition to serving as a member of the Bay Delta
Conservation Plan Steering Committee, Defenders is also a founding
member of the Central Valley Joint Venture (CVJV). As you already know,
based on the testimony presented by the Grasslands Water District--an
important partner with the CVJV, there are specific concerns about the
potential impacts of poorly designed water transfers on the Central
Valley wetlands and wildlife refuges and associated migratory bird
populations.
The following are three specific issues we have identified in S.
1759 with suggested amendments to clarify and resolve those issues:
1. Clarify that S. 1759 will continue to ensure that water
transfers will comply with all applicable laws and agreements
and will not undermine the environmental protections inherent
in the Central Valley Project Improvement Act.
Section 3405(a)(1) of the Central Valley Project Improvement Act
(``CVPIA'') was carefully negotiated to assure that water transferred
in the Central Valley Project did not interfere with the water intended
to be used in the system to meet fish and wildlife protections and
restoration obligations. We are concerned that Section 2(a) of S. 1759,
which overrides subparagraphs (A) and (I) of CVPIA Sec. 3405(a)(1),
will take away the carefully negotiated safeguards established by
Congress when it enacted the CVPIA. We do not believe that the intent
behind S. 1759 is to weaken those fish and wildlife protections or
result in transfers not conditioned by existing environmental
protection laws, but we are concerned that this section as currently
written could have this unintended consequence.
In order to address these concerns, we suggest the following
amendment to Section 2(b):
(b) Condition--A transfer under subsection (a) shall be
subject to the condition that the transfer does not
contravene----
(1) the San Joaquin River Restoration Settlement Act
(Public Law 111-11; 123 Stat. 1349), including the priorities
described in Section 10004(a)(4)(B) of that Act (123 Stat.
1350) relating to implementation of paragraph 16 of the
Settlement (as defined in Section 10003 of that Act (123 Stat.
1349));
(2) the Settlement.; and
(3) all other applicable federal and state laws, including
but not limited to the Endangered Species Act, National
Environmental Policy Act, the Central Valley Project
Improvement Act, except as expressly amended by subsection (a)
above, and state water transfer laws.
2. Clarify that the directive for expedited review in S. 1759
is not intended to result in a limitation of the scope of
environmental review or in the partial exemption of
environmental review.
Defenders recognizes the need to ensure expeditious environmental
review for water transfers. The language in Section 3(a) will ensure
that such review is not delayed while the seasonal window for water
transfers closes. However, Defenders is concerned that such language
will give the impression that Congress has created a partial exemption
for environmental review of water transfers. Moreover, we believe that
when the ``expedited'' permitting language in Section 3(a) is read in
conjunction with the singular directive in Section 3(b) to address
concerns regarding Giant Garter Snake, there is a risk that Section 3
could be interpreted as narrowly limiting environmental review to only
Giant Garter Snake. Therefore, in order to ensure that the intent of
this provision is not to limit the scope of all applicable
environmental reviews, Defenders suggests deleting Section 3(b) and
adding the following language to Section 3(a):
. . . shall initiate and complete, on the most expedited basis
practicable, the programmatic development of all applicable
environmental compliance required for implementing voluntary water
transfers within the Central Valley Project.
3. Ensure that S. 1759 does not result in adverse impact to
Central Valley refuges and wetlands.
Wildlife refuges also experience water shortages during prolonged
drought. In compliance with CVPIA Section 3406, water is required to be
delivered to wildlife refuges to maintain the habitats for migratory
birds and associated wetland species. Our Central Valley refuges and
wetland areas already struggle to maintain a water supply to meet
minimal wildlife needs in a landscape that has already lost more than
95% of its historic wetlands. We share the concerns that have been
raised by the Grasslands Water District in their written and oral
testimony regarding the potential impacts to Central Valley wetlands
and wildlife refuge water supply from this bill. We fully support the
suggested amendments by the Grasslands Water District to facilitate the
use of carry over storage for unused refuge water supplies; to
facilitate transfers between and among federal, state, and private
wetland areas that receive Central Valley Project water; and to direct
the Bureau of Reclamation to develop and implement a process for
securing the necessary budget for fully implementing Level 4 water
supplies that are authorized under the CVPIA. We believe that the
Grasslands Water District's suggested amendments to S. 1759 will ensure
no impairment of the goals of the CVPIA with respect to wetlands and
wildlife refuges.
We thank you for the opportunity to provide our views on this bill.
We look forward to working with you and your Subcommittee staff as this
bill moves forward in the legislative process.
______
Environmental Defense Fund,
Washington, DC.
Hon. Dianne Feinstein,
U.S. Senate, Washington, DC.
Dear Senator Feinstein: Environmental Defense Fund greatly
appreciates your efforts to help resolve California's pressing water
issues. In particular, we thank you for bringing balance to the
discussions and fending off attempts to undermine fundamental
protections of existing law, including, but not limited to, the federal
Endangered Species Act (ESA).
EDF is engaged at all levels to find solutions to these problems,
including work to help structure the recently enacted state
legislation, participation on the Bay Delta Conservation Plan (BDCP)
steering committee, open dialogue with key players in the agricultural
and municipal water sectors and engagement with the Department of the
Interior on various issues. EDF has long believed that voluntary water
transfers, particularly among users south of the Delta, have an
important role in sensible allocation of available agricultural water,
especially during drought.
It is in this context of constructive engagement that we offer our
support for S 1759, the Water Transfer Facilitation Act of 2009, as
amended and passed by the Senate Committee on Energy and Natural
Resources this week. We support the report language suggested by
Grasslands to ensure that the wetlands and refuge issues are fully
addressed, and look forward to working with you and the Committee to
ensure its inclusion.
Sincerely,
Mary E. Kelly,
Senior Counsel, Rivers and Deltas.
______
Westlands Water District,
Fresno, CA, October 6, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
RE: Water Transfer Facilitation Act of 2009
Dear Senator Feinstein: I am writing on behalf of Westlands Water
District to express its support for your bill, the Water Transfer
Facilitation Act of 2009, authorizing certain transfers of water in the
Central Valley Project and other purposes. Water transfers are a
critical tool for providing water supplies for areas that are faced
with chronic water supply shortages. However, the approval process for
many transfers often distract from their usefulness. Your legislation
will bring important reform to existing transfer authorization thus
increasing the efficacy of this essential water management tool.
As you are keenly aware, the chronic water supply shortages
impacting the area of the San Joaquin Valley served by the Central
Valley Project demands that water users in the affected area rely on
water transfers. Moreover, the need to transfer water is often urgent
and in response to climactic conditions that are frequently sporadic
and ephemeral. Regrettably, bureaucratic process can unnecessarily
thwart successful execution of a transfer. The clarity your legislation
brings to existing authorizations will only improve the capability of
water managers throughout the State to effectively respond to the
ongoing crisis and put our scant water resources to use even more
efficiently.
The westside of the San Joaquin Valley is inarguably the most
transfer dependent region of the State. Your efforts to address this
important matter are greatly appreciated. If there is anything I can do
to be of help in connection with your efforts, please let me know.
Very truly yours,
Thomas W. Birmingham,
General Manger/General Counsel.
______
Endangered Species Coalition,
Washington, DC, November 2, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Bldg., Washington, DC.
Hon. Barbara Boxer,
U.S. Senate, 112 Hart Senate Office Bldg., Washington, DC.
RE: California Conservation Groups concerns with S-1759, Water
Transfers Facilitation Act, 2009
Dear Senators Feinstein and Boxer: The below listed organizations
have come together to provide this input to you for consideration in
the pending water transfers legislation, S-1759. We respect the need to
transfer water to affected communities and farmers to reduce the
economic impacts caused by drought related shortages. It is vital to
ensure this effort is accompanied by key provisions to protect against
unintended consequences and to mitigate the effects of unavoidable
impacts. Unlimited or poorly designed water transfers can have very
serious and negative impacts to the environment in areas where the
transfers begin, and as such, additional protections may be needed. We
offer these recommendations and comments on the pending bills (S-1759
and HR 3750).
1. Water for Refuges
There is concern this transfer legislation could put
additional, unintended demand on already limited wildlife
refuge water, both state and federal. This, in turn, can result
in increased cost for refuge water, and/or reduced availability
of both level 2 and level 4 water under CVPIA. To alleviate
this possibility, we recommend the legislation allow refuge-to-
refuge transfers. This would make the system both flexible and
fair, by allowing wetlands managers the ability to move
available wetlands CVPIA water to the areas in the most need.
Thus, they would operate like any other water user in the
system, putting diminished water supplies to best use.
2.Water Transfers should only be for use in the Central
Valley
As we understand it, the purpose of these bills is to provide
flexibility in the water system in order to assist agricultural
communities and farms impacted by ongoing drought, and not to
incentivize speculation in the water markets. To this end, the
bills should place some limitations on the transfers to ensure
that the transferred water is used for agriculture and farming
in the Central Valley (or to support refuges in the Central
Valley) and not sold on a secondary market. If some of the
transferred water in wet years is to be banked, as a hold-over
for another year, some system of accounting, monitored by BOR
and available to the public, must account for that water, and
show that it is subsequently used as intended for farming and
agriculture in the Central Valley and not re-sold or re-
transferred out of the system to other uses.
3. Impacts to Groundwater Must be Included in the PEIS and
Report
One of the impacts of great concern is the possibility for
increased groundwater over-draft resulting from efforts to
replace transferred surface water. In the Sacramento valley,
where nearly 2/3 of the transfers are likely to originate,
groundwater replacement of transferred water in the 1990s led
to dry or polluted wells, and negative impacts to nut farms
dependant upon wells for irrigation. Much of the farming in the
Sacramento valley, other than rice, is well dependant. For
example, the Tuscan Aquifer, which lies under several
Sacramento valley counties, is currently a healthy aquifer,
unlike many over-drafted aquifers in the Tulare basin (see USGS
facts sheet 2009-3057). It is also connected to several surface
streams in the western Sierra, like Butte Creek, Deer Creek,
and Mill Creek, which supports 98% of the remaining California
Spring Chinook salmon, a federal ESA listed species. It is
likely that a lower Tuscan Aquifer would result in reduced
stream flows and elevated stream temperatures, thus putting ESA
listed fisheries at risk.
We would make two recommendations relative to groundwater.
One, that groundwater replacement of transferred water is
prohibited. If water is transferred, the associated irrigated
land must be either fallowed or planted in crops requiring
reduced water consistent with that transferred. Second, because
there is no state law on groundwater monitoring, we would
recommend the federal government initiate and fund a USGS
Tuscan groundwater aquifer study to determine its functional
capacity, especially under drought conditions.
4. Comprehensive Environmental Review is Needed
Section 3 of the Senate bill calls for preparation of a
Programmatic Environmental Impact Statement and we agree that
completing the programmatic review is essential. In Section 3,
sub-section (b), mentions ``all applicable environmental
reviews, permitting, and consultations, including the
environmental documentation needed to address concerns with
respect to the Giant Garter Snake.'' However, it is clear that
a comprehensive EIS will also need to look at impacts to other
aquatic, riparian, and wetland dependent species in the Delta
and Central valley watersheds that may impact transfer timing
and amounts whether or not these species are called out by name
in the bills.
We appreciate the opportunity to provide inputs designed to
reduce negative impacts and un-intended consequences from these
transfers. Though it is important to help impacted communities
and farms if possible, it is also vital to do so while
continuing to protect our natural resources and wildlife
species that are already under significant stress.
Sincerely,
Dr. C. Mark Rockwell, D.C.,
California State Representative, Endangered Species Coalition, Penn
Valley, CA.
John Beuttler,
Conservation Director, California Sportfishing Protection Alliance,
Berkeley, CA.
Allen Harthorn,
Executive Director, Friends of Butte Creek, Chico, CA.
Robin Huffman,
Board member and Advocacy Coordinator, Butte Environmental Council,
Chico, CA.
Florence M LaRiviere,
Chairperson, Citizens Committee to Complete the Refuge, Palo Alto,
CA.
Dan Silver,
Ex. Director, Endangered Habitats League, Los Angeles, CA.
David Phillips,
Director, International Marine Mammal Project, Earth Island
Institute, Berkeley, CA.
Tara Hansen,
Executive Director, California Native Plant Society, Sacramento,
CA.
Lloyd Carter,
President. Board of Directors, California Save Our Streams Council,
Clovis, CA.
______
Association of California Water Agencies,
October 5, 2009.
Hon. Dianne Feinstein,
331 Hart Senate Office Building, Washington, DC.
Hon. Barbara Boxer,
112 Hart Senate Office Building, Washington, DC.
RE: ACWA support for Water Transfer Legislation
Dear Senators Feinstein and Boxer: Thank you for introducing water
transfer legislation for the Central Valley Project (CVP) which ACWA is
pleased to support. As California's water supply challenges multiply,
this legislation can provide greater flexibility for management of CVP
water supplies. As you know, ACWA's 450 public agency members are
collectively responsible for 90 percent of the water delivered in
California for residential and agricultural uses.
California's water supply situation is dire and worsening. Three
years of below average precipitation along with heavy regulatory
restrictions through the ESA and Biological Opinions, have seriously
diminished California's water supplies. Under these conditions, it is
essential that short term actions, such as provided by your legislation
to flexibly enable water supplies to move across the San Joaquin
Valley, be pursued.
Again, thank you for introducing water transfer legislation. ACWA
looks forward to working with you to secure its passage in an expedited
manner.
Sincerely,
Timothy Quinn,
Executive Director.
______
Altshuler Berzon, LLP,
San Francisco, CA, November 18, 2009.
Hon. Debbie Stabenow,
Chair, Subcommittee on Water & Power, U.S. Senate Washington, DC.
Hon. Dianne Feinstein,
331 Hart Office Building U.S. Senate, Washington, DC.
Hon. Barbara Boxer
112 Hart Office Building U.S. Senate, Washington, DC.
RE: Supplemental Comments & Suggested Revisions to S. 1759 re Water
Transfers
Dear Senator Stabenow, Senator Feinstein and Senator Boxer: I
appreciated the opportunity to present testimony at the November 5,
2009 hearing of the Subcommittee on Water and Power of the Senate
Energy and Natural Resources Committee on behalf of Grassland Water
District to comment on S. 1759, the Water Transfer Facilitation Act of
2009. We also appreciated the Subcommittee's invitation to submit these
additional comments and recommended changes to the legislation.
As I indicated at the hearing, we believe some improvements to the
bill are needed to ensure protection of the Central Valley refuges that
have been so severely impacted by development of the Central Valley
Project and which are supposed to receive additional water supplies
through CVPIA, in some cases through voluntary acquisitions and
transfers. As we indicated in our testimony, one part of this
protection would involve more explicit reference to the prior
protections of the CVPIA as continuing to be applicable to all of the
new, expanded transfers facilitated by this bill. I will suggest
specific language in that regard below.
The other key part of this requested protection would be in the
form of mitigation measures which should be included in the legislation
to help offset the inevitable impacts that the bill will cause to the
refuge water supply program of CVPIA. I have attached a separate
document that outlines these proposed measures in the form of a new
section to the bill. Each of these modest measures represents sound
public policy that is consistent with the purposes and provisions of
the CVPIA, but which will benefit from further legislative
authorization to ensure they are actually carried out.
We appreciate your considering our views. We would be happy to
provide additional information if it would be helpful.
I. Suggested language to reaffirm the protections of CVPIA and other
applicable laws
Right now, the only federal law explicitly referenced as a
condition of the new transfers is the San Joaquin River Restoration
Settlement Act. Like many other stakeholders, we believe it would be
more reasonable and provide better protection for the public to broaden
that condition to include all applicable laws, including the CVPIA.
Here is our proposed replacement language for Section 2(b):
(b) CONDITION--A transfer under subsection (a) shall be
subject to the condition that the transfer is consistent with:
(1) The provisions of the Central Valley Project Improvement
Act (except to the extent section 3405(a)(1) is expressly
modified by subsection (a) above), the National Environmental
Policy Act, the San Joaquin River Restoration Settlement Act,
and all other applicable provisions of federal and state law;
and
(2) The Settlement in Natural Resources Defense Council v.
Rodgers, CIV-S-88-1658-LKK (E.D. California), as identified in
Section 10003 of Public Law 111-11; 123 Stat. 1349.
II. Suggested language to provide mitigation for adverse impacts to
refuges and wetlands
As we indicated in our prepared Testimony for the November 5th
hearing, Grasslands and other participants in the Central Valley Joint
Venture believe there are a number of ways that the provisions of S.
1759 could adversely impact the acquisition of sufficient water for
Central Valley refuges and wetland areas. Accordingly, we have proposed
three specific, albeit modest provisions which we request be added to
the legislation to help address these unintended consequences and to
help ensure these adverse impacts will be properly mitigated. The
proposed language is attached and includes provisions (a) to facilitate
use of carry over storage for unused refuge water supplies, (b) to
facilitate transfers between and among federal, state and private
wetland areas that receive CVP water, and (c) to direct Reclamation to
develop and implement a process for securing the necessary budget for
fully implementing Level 4 water deliveries that are authorized by the
1992 CVPIA.
Thank you again for considering our additional views on this
legislation.
Sincerely,
Hamilton Candee,
On behalf of Grassland Water District.
Attachment.--Proposed Amendments to S. 1759 (Water Transfers
Facilitation Act): 11-18-09
sec. 6. mitigation for central valley wetlands and refuges
In order to help offset potential adverse impacts to Central Valley
refuges and other wetland areas receiving water supplies under section
3406(d) of the CVPIA (collectively ``CVPIA refuge areas''), and in
furtherance of the purposes of CVPIA, the Commissioner, in consultation
with the Director of the US Fish and Wildlife Service, shall within 180
days of the enactment of this Act, and consistent with applicable law,
do each of the following:
(a) Develop and implement a plan, a copy of which shall be
submitted to the relevant oversight committees of Congress, to ensure
that refuge water supplies that are provided pursuant to CVPIA section
3406(d) will be offered ``carry-over'' water storage opportunities in
CVP storage facilities equivalent to those afforded other CVP water
uses, including agricultural and municipal & industrial contractors. In
the plan, the Commissioner shall also identify the terms and conditions
established by the CVP for ``carry-over'' storage opportunities for
irrigation customers as well as the terms and conditions for ``carry-
over'' storage that will be offered to federal, state and other CVPIA
refuge areas receiving water pursuant to section 3406(d).
(b) Develop and implement a process to facilitate and expedite
water transfers between CVPIA refuge areas, to enable those waters
conserved by any CVPIA refuge area in any given year to be offered and
delivered to any other CVPIA refuge area for the purpose of meeting the
goals and purposes of CVPIA, including achieving Level 4 water supply
needs and furthering Level 2 diversification opportunities as
referenced in Section 3406(d).
(c) Develop and submit to the Congress projected one year, 3 year
and five year budgets for the long-term acquisition of water supplies
necessary to provide to CVPIA refuge areas their full Level 4 water
supply needs as identified pursuant to the CVPIA. The Commissioner
shall also identify where in the future budget request for the Bureau
of Reclamation funds will be allocated to meet these projected budgets.
______
Audubon California,
Sacramento, CA, November 18, 2009.
Hon. Dianne Feinstein,
Attn: Leah Russin,
U.S. Senate, Washington, DC.
Re: Comments on S. 1759
Dear Ms. Russin: We appreciate the opportunity to comment on
Senator Feinstein's bill, S. 1759 (bill). Audubon California respects
the need to transfer water to affected farmers in order to help reduce
the loss of agricultural productivity and to minimize unemployment due
to the drought. Such efforts however, need to be accompanied by key
provisions to protect against unintended consequences and to fully
mitigate for adverse impacts. Previous state and federal laws
addressing water transfers have recognized the potential for adverse
impacts and the need for third party protections. S. 1759 should as
well.
Unlimited or poorly designed transfers can cause significant harm
to Valley farmers, communities and the environment unless they are
handled properly. CVPIA water transfer limitations were instituted
specifically to avoid such impacts including the risk of increasing
groundwater overdraft to replace transferred water supplies. The
proposed changes to water transfers legislation must similarly avoid
unintended impacts and mitigate for unavoidable impacts.
Our comments relate to the bill's language that:
1) could impact essential water supplies for national
wildlife refuges and state wildlife areas as mandated by the
CVPIA;
2) addresses the processes for analyzing impacts on listed
species and overall environmental effects (Sec. 2);
3) references the applicability of other laws and agreements
(Sec. 2 and 3);
4) specifies the geographic scope of the transfers (Sec. 2);
and
5) specifies the content of a report by the Commissioner of
the Bureau of Reclamation ordered by this legislation (Sec. 4).
1. Refuge Water Supply
A major environmental accomplishment of CVPIA was the commitment to
deliver to refuges and wildlife areas in the Central Valley a firm
(Level 2) yield of 422,252 acre-feet, 37% of the annual water needs for
existing wetlands. In addition, CVPIA mandated that an additional
133,264 acre-feet of so-called Level 4 water be acquired over a ten-
year period commencing in 1992, thus ensuring that roughly half of
refuge water needs would be met by the project. Since 1992 legally
mandated water supplies for the refuges has fallen short by a full
40,000 acre-feet from mandated Level 4 quantities. In 2008, refuge
water supplies reached approximately 450,000 acre-feet, a full 100,000
acre feet below congressionally mandated levels.
We remain concerned that as written S. 1759 would allow a broader
range of all CVP contractors to compete--with fewer limitations--for
the water usually obtained by the refuges from existing CVP sources.
This could in turn greatly increase the cost or reduce the availability
of water that federal and state refuges currently depend on toward
meeting their Level 2 and Level 4 water needs as promised by CVPIA.
Congress should ensure that all federal water transfer actions fully
mitigate against wetlands becoming a ``third party impact.''
2. Environmental Review Processes
The environmental impacts analysis called for by the legislation
should include in addition to the species listed, wetlands, wetlands
dependent wildlife and/or species covered by the Migratory Bird Treaty
Act. For example, one of the areas targeted by the legislation, the
Sacramento Valley, is home to significant wetland-dependent species and
is one of America's most important habitats for migratory birds. The
maintenance and restoration of federal and state wildlife areas in the
Central Valley is a stated purpose of the CVPIA itself and including
mitigation measures that protect such wildlife areas will help ensure
that there are no unintended impacts from new provisions that expedite
water transfers.
The bill mandates that the Interior Department must expeditiously
issue all permits necessary to facilitate water transfers. It is our
understanding that the Department is already in the process of
developing a comprehensive environmental review on issues that pertain
to water transfers in the CVP. Further, as specified by the relevant
language in the 2010 Energy and Water Appropriations Bill the
Department through the Fish and Wildlife Service has been instructed as
soon as is practicable to ``revise, finalize, and implement the
applicable draft recovery plan for the Giant Garter Snake (Thamnophis
gigas).'' Therefore we question whether '2 of the bill is actually
necessary to bring added efficiency to the water transfer process.
3. Applicability of other laws and agreements
We appreciate that the bill includes a condition to ensure no
impacts to the San Joaquin River Settlement. This protection should be
expanded so that any transfers are conditioned to ensure they are
consistent with all other applicable federal and state laws, including
but not limited to ESA, NEPA, CVPIA and state water transfer laws.
4. Geographic Scope of Sec. 2
It is not clear to us whether or not '2 of the bill would apply to
transfers through the Delta. It is our understanding that the author's
intent in '2 focuses only on south of the Delta transfers with no
intention to increase export demands on the Delta.
5. Bureau of Reclamation Report
The Report on Transfers called for by the bill would not speak to
past problems involving water transfers such as the allowance for
certain current transfers to proceed without complying with CVPIA
conditions simply by employing questionable contract assignments or
forbearance agreements that avoid restoration charges required by
CVPIA. We suggest that any new water transfer study mandated by this
bill should also require a report on these existing problems including
previous experience on the water costs for Level 4 refuge water supply
purchases occurring alongside water transfer activity.
In addition to these specific recommendations, we believe that
modest amendments to the legislation could be helpful in addressing the
unintended impacts of additional water transfers to the refuge water
supply. We endorse the proposed language offered by the Grassland Water
District in their November 18, 2009 letter to Senators Feinstein,
Stabenow and Boxer that would 1) facilitate the use of carry over water
for unused refuge water supplies; 2) facilitate transfers between and
among federal, state and private wetland areas that receive CVP water;
and 3) directs Reclamation to develop and implement a process to secure
funding to fully implement Level 4 funding for refuge water supplies as
mandated by CVPIA. Including these provisions as a new section in the
bill would be beneficial toward meeting the important wetland
conservation goals of the CVPIA and would be consistent with the ``get
the water where it is needed'' intent in the bill.
Thank you for your consideration of our views. We look forward to
working with the Senator and the Senate Committee on Energy and Natural
Resources to achieve an outcome that makes water more available to
agriculture in a manner that avoids or minimizes unintended
environmental consequences.
Sincerely,
Daniel Taylor,
Director of Public Policy.
______
Statement of Dan Taylor, Audubon California, Sacramento, CA
comments on current legislation pertaining to central valley project
water transfers
Audubon California respects the need to transfer water to affected
farmers in order to help reduce the loss of agricultural productivity
and to minimize unemployment due to the drought. Such an effort
however, needs to be accompanied by key provisions to protect against
unintended consequences and to fully mitigate for adverse impacts.
Previous state and federal laws addressing water transfers have
recognized the potential for adverse impacts and the need for third
party protections. These new transfers bills should as well.
Unlimited or poorly designed transfers can cause significant
harm to Valley farmers, communities and the environment unless
they are handled properly. CVPIA water transfer limitations
were instituted specifically to avoid such impacts including
the risk of increasing groundwater overdraft to replace
transferred water supplies. The proposed changes to water
transfers legislation must similarly avoid unintended impacts
and mitigate for unavoidable impacts as well.
The environmental impacts analysis called for by the
legislation should include in addition to listed species,
wetlands, wetlands dependent wildlife and/or species covered by
the Migratory Bird Treaty Act. For example, one of the areas
targeted by the legislation, the Sacramento Valley, is home to
significant wetland-dependent species and is one of America's
most important habitats for migratory birds. The maintenance
and restoration of federal and state wildlife areas in the
Central Valley is a stated purpose of the CVPIA itself and
including mitigation measures that protect such wildlife areas
will help ensure that there are no unintended impacts from the
new provisions.
Congress should ensure that all federal water transfer
actions fully mitigate against wetlands becoming a ``third
party impact.'' For example moving water away from wetland and
agricultural regions can result in higher water market prices
that wetlands management agencies cannot afford. Therefore,
adding provisions to facilitate the movement of water between
refuges can help carry out one of CVPIA's important goals while
also helping to minimize new impacts from this legislation.
If the transfers bills as written became law a broader range
of all CVP contractors would be able to compete--with fewer
limitations--for the water usually obtained by the refuges from
existing CVP sources. This could in turn greatly increase the
cost or reduce the availability of water that federal and state
refuges currently depend on toward meeting their Level 2 and
Level 4 water needs as promised by CVPIA.
The bills appear to mandate that the Interior Department
must expeditiously issue all permits necessary to facilitate
water transfers. Unless corrected this wording could
potentially undermine objective review and assessment of
transfers impacts, both social and environmental.
The Report on Transfers called for by the bills says nothing
about addressing past problems areas such as Reclamation
allowing certain current transfers to proceed without complying
with CVPIA conditions simply by employing questionable contract
assignments or forbearance agreements to get around the
restoration charges required by CVPIA. Any new legislation
calling for a new study of CVPIA transfers should also require
a report on these existing problems with implementing water
transfers.
Transferred water should be required to be used locally by
effected farmers and should not be eligible for sale or trade
on a secondary market.
The legislation can help address potential impacts to
refuges by facilitating wetland-to-wetland water transfers to
allow managers to get CVPIA water where it is needed most in
any given year. If CVPIA refuge supplies are not needed by one
refuge area but could be beneficially used by other refuge
areas, wetland managers should be afforded the same ability as
any other water user to put diminishing water supplies to the
best use for the needs of wildlife.
The current bills include a condition to ensure no impacts
to the San Joaquin River Settlement. This protection should be
expanded so that any transfers are conditioned to ensure they
are consistent with all other applicable federal and state
laws, including but not limited to ESA, NEPA, CVPIA and state
water transfer laws.
______
Banta-Carbona Irrigation District,
Tracy, CA, October 2, 2009.
Hon. Dianne Feinstein,
331 Hart Senate Office Building, Washington, DC.
Hon. Dennis Cardoza,
1224 Longworth Building, Washington, DC.
Hon. Jim Costa,
1314 Longworth House Office Building, Washington, DC.
Re. ``Water Transfer Facilitation Act of 2009''
Dear Honorable Public Servants: We encourage you to pass this
proposed bill as it can only help Californians best use the waters
within the state. It is a waste of storage and conveyance systems to
limit the uses of these facilities to strictly one brand of water, ie.
CVP water. When facilities can be used to move various sources of water
to diverse destinations and beneficial uses then the facilities are
doing the most good for the American public. These public facilities
will then better serve municipal, industrial and agricultural water
needs while the environment is being served during times of drought.
This bill will clarify a portion of law that federal regulatory
agencies are interpreting in such a way as to prevent conveyance and
storage of otherwise legal water transfers within the State of
California in Federal facilities. Please pursue passage of this
legislative correction.
Sincerely,
David Weisenberger,
General Manager.
______
Butte Environmental Council,
Chico, CA, November 4, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
Hon. Barbara Boxer,
U.S. Senate, 112 Hart Senate Office Building, Washington, DC.
RE: BEC concerns regarding S. 1759: Central Valley Project water
transfer facilitation
Dear Senators Feinstein and Boxer: BEC opposes the pending transfer
legislation bills (S-1759 and HR-3750): they are inappropriate and
unnecessary. These bills are shortsighted attempts to dismantle the
Central Valley Project Improvement Act (CVPIA), and call for permanent
authority to approve and expedite transfers beyond what law currently
allows. These bills essentially link the State Water Project (SWP) and
Central Valley Project (CVP) and institutionalize water transfers.
Delta exports have reached unsustainable all-time highs -greater
demands, increasing populations, climate change, and diminishing
supplies-pointing to a collapse of epic proportions. There are no
remaining great quanti ties of water that will fix this system. We
cannot engineer or legislate our way out of this dilemma. The
unintended consequences are numerous and many remain unquantifiable.
Especially troublesome is further facilitation of more transfers from
the north to the south because these transfers have a direct and
historic effect in the form of groundwater mining and depletion.
Section 3405(a)(1) (J) The Secretary shall not approve a
transfer authorized by this subsection unless the Secretary
determines, consistent with paragraph 3405(a)(2) of this title,
that such transfer will have no significant long-term adverse
impact on groundwater conditions in the transferor's service
area.
The provisions set in Section 3405(a) of the CVPIA are currently
ignored and transfers take place without the appropriate oversight and
research. Transfers must not increase total water used or stored during
the driest times of the year. Groundwater substitution plays a major
role in producing the water for transfers that originate north of the
Delta. In our region, groundwater substitutions impact an aquifer
system directly connected to the Tuscan aquifer. This system underlies
6 North Valley and foothill counties and is crucial for many endangered
species and threatened habitats. There are approximately 17,000 private
wells over the Tuscan, with the vast majority being domestic wells.
Homes scattered throughout the rural areas have no other water source.
If the Senate promulgates this bill, it must adhere to CVPIA and
address the following:
Applies to specific emergency conditions only-this should
protect from willing sellers out to make a profit and curtail
dependency and ever increasing demands south of the Delta.
HR-1759, Sec. 3(b) must be expanded to include recognized
species of HCP/NCCPs of affected regions. It must also include
all applicable environmental reviews, permitting, and
consultations, including the environmental documentation needed
to address groundwater quantity and quality.
The Department of the Interior should lead the retirement of
western San Joaquin Valley lands per the March 2007 Record of
Decision and support the development of a comprehensive
approach to sustaining the water supply in the North State. The
natural systems cannot be further disrupted, salmon runs and
wetlands must be improved from years of disruption that has
caused the current endangerment of many species.
BEC hopes that you recognize that groundwater substitutions are
already occurring and that these bills will further the abuse and
decimation of one of the last functioning, natural groundwater
dependent ecosystems in the State. Consider this unintended consequence
and reevaluate the purpose of your bill.
Sincerely,
Carol Perkins,
Water Resource Advocate.
[The article ``Reaping Riches in a Wretched Region: Subsidized
Industrial Farming and its Link to Perpetual Poverty'' by Lloyd G.
Carter has been retained in subcommittee files.]
______
California Water Impact Network,
California Sportfishing Protection Alliance,
Santa Barbara, CA, November 3, 2009.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, 304 Dirksen Senate
Building, Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Committee on Energy and Natural Resources, 304 Dirksen
Senate Building, Washington, DC.
Re: Water Transfer Facilitation Act of 2009-S 1759
Dear Chairman Bingaman, Ranking Member Murkowski and Members of the
Water and Power Subcommittee: We hereby request that this
correspondence be included in the hearing record for S 1759 and that it
be provided to the committee members in anticipation of the hearing on
November 5, 2009.
Our organizations oppose the Water Transfer Facilitation Act of
2009 as introduced. As California continues to seek resolution to water
conflicts, we agree that water transfers can play a role but we point
out that there is already comprehensive water transfer authority in the
Central Valley Project Improvement Act (CVPIA). Pub. L. 102-575
Sec. 3405. Moreover, significant progress in facilitating water
transfers has already been made by the Bureau of Reclamation and the
California Department of Water Resources through the federal/state
Drought Water Bank. Reclamation and DWR successfully petitioned the
California State Water Resources Control Board to combine the Permitted
Places of use for the Central Valley Project and State Water Project.
However, without adequate protections, the language contained in S.
1759 will go too far to expedite transfers, and will likely create a
market for paper water, create third party impacts, impact federal
Indian Tribes, and further exacerbate regional conflicts over water in
California.
A determination of availability and need for additional water to be
transferred must precede any transfers and should come from a
comprehensive package of facts. Since we are committed to working with
you toward a sustainable hydrologic future for California, we
respectfully urge you to amend the bill to prevent redirected impacts
to other beneficial uses of water. Our specific concerns and
suggestions are provided below.
Section 2
Section 2 (a), as written, creates a water transfer market for
paper water-water that does not exist. Paper water would be created
through exemption of transfers from the existing requirement in
paragraphs (A) and (I) of section 3405(a)(1) of the CVPIA that
transferred water not exceed the actual 3 year average delivery amount
and the requirement to show proof that the transferred water would
otherwise be beneficially used or irretrievably lost during the time
period of the transfer. This exemption will likely result in additional
upstream reservoir drawdown and an impact on water supplies for CVP-
dependent rivers and wildlife refuges.
The legislation, as proposed is also redundant in its description
of eligible CVP contractors in Section 2(a)1 which refers specifically
to the CVP's San Felipe, West San Joaquin, and Delta division
contractors as eligible for water transfers , but they are also
included again in the description of all CVP contractors, past and
present in Section 2(a)2 as eligible for water transfers.
Section 2(b) creates a preferential status for the San Joaquin
River Restoration Program over any other CVPIA program, something never
done before for ANY portion of a CVP program. It also supersedes
federal and state area of origin protections by favoring the one CVP
river system-the San Joaquin, which is a net importer of water, over
other basins such as the Sacramento, Trinity and American river basins
which are net exporters of water to the San Joaquin and Tulare basins.
It further aggravates the continued failure of the Bureau of
Reclamation to charge CVP contractors for restoration of the Trinity
River as pointed out by the Hoopa Valley Tribe in their October 22nd
letter.
Section 2(a) of the legislation, by exempting transferred water
from proof of actual beneficial use, will further delay fulfillment of
Federal Indian Trust responsibilities arising under Section 3406(b)(23)
of the CVPIA. As pointed out in the letter by the Hoopa Valley Tribe,
it would do so financially. However, we believe it may also do so
physically by transferring water stored in Trinity Reservoir which is
specifically dedicated to the preservation and propagation of the
Trinity River fishery. It also jeopardizes stored in Trinity, Shasta,
Folsom and other CVP reservoirs specifically dedicated to Central
Valley fisheries and wildlife refuges made available under CVPIA
Sections 3406(b)(2) and 3406(d), respectively.
The attached* 1977 Interior Solicitor's Opinion on a request by the
Grasslands Water District for additional water supplies explains the
federal obligations to protect areas of origin such as the Trinity
River from impacts to export water to areas such as the Grasslands
during periods of drought.
---------------------------------------------------------------------------
* Document has been retained in subcommittee files.
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We therefore recommend that Section 2(a)1 be deleted in its
entirety, and that if this legislation is adopted in any form it
include a condition on transfers that requires as a prerequisite the
fulfillment of the contractors' payment obligations and establish
additional protections for the Trinity River and Central Valley fish
and wildlife refuges as provided in Sections 3406(b)2 and 3406(b)23)
and 3406(d) of Public Law 102-575 by adding them as prohibitions of
harm under new Sections 2(b)3, 2(b)4) and 2(b)(5), respectively:
(3) The protection of Central Valley fish and wildlife water
supplies, as described in Section 3406(b)(2) of Public Law 102-
575
(4) The Trinity River Restoration Program, as described in
Section 3406(b)23 of Public Law 102-575, and as embodied in the
Interior Secretary's December 2000 Trinity River Record of
Decision
(5) Central Valley Refuges and Wildlife Habitat areas, as
described in Section 3406(d) of Public Law 102-575.
Section 3
We appreciate your emphasis to follow all environmental laws to
analyze the impacts to both the areas of origin and the receiving areas
from Central Valley Project water transfers. As you are aware, the
Bureau of Reclamation and the California Department of Water Resources
have struggled to produce programmatic federal and state environmental
review for water transfers (including those proposed in your bill)
since the signing of the Sacramento Valley Water Management Agreement
in 2001. We suggest that beyond emphasizing that the Bureau of
Reclamation, `` . . . shall initiate and complete, on the most
expedited basis practicable, the programmatic development of
environmental documentation to facilitate voluntary water transfers
within the Central Valley Project,'' that you add companion language
that will protect the areas of origin from harm.
A programmatic National Environmental Policy Act document will not
be completed for 2010 transfers and very likely won't be finished even
for 2011 water transfers. In light of that fact, we request that you
add the following provisions that will safeguard family farms,
communities, and myriad species:
Prohibit ground water substitution.
Fallowing patterns should err on the side of preventing
species impacts.
All water transfers under this bill must be monitored by
independent, third parties that are paid for by the buyers and
hired through USFWS or NMFS
Past experience demonstrates just how destructive surface water
sales with ground water substitution can be in the northern Sacramento
Valley. For example, in 1994, following seven years of low annual
precipitation, Western Canal Water District and other irrigation
districts in Butte, Glenn and Colusa counties exported 105,000 af of
water extracted from the Tuscan aquifers to buyers outside of the area.
This early experiment in the conjunctive use of the groundwater
resources--conducted without the benefit of environmental review--
caused a significant and immediate adverse impact on the environment.
(Msangi 2006). Until the time of the water transfers, groundwater
levels had dropped but the aquifers had sustained the normal demands of
domestic and agricultural users. The water districts' extractions,
however, lowered groundwater levels throughout the Durham and Cherokee
areas of eastern Butte County. (Msangi 2006). The water level fell and
the water quality deteriorated in the wells serving the City of Durham.
(Scalmanini 1995). Irrigation wells failed on several orchards in the
Durham area. One farm never recovered from the loss of its crop and
later entered into bankruptcy. Residential wells dried up in the upper-
gradient areas of the aquifers as far north as Durham.
In 2009, the U.S. Fish and Wildlife Service failed to comply with
the ESA and provide information necessary to establish the impact on
the threatened giant garter snake. The Service also failed to provide
measures to minimize the impact of take from transfers. To fully comply
with the law and minimize the potential for legal challenges to surface
water transfers, your bill could emphasize the importance of including
the essential baseline data and mitigation measures to protect the
species.
Section 4
The Bureau of Reclamation could bring to Congress many of the facts
that have been absent from the water transfer debate. For example, a
State Water Resources Control Board Strategic Plan report\1\ (2008)
reveals that there are rights, permits, and licenses for at least five
times the amount of water than exists. A review of the Bureau of
Reclamation's seven Trinity River water permits reveals that
Reclamation has permits to store and divert twelve times the average
annual flow of the Trinity River at Lewiston (Stroshane 2009). It is
also well known that many speculators in hydrologically dry area of
California have abused their own water supplies, and some have planted
permanent crops even when their contracts clearly articulate that there
will be years that water deliveries may drop to zero. To the detriment
of all Californians, local, state, and federal agencies have failed to
stop blatantly wasteful and inappropriate uses and diversions of water
and have failed to pursue aggressive planning for regional water self-
sufficiency. The water transfer legislation, as proposed, encourages
more of the same.
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\1\ See page 10, paragraph 2 at http://www.waterboards.ca.gov/
water_issues/hot_topics/strategic_plan/2007update.shtml
---------------------------------------------------------------------------
Conclusion
We appreciate your consideration of our concerns. If you decide
after hearing testimony, that there is still a need and desire to move
ahead with this legislation, we urge you to strongly consider our
recommendations so that you do not, in your haste to facilitate water
transfers,redirect impacts to the areas of origin, harm Central Valley
fish and wildlife, and violate Federal Indian Trust responsibilities to
the Hoopa Valley and Yurok Tribes.
Sincerely,
Carolee Krieger,
President, California Water Impact Network.
Bill Jennings,
Chairman, California Sportfishing Protection Alliance.
______
Statement of Tovey Giezentanner, President and CEO, Conaway
Preservation Group, LLC, Woodland, CA
On behalf of the Conaway Preservation Group, LLC (CPG), thank you
for introducing legislation authorizing and establishing a permanent
long-term program to promote and manage water transfers in the Central
Valley of California. We support your efforts and this legislation as a
means of providing greater flexibility in the management of Central
Valley Project (CVP) and other water supplies to help meet unmet needs
critical to the future of the State of California.
As you are aware, the devastating impacts of diminished water
deliveries to the CVP as a result of three years of below average
precipitation have been made even greater by the various regulatory
restrictions, including the requirements established by the recent
federal biological opinions for endangered fish under the ESA. Your
legislation will provide immediate, much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP. Further, the language
in your legislation directing the Bureau of Reclamation to work with
other federal agencies to develop the necessary long-term environmental
documentation addressing impacts of a water transfer program on the
ESA-listed Giant Garter Snake is a critical and necessary near-term
next step.
CPG owns the Conaway Ranch in Yolo County. The Conaway Ranch
property covers more than 17,000 acres on the west side of the
Sacramento River between the cities of Davis and Woodland. Conaway
Ranch has been operated for many years to meet goals of agricultural
production and waterfowl/wildlife habitat. Approximately 40 percent of
the Ranch is located within the Yolo Bypass and the remainder lies west
of the bypass. Conaway Ranch's water rights and Bureau of Reclamation
Settlement Contract are held by CPG. CPG's Settlement Contract water is
a major contributor to the Conaway Ranch water supply during its annual
summer operational term of April 1 through October 31.
We look forward to working with you and your staff in the coming
months in this important legislative effort, and appreciate your
leadership in advancing this legislation and addressing California
water issues so important to our collective future.
______
Department of Commerce,
National Marine Fisheries Service,
Long Beach, CA, November 2, 2009.
Ms. Kathy Mrowka,
State Water Resources Control Board, Division of Water Rights, PO Box
2000, Sacramento, CA.
Dear Ms. Mrowka: By this letter, NOAA's National Marine Fisheries
Service (NMFS) registers its protest to the US Bureau of Reclamation's
(USBR) Petitions for Extension of Time petitions for the Central Valley
Project (CVP) (Applications 5625, 5626, 5627, 5628, 9363, 9364, 9365,
9366, 9367, 9368, 13370, 13371, 13372, 14662, 14858A, 14858B, 14859,
15374, 15375, 15376, 15764, 16767, 16768, 17374, 17375, 17376, 18115,
19303, 19304, 21542, 22316, 27319).
NMFS is responsible for managing fisheries under the Magnuson-
Stevens Fishery Conservation and Management Act and for implementation
of the Federal Endangered Species Act ESA with respect to marine
species, including anadromous fish. NMFS' ESA responsibility includes
working with federal agencies to assist them in complying with their
ESA duty to avoid jeopardizing the continued existence oflisted species
or adversely modifying their critical habitat. (ESA Sec. 7(a)(2))
Further, the ESA provides that it is Congressional policy that all
Federal agencies shall cooperate with State and local agencies to
resolve water resource issues in concert with conservation of
threatened and endangered species. (ESA Sec. 2(c)(2))
NMFS is filing this protest to preserve party status in these
proceedings in order to work with the USBR and the State Water
Resources Control Board (SWRCB) for conservation of federally protected
marine species in the CVP service area; NMFS must bring its technical
expertise to bear in these proceedings if we are to fulfill our legal
mandates to manage and protect anadromous fish. There is substantial
uncertainty regarding future environmental conditions in the Sacramento
Valley and Trinity River Basin. Additionally, the feasibility of
providing conservation measures such as fish passage above currently
impassable dams remains unclear. We are concerned that the petitions at
issue could limit future operational flexibility and result in
significant adverse environmental impacts and, therefore, may be
contrary to the public interest.
Project Description
On July 23, 2009, the USBR filed petitions for extension of time to
put water to full and beneficial use for 32 water rights associated
with the Central Valley Project (CVP). These include 16 permits
previously approved under SWRCB decision 1641 (D1641), 9 permits for
power generation,\1\ permit for Black Butte Reservoir, and 6 permits
for the New Melones Reservoir. Operations covered under these permits
affect water supplies in the: Trinity River (Trinity Reservoir), Clear
Creek (Whiskeytown Reservoir), Sacramento River Shasta Reservoir,
American River (Folsom Reservoir), Stanislaus River, the San Francisco
Bay Delta, the Westside ofthe San Joaquin Valley, and the San Joaquin
River. Purposes of use include direct diversion and storage for
irrigation, stock watering, domestic, municipal and industrial use,
power production, fish and wildlife enhancement, salinity control,
water quality control, and recreation. The current petitions supersede
and replace USBR's September 19, 1985 petition and the June 26, 1996
request for partial amendment.
---------------------------------------------------------------------------
\1\ The power generation permits are companion filings to the
consolidated place of use consumptive use permits.
---------------------------------------------------------------------------
NMFS, the USBR, and other agencies (including the SWRCB) have been
working together to address fisheries issues in the Sacramento Valley
region for several years, and in several forums. Most recently,
pursuant to its duty to determine whether a proposed federal action is
likely to jeopardize the continued existence of any listed species, on
June 4, 2009, NMFS issued a Biological Opinion on the long-term
operation of the CVP and State Water Project (SWP) (the ``OCAP
Biological Opinion''). NMFS concluded that proposed operations were
likely to jeopardize five listed species and, as the ESA requires,
offered an extensive set of actions as a ``reasonable and prudent
alternative'' (RPA) for project operations that would be likely to
avoid jeopardizing these species. The USBR has provisionally accepted
the RPA. Consequently, the delivery of water by the CVP and the SWP is
governed by the terms of the NMFS RPA, as well as by other federal and
state decisions. In addition, NMFS and USBR are currently engaged in
formal ESA consultation regarding USBR Proposed Action to continue
operation of the Trinity River Division ofthe CVP from 2010 to 2030.
This consultation is scheduled to be completed in January of 2010.
Basis of Protest
Our protest is based on threats to the conservation of species
exposed to potential impacts of ongoing and future operations of the
CVP in the event petitions are granted without appropriate conditions.
These species include: Endangered Sacramento River winter-run Chinook
salmon (Oncorhynchus tshawytscha), Threatened spring-run Chinook salmon
(O. tshawytscha), Southern Oregon/Northern California Coasts coho
salmon (O. kisutch), Central Valley steelhead (O. mykiss), the Southern
Distinct Population Segment of North American green sturgeon (Acipenser
medirostris), and Southern Resident Killer Whales (Orcinus orca). The
storage, release, and diversion of surface flows at multiple facilities
affect stream flows, habitat conditions, and temperatures important to
the successful completion of spawning, rearing, and migration life-
stages for these protected fish, as well as for fall-run Chinook
salmon, an important commercial and recreational fishery and food
source for Endangered killer whales. Detailed analyses ofthese effects
are presented in the OCAP Biological Opinion and in the 2000 Trinity
River Biological Opinion.
A. Sacramento River
While NMFS' OCAP Biological Opinion concluded that the operations
under the RPA are not likely to jeopardize listed species, the
Sacramento Bay Delta ecosystem is extraordinarily complex, and future
environmental conditions are largely uncertain. Two important variables
are climate change and future growth patterns. NMFS used the best
scientific information available at the time of our analysis, including
current projections for climate change and future growth patterns, but
we expect that new answers to a variety of important questions will
become available during the coming years that could affect our analysis
and conclusions.
Federal regulations require that NMFS revisit a previous biological
opinion ``if new information reveals effects of the action that may
affect listed species or critical habitat in a manner or to an extent
not previously considered.' (C.F.R. Sec. 402.16) The Opinion requires
cooperative research to address many of these uncertainties. For
example, partially as a response to anticipated climate change in
California, the RPA requires that the project agencies lead studies to
determine how to provide fish passage above currently impassable dams
so fish can have access to cold water spawning habitat. The RPA's ``no
jeopardy'' conclusion rests in part on the assumption that fish passage
will be provided. If this turns out to be infeasible, modification of
project operations will most likely be necessary. These modifications
could require additional cold water releases from Shasta Darn to
provide suitable conditions for salmon spawning below the dam. Even
under the current ``no jeopardy'' RPA, there is still high mortality of
winter-run Chinook, and changed conditions could require provision of
additional cold water while passage is being studied and engineered.
However, depending on the nature of, and conditions appurtenant to,
the water rights that are the subject of those agreements, the USBR may
or may not be able to provide the cold water that could be required for
ESA compliance in the future. A federal court has ruled that the use of
a majority of stored water in Shasta is governed by settlement
agreements between the USBR and pre-existing water right holders. The
court determined that USBR has no discretion to amend the agreements.
If these water rights are not appropriately conditioned, via the
petition process, to allow measures to conserve listed species,
conservation of some species simply may not be possible.
The SWRCB proceedings in this matter are a key intersection of
federal and state law. Flexibility for USBR to comply with the ESA in
the future under changed conditions must be preserved if imperiled
anadromous species in the Sacramento Valley are to be conserved. The
SWRCB has the authority to preserve that flexibility by determinations
made in these proceedings. The proceedings provide an opportunity for
federal and state agencies to work in concert on critical water
resource issues, with NMFS contributing its technical expertise on
conservation strategies and fishery management.
B. Trinity River
The petitions do not conform to decisions previously made by
federal agencies and tribal governments regarding instream flow,
temperature, and minimum pool levels for the Trinity River. NMFS
completed formal ESA Section 7 Consultation on October 12, 2000 on the
flows provided by the Trinity River Record of Decision and concluded
that the flows would not jeopardize listed species. A flow regime
different than that consulted upon in the Biological Opinion may not
meet this standard. Similarly, the October 12, 2000 Biological Opinion
on the Trinity River assumed that the water temperature objectives and
the minimum pool levels would be met because they were either included
in the proposed action or formalized as an reasonable and prudent
measure. As submitted, these petitions may limit the potential for USBR
to comply with the ESA on the Trinity River in the future. We have
outlined the factual bases for our protest with regard to the Trinity
River, and specific recommendations for action, in the
``Recommendations'' section, below.
Recommendations
1. Evaluate alternatives associated with the allocation of
water rights under settlement contracts to address impacts of
CVP operations to stream temperatures for winter-run Chinook
salmon below Shasta Reservoir. The majority of the water stored
behind Shasta Dam has been deemed not subject to USBR
discretionary control. Additional alternatives could facilitate
future temperature compliance for winter-run Chinook salmon on
the Sacramento River, which is critically important to the
survival and recovery ofthis species.
2. Provide for operational consistency between flow regimes
in the CVP and the OCAP Biological Opinion RPA. NMFS and USBR
have agreed to a suite of protective measures using flow
manipulations of associated portions of CVP water that are
designed to avoid jeopardy to species. Fish resources would be
well served by insuring that all elements of the RPA are fully
integrated into the water rights permits and licenses held by
the USBR for the CVP.
3. NMFS has recently issued a public review draft of our
Central Valley Salmon and Steelhead Recovery Plan. This
document analyzes current conditions and threats to threatened
and endangered salmonids in the Central Valley and provides a
comprehensive suite of strategies and actions to achieve their
recovery. With protest standing, our agency will be better able
to provide technical assistance to the USBR and SWRCB for the
purposes of integrating recovery strategies into CVP
operations.
4. The petitions do not include the U.S. Interior
Department's 2000 Record of Decision that reduced diversions to
the Sacramento River from the Trinity River from 90 to 53
percent of average annual Trinity River runoff. The petitions
call for minimum instream flows for the Trinity River of
120,500 acre feet, well below the minimum agreed upon in the
2000 Trinity River Record of Decision. USBR should submit a
petition that conforms to water volumes for the Trinity River
as established in Trinity River Record of Decision.
5. The petitions do not include Trinity River water
temperature objectives that were reviewed and adopted by the
Environmental Protection Agency EPA as an amendment to the
Water Quality Control Plan for the North Coast Region Basin
Plan approved by the State Board in Resolution No. 91-94 on
September 26, 1991. The Basin Plan amendment establishes site-
specific temperature objectives and an Interim Action Plan for
the Trinity River. The review of the temperature objectives
found them to be protective ofbeneficial uses on the Trinity
River, and to be based on sound scientific rationale. USBR
should submit a petition that includes these water temperature
objectives for the Trinity River.
6. The petitions do not include minimum pool levels for
Trinity Reservoir. NMFS established a 600,000 acre feet minimum
pooi level for Trinity Reservoir in the October 12, 2000
Biological Opinion on the Trinity River. This minimum pool
level was deemed necessary at that time to ensure sufficient
cold water resources to meet the temperature objectives. USBR
should submit a petition that includes minimum pool levels for
Trinity Reservoir.
Thank you for considering our protest of the above petitions. We
hope that by establishing a formal nexus for our agency to participate
in the review and conditioning ofthe subject permits via the SWRCB
permitting process, we may provide technical assistance and make
significant contributions to the survival and recovery of threatened
and endangered species and management of important commercial and
recreational stocks. Ifyou have any questions or comments concerning
this issue, please contact Steve Edmondson, Habitat Manager for
Northern California at 707 575-6052 or Steve.Edmondsonnoaa.gov.
Sincerely,
Rodney R. Mclnnis,
Regional Administrator.
______
Statement of C. Mark Rockwell, D.C., Endangered Species Coalition, Penn
Valley, CA, on S. 1759
I am writing for a second time on this legislation, and our group
letter, sent to you on November 3, 2009, is also attached for
reference. Our concern with the current legislation is that we feel it
does not adequately protect the environmental water designated for the
California Bay-Delta ecosystem, and for the central valley salmon
fishery (Central Valley Improvement Act(Title 34, Public law 102-575).
As you may know, under the CVPIA 800,000 acre feet of water, classified
as b(2) or surplus water, was supposed to be allocated for the purpose
of Bay Delta estuary protection/restoration, and to meet the salmon
doubling goals of the CVPIA legislation. Additionally, this water is
designated to allow the Secretary of Interior to meet Endangered
Species Act responsibilities to protect and recover listed salmon
species in the California central valley.
As you probably also know, the salmon doubling goals have never
been reached, and in fact, the central valley salmon populations have
severely declined to the point where salmon fishing in both California
and Oregon has been closed the past two years. This has caused both
economic hardship on many business and commercial fishing families, as
well as hardships on the recreational fishing communities in both
states. It has caused hundreds of millions of dollars to be lost to the
California economy, and contributed to the climbing unemployment
figures in these states. Loss of salmon is, frankly, a disaster for our
state.
One of the goals of this legislation is to make available water
easier to move within the state to those in need. However, as stated by
Senator Feinstein's staff, it has to be done with no un-intended
consequences. or negative impacts. We are concerned about negative
impacts to CVPIA goals and intent, as well as its impact on salmon
populations in the central valley. Therefore, we recommend the
following language to firm up the goals and prescribed outcomes of
CVPIA (in blue italics):
(b) CONDITION.--A transfer under subsection (a) shall be
subject to the condition that the transfer not interfere with--
--
(1) Implementation of Section 34060)(2) of the Central Valley
Project Improvement Ac (Title 34, Public Law 102-575),
partiarlarly with regard to the Secretary's obligations under
Section 3406(b)(1)(B) and the Endangered Species Act as spelled
out in that Section;
(2) the San Joaquin River Restoration Settlement Act (Public
Law 111-11; 123 Stat. 1349), including the priorities described
in section 10004(a)(4)(B) of that Act (123 Stat. 1350) relating
to implementation of paragraph 16 of the Settlement (as defined
in section 10003 of that Act (12320 Stat. 1349)); and
(3) the Settlement.
We feel this addition would achieve the goals of Senator Feinstein
and Boxer of making water easier to move to needed locations, while
continuing to protect the central valley salmon fishery, and meeting
the goals and objectives of the Central Valley Improvement Act. I can't
stress enough how important it is to recovery the west coast salmon
fishery for the economy and families of this state. We cannot risk any
further declines. People's livelihoods and families are at stake.
______
Environmental Defense Fund,
San Francisco, CA, November 4, 2009.
Hon. Dianne Feinstein
Hart Senate Office Building, Washington, DC.
Re: Environmental Defense Fund recommendations on S 1759 (water
transfers)
Dear Senator Feinstein: Environmental Defense Fund greatly
appreciates your efforts to help resolve California's pressing water
issues. In particular, we thank you for bringing balance to the
discussions and fending off attempts to undermine fundamental
protections of existing law, including, but not limited to, the federal
Endangered Species Act (ESA). EDF is engaged at all levels to find
solutions to these problems, including work on the pending state
legislation, participation on the Bay Delta Conservation Plan (BDCP)
steering committee, open dialogue with key players in the agricultural
and municipal water sectors and engagement with the Department of the
Interior on various issues. It is in this context of constructive
engagement that we offer the following comments on S 1759.
As you know, EDF is supportive of the use of appropriate market
mechanisms to solve environmental problems, and we played a central
role in including such provisions in CVPIA originally. The record is
clear that voluntary water transfers provide important economic
incentives to sellers and buyers alike, resulting in improvements in
agricultural efficiency and on-farm productivity. We thus appreciate
and agree with the general stated intent behind S 1759.
We do have a few concerns about S 1759 as filed. First, we are
concerned that Section 2(a) not undo basic important and carefully
negotiated provisions of CVPIA by providing too broad of an exemption
for certain transfers from Sec. 3405(a)(1) of the Act. We suggest the
following amendment to ensure that S 1759 is limited to intended
purposes of reducing non-environmental impact related barriers to
appropriate transfers and that it does not undermine the environmental
protection inherent in CVPIA (additional language in underlined):
Sec. 2 (b) Condition--A transfer under subsection (a) shall
be subject to all applicable provisions of existing state and
federal law and to the condition that it not interfere with . .
.
Second, we understand that the primary intent of Section 3 of S
1759 is primarily to streamline the process for review and approval of
through Delta transfers that may affect the giant garter snake,
currently listed as a threatened species under the federal ESA. EDF
generally supports this objective. However, we believe the language in
Section 3 of the bill as filed may be interpreted to go far beyond the
stated purpose. We suggest that Section 3 be amended to read as follows
(additional language in underline):
Sec. 3 (a) In General--As soon as practicable after the date
of enactment of this Act, the Secretary of Interior, acting
through the Director of the United States Fish and Wildlife
Service and the Commissioner of the Bureau of Reclamation
(referred to in this section as the ``Secretary), using such
sums as are necessary, shall initiate and complete, on the most
expedited basis practicable the programmatic development of
environmental documentation to facilitate voluntary water
transfers within the Central Valley Project, consistent with
all applicable provisions of state and federal law.
Third, we share the concern of the Grasslands Water District and
other members of the Central Valley Joint Venture that S 1759 should
guarantee no loss of water to wetlands. We ask that S 1759 include
language assuring that if a Central Valley refuge is unable to take
full delivery of its annual water allocation, the water is made
available to other refuges that are not in receipt of their full level
2 or level 4 supplies.
We are happy to discuss these issues further with your staff, and,
again, we appreciate all your efforts to help California meet the
overarching dual goals of water supply reliability and healthy river
and delta ecosystems.
Sincerely,
Mary E. Kelly,
Senior Counsel, Rivers and Deltas.
Spreck Rosekrans,
Senior Analyst.
______
Friant Water Users Authority,
Lindsay, CA, October 1, 2009.
Hon. Dianne Feinstein,
331 Hart Senate Office Building, Washington, DC.
Re: SUPPORT for Transfer legislation for the Central Valley Project
Dear Senator Feinstein, On behalf of Friant Water Users Authority
(Authority), we thank you for introducing transfer legislation for the
Central Valley Project (CVP) and we support your efforts and this
legislation as a means of providing greater flexibility for management
of CVP water supplies.
The diminished water deliveries to the CVP as a result of three
years of below average precipitation amplified by various regulatory
restrictions, including the ESA and the most recent delta smelt and
salmon Biological Opinions, have, as you know, created a desperate
situation in the San Joaquin Valley.
While long-term solutions are being sought, numerous short term
efforts are needed to help bridge the water supply gap and greater
flexibility, as provided in your legislation, to move water supplies
across the San Joaquin Valley would be a useful tool. In addition, the
legislation would help Friant districts affected by the SJR Settlement
improve management of surface and groundwater supplies.
The Authority consists of nineteen member water, irrigation and
public utility districts. The Friant Service area includes
approximately one million acres and 15,000 mostly small family farms on
the east side of the southern San Joaquin Valley (Madera, Fresno,
Tulare and Kern County). Friant Division water supplies are also relied
upon by several cities and towns, including the City of Fresno, as a
major portion of their municipal and industrial water supplies.
We look forward to engaging in this effort and working closely with
you and your staff in advancing this legislation and addressing
California water issues.
Sincerely,
Ronald D. Jacobsma,
Consulting General Manager.
______
Glen-Colusa Irrigation District,
Willows, CA, October 2, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
Re: Support for Water Transfer Legislation
Dear Senator Feinstein: On behalf of Glenn-Colusa Irrigation
District (GCID), we thank you for introducing legislation authorizing
and establishing a permanent long-term program to promote and manage
water transfers in the Central Valley of California. We support your
efforts and this legislation as a means of providing greater
flexibility in the management of Central Valley Project (CVP) and other
water supplies to help meet unmet needs critical to the future of the
State of California.
As you are aware, the devastating impacts of diminished water
deliveries to the CVP as a result of three years of below average
precipitation has been made even greater by the various regulatory
restrictions, including the requirements established by the recent
federal biological opinions for endangered fish under the ESA. Your
legislation will provide immediate, much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP.
GCID is the largest and one of the oldest diverters of water from
the Sacramento River, dating back to 1880. As a senior water right
holder and CVP Sacramento River Settlement Contractor, we believe we
can and will actively participate in this water transfer program. The
language in your legislation directing the Bureau of Reclamation to
work with other federal agencies to implement the necessary long-term
environmental processes addressing impacts of a water transfer program
on the ESA-listed Giant Garter Snake will be imperative to its
usefulness and success.
We look forward to working with you and your staff in the coming
months in this important legislative effort, and appreciate your
leadership in advancing this legislation and addressing California
water issues so important to our collective future.
Sincerely,
Thaddeus L. Bettner,
General Manager.
______
State Capitol,
Office of the Governor,
Sacramento, CA, November 4, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
Hon. Barbara Boxer,
U.S. Senate, 112 Hart Senate Office Building, Washington, DC.
Dear Senator Feinstein and Senator Boxer, I am writing to express
my support for S. 1759, the Water Transfer Facilitation Act of 2009. I
appreciate your efforts to help alleviate the conditions brought on by
drought in our state.
California is entering what could be its fourth consecutive year of
drought. The state has a history of supporting water transfers and in
2009 implemented a Drought Water Bank as a tool for helping with
worsening drought conditions. Given the challenges facing California's
water supply, water transfers are likely to play an increasingly
important role in meeting the state's water needs. My administration,
through the Department of Water Resources (DWR), is working in
partnership with the U.S. Bureau of Reclamation to facilitate transfers
in 2010. DWR and the Bureau of Reclamation are also working to develop
a long-term water transfers program.
I appreciate your recognition of the importance of this effort in
meeting California's water supply needs. As Congress considers this
legislation, I look forward to working with you and your colleagues to
ensure that the final version meets the needs of both California and
the federal government.
Sincerely,
Arnold Schwarzenegger,
Governor.
______
Grassland Water District,
San Luis & Delta-Mendota Water Authority,
Los Banos, CA, July 9, 2009.
Mr. Donald Glaser,
Regional Director, U.S. Bureau of Reclamation, 2800 Cottageway-MP100,
Sacramento, CA.
Dear Director Glaser: We are writing to request a meeting between
you, Pablo Arroyave, and ourselves--as respective representatives of
the San Luis & Delta-Mendota Water Authority and Grassland Water
District--to discuss the future of the Refuge Water Supply Program and
how wetland and agricultural interests can further our mutual goals
while meeting the mandates of the Central Valley Project Improvement
Act (CVPIA).
In that regard, the matter of the ``March'' toward Level 4
acquisition and Level 2 diversification are at the top of our agenda,
as well as how we might be able to improve upon the current structure
of the Refuge Water Supply Program. We both concur that just as Level 4
supplies are an obligation of the CVPIA, so is the requirement to
diversity sources of Level 2 supplies to alleviate pressure on
agricultural contractors. We wish to discuss how to move both of these
objectives forward, which we believe possess connectivity in terms of
the Bureau's ability to eventually meet both objectives. Our current
actions to work together to seek solutions to these issues are a
reflection of our commitment to work together. Nonetheless, the Bureau
maintains exclusive regulatory authority over actually meeting, and
thus funding, these objectives. It is in this regard we wish to meet
and begin a more formal dialogue as to how we can move forward.
We believe that as a starting point, it would be helpful to have
this meeting with you and Pablo Arroyave. We then envision a follow-up
meeting with other members of your staff to further refine the ideas
which we will develop at this meeting.
We are both ready to make ourselves available to you based on your
schedule. Considering recent actions related to changes in Refuge Water
Supply Program staffing, and the yet to be released PART document
related to the refuge water program, we believe it is important we meet
at your earliest convenience.
Thank you for your consideration of our request. We look forward to
your response.
Sincerely,
David L. Widell,
General Manager, Grassland Water District.
Daniel G. Nelson,
Executive Director, San Luis & Delta-Mendota Water Authority.
______
Hoopa Valley Tribal Council,
Hoopa Valley Tribe,
Hoopa, CA, October 26, 2009.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, 304 Dirksen
Building, U.S. Senate, Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Committee on Energy and Natural Resources, 304 Dirksen
Building, U.S. Senate, Washington, DC.
Hon. Nick J. Rahall II,
Chairman, Committee on Natural Resources, 1522 Longworth Building, U.S.
House of Representatives, Washington, DC.
Hon. Doc Hastings,
Ranking Member, Committee on Natural Resources, 1522 Longworth
Building, U.S. House of Representatives, Washington, DC.
Dear Chairmen and Ranking Members: S. 1759 and H.R. 3750 would
interfere with fulfillment of a long-deferred federal trust
responsibility owed to the Hoopa Valley Tribe that was identified in
the Central Valley Project Improvement Act (CVPIA). Pub. L. 102-575
Sec. 3406(b)(23) (October 30, 1992). The purpose of this letter is to
request an amendment to the legislation that would ensure
implementation of the requirement in the CVPIA that the cost of Trinity
River restoration be paid as a cost of service by Central Valley
Project (CVP) contractors. These contractors have repeatedly and
persistently fought to avoid their statutory and contractual financial
obligations to Trinity River restoration. They should not be provided
any further benefits of Trinity River water until they recognize and
pay for the full cost of Trinity River restoration. Also, many of these
same contractors oppose the fulfillment of the CVP water supply
obligations to Trinity River basin communities established by Congress
in 1955 when it authorized the Trinity River Division.
The Tribe will respectfully oppose this legislation unless the
issues we raise are resolved favorably to our Tribe.
Below are a proposed amendment, an explanation of the need for the
amendment, and a background statement of the Hoopa Valley Tribe's
interest in this legislation. In the event your Committees hold
hearings on this legislation, we request that this letter be include in
the record of your proceedings.
1. Amendment
Add at the end of section 2:
(c) The Secretary shall not approve a transfer authorized by
this section unless the Secretary determines first that there
are funds appropriated and presently available to meet the
costs of implementing the Trinity River Mainstem Fishery
Restoration Record of Decision adopted by the Secretary with
the concurrence of the Hoopa Valley Tribe pursuant to section
3406(b)(23)(B) of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575; 106 Stat. 4720) in
the amount of $16,400,000 per year (October 2007 price levels)
through completion of construction and $11,000,000 per year
(October 2007 price levels) thereafter for so long as the
Trinity River Division of the Central Valley Project diverts
water to the Central Valley.
2. Statement of Need for the Amendment
S. 1759 and H.R. 3750 would authorize San Joaquin Valley CVP
contractors to market CVP water exempt from two critical conditions
established in the CVPIA. The first condition is that a contractor may
not market water that exceeds the average of the contractor's actual
use in the prior three years. Public Law 102-575Sec. 3405(a)(1)(A). The
second condition limits transfers to water that would have been
consumed or lost to beneficial use during the year of the transfer.
Public Law 102-575Sec. 3405(a)(1)(I). The elimination of the two
conditions will result in a financial windfall to the contractors at
the expense of both the federal taxpayers and restoration of
environmental damage caused by the diversion of Trinity River water to
the Central Valley.
In addition, the legislation would streamline environmental reviews
of the impacts of proposed water transfers. We support improved
efficiency in the application of environmental laws to economic
activity. We note, however, that many of the contractors who would
benefit by S. 1759 and H.R. 3750 spent nearly five years in court
between 2000 and 2004 trying to prevent restoration of the Trinity
River by invoking the same environmental laws under which S. 1759 and
H.R. 3750 would provide them with favored treatment.
The amendment the Tribe requests would ensure that no transfer
could occur unless CVP contractors, in paying for CVP water at the
``full cost or cost-of-service rates'' established by section
3405(a)(1)(B) of the CVPIA, included the cost of Trinity River
restoration in their payments. This amendment would not entail direct
spending. Rather, it would require that contractors pay as they go for
the benefits ofCVP water. We request that the Committees consider
making the amendment applicable to all transfers, not just those that
would be authorized by S. 1759 and H.R. 3750.
3. Background
The Trinity River Division of the CVP was authorized in 1955 and
completed in 1963. The Division is the only source of water imported by
the CVP. Congress included area-of-origin protections for the Trinity
River including one establishing flow release procedures for Trinity
River fish and wildlife preservation and propagation. The Bureau of
Reclamation informed Congress that it would divert approximately 50
percent of Trinity River water regulated by the Division. However,
until the enactment of the CVPIA in 1992, the Bureau consistently
diverted 90 percent. The Trinity River fishery was devastated.
Subsequently, several legislative, judicial, and administrative
initiatives culminated with the enactment of a Trinity River
restoration provision in the CVPIA. Public Law 102-575
Sec. 3406(b)(23); 106 Stat. 4720. The CVPIA required the Secretary of
the Interior and the Hoopa Valley Tribe to develop a restoration plan.
If the Secretary and Tribe concurred in the plan, the Secretary was
required to implement it according to its terms. Public Law 102-575
Sec. 3406(b)(23)(B). In 2000, the Secretary and the Tribe concurred in
a plan that retained approximately 47 percent of the Trinity River
Division's water in storage for scheduled releases to the Trinity River
for fishery restoration. To enable that amount of water to be effective
for restoration, the plan identified funding requirements to carry out
habitat restoration and construction, gravel replenishment, and various
monitoring programs that would have to remain in place so long as CVP
diversions continued.
The Trinity River restoration provision of the CVPIA concludes with
the statement:
Costs associated with implementation of this paragraph shall
be reimbursable as operation and maintenance expenditures
pursuant to existing law.
Public Law 102-575 Sec. 3406(b)(23). However, the Bureau of
Reclamation has not incorporated the full cost of Trinity restoration
in its operation and maintenance rate books or annual rate-setting
process, and funding has otherwise not been provided in the amounts
identified in the restoration plan by the Secretary and the Tribe. As a
result, critical restoration activities have not occurred in a timely
manner, some restoration activities have not been implemented according
to prescriptions in the restoration plan and have been ineffective, and
others have not been implemented at all. As a result, the fishery
remains in decline.
In the last Congress, legislation entitled ``Trinity River
Restoration Fund Act of 2007'' was introduced to address this issue.
H.R. 2733, 110th Cong., 1st Sess. The costs set out in the requested
amendment above were identified by the Secretary of the Interior in
consultation with the Hoopa Valley Tribe in February 2007 and were
included in H.R. 2733. The prior Administration subsequently opposed
enactment of H.R. 2733, and supported enactment of the San Joaquin
River Settlement that became law in April of this year. The San Joaquin
settlement included provisions promoted by San Joaquin Valley
contractors, among others, that undermined the future availability of
funds for all CVPIA restoration activities, including Trinity River
restoration. See Public Law 111-11 Title X Sec. 10007(2) and Draft
Central Valley Project Improvement Act Program Activity Review Report
at 41 (December 22, 2008) (The report concluded that the amount
available for CVPIA restoration activities will be reduced by enactment
of the San Joaquin River settlement.)
The primary beneficiaries of S. 1759 and H.R. 3750 will be some of
the same CVP contractors who not only secured enactment of the above-
mentioned reduction in their environmental restoration funding
obligation, but also have litigated and lobbied against the Trinity
River restoration program from its inception. Among them are west side
contractors who testified against enactment of H.R. 2733, the Trinity
restoration funding legislation, which would have offset the San
Joaquin settlement's financial impacts on environmental restoration.
The San Joaquin settlement was negotiated behind closed doors. When the
settlement was published in the fall of 2006, the Tribe immediately
notified the Committees and the Administration that it would harm the
Tribe's trust resources and undermine environmental restoration
funding. Several members of the House and Senate acknowledged our
concerns and pledged to address Trinity River restoration while urging
the Tribe to withdraw its opposition to the San Joaquin Settlement. Our
Tribe did withdraw its opposition. But the pledge from Congress remains
unfulfilled. As Supreme Court Justice Hugo Black wrote in 1960, ``Great
Nations, like great men, should keep their word.''
Instead, CVP contractors are on the verge of being rewarded for
their aggression with yet another special benefit in the form of S.
1759 and H.R. 3750. This is particularly offensive to our Tribe because
San Joaquin Valley irrigation operations profit from federally
subsidized water that is delivered at direct expense to our fishery.
The major portion of irrigation development on the west side of the San
Joaquin Valley was made possible by Trinity River diversions to the
CVP. See Senate Rept. 1154, 84th Cong. 1st Sess. 5 (1955). (``An
average of 704,000 acre-feet of Trinity River water would be diverted
annually to the Sacramento River Basin . . . and about 525,000 acre-
feet annually would be available for use on land of the west side of
the San Joaquin Valley.'') However, actual diversions prior to the
adoption of the Trinity River ROD in 2000 were far in excess of that,
often exceeding 1 million acre-feet annually. Trinity River Flow
Evaluation-Final Report Table 4.4 (1999).
S. 1759 and H.R. 3750 represent an opportunity to enforce the
existing obligations of CVP contractors, meet the federal trust
responsibility, and serve the goal of environmental justice.
Accordingly, we urge that you not let this legislation proceed in the
absence of the amendment we request. Your attention to this matter is
appreciated.
Sincerely,
Leonard E. Masten, Jr.
Chairman.
______
Metropolitan Water District of Southern California,
Los Angeles, CA, October 5, 2009.
Hon. Dianne Feinstein
U.S. Senate, SH-331 Hart Senate Office Building, Washington, DC.
Dear Senator Feinstein: The Metropolitan Water District of Southern
California is pleased to support the legislation you are introducing
related to water transfers for the Central Valley Project (CVP). This
legislation will help provide good water management while providing
flexibility for CVP customers.
As a regional wholesale water provider, Metropolitan provides water
for nearly 19 million people throughout our 6-county service area in
Southern California. As Metropolitan and the entire state continue to
address water supply challenges throughout California, the vitality of
our economy and environment has been seriously affected. Your proposed
legislation will help address these critically important issues.
Please let me know if we can be helpful in any way.
Sincerely,
Jeffrey Kightlinger,
General Manager.
______
Northern California Water Association,
Sacramento, CA, October 2, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
Re: Support for Water Transfer Legislation
Dear Senator Feinstein: On behalf of the Conaway Preservation
Group, LLC (CPG), thank you for introducing legislation authorizing and
establishing a permanent long-term program to promote and manage water
transfers in the Central Valley of California. We support your efforts
and this legislation as a means of providing greater flexibility in the
management of Central Valley Project (CVP) and other water supplies to
help meet unmet needs critical to the future of the State of
California.
As you are aware, the devastating impacts of diminished water
deliveries to the CVP as a result of three years of below average
precipitation have been made even greater by the various regulatory
restrictions, including the requirements established by the recent
federal biological opinions for endangered fish under the ESA. Your
legislation will provide immediate, much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP.
NCWA was formed in 1992 to present a unified voice working to
resolve California's water issues and protect the water rights and
supplies of the diverse Northern California region, now and into the
future. NCWA represents 54 agricultural water districts and agencies,
private water companies, and individual water rights holders with
rights and entitlements to the surface waters and groundwater resources
of the Sacramento Valley. Many of our members can and will actively
participate in this water transfer program. The language in your
legislation directing the Bureau of Reclamation to work with other
federal agencies to implement the necessary long-term environmental
processes addressing impacts of a water transfer program on the ESA-
listed Giant Garter Snake will be imperative to its usefulness and
success.
We look forward to working with you and your staff in the coming
months in this important legislative effort, and appreciate your
leadership in advancing this legislation and addressing California
water issues so important to our collective future.
Sincerely,
Donn Zea,
President and CEO.
______
Northern California Water Association,
Sacramento, CA, October 2, 2009.
Hon. Barbara Boxer,
U.S. Senate, Washington, DC.
Re: Support for Water Transfer Legislation
Dear Senator Boxer: On behalf of the Northern California Water
Association (NCWA), we thank you for introducing legislation
authorizing and establishing a permanent long-term program to promote
and manage water transfers in the Central Valley of California. We
support your efforts and this legislation as a means of providing
greater flexibility in the management of Central Valley Project (CVP)
and other water supplies to help meet unmet needs critical to the
future of the State of California.
As you are aware, the devastating impacts of diminished water
deliveries to the CVP as a result of three years of below average
precipitation have been made even greater by the various regulatory
restrictions, including the requirements established by the recent
federal biological opinions for endangered fish under the ESA. Your
legislation will provide immediate, much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP.
NCWA was formed in 1992 to present a unified voice working to
resolve California's water issues and protect the water rights and
supplies of the diverse Northern California region, now and into the
future. NCWA represents 54 agricultural water districts and agencies,
private water companies, and individual water rights holders with
rights and entitlements to the surface waters and groundwater resources
of the Sacramento Valley. Many of our members can and will actively
participate in this water transfer program. The language in your
legislation directing the Bureau of Reclamation to work with other
federal agencies to implement the necessary long-term environmental
processes addressing impacts of a water transfer program on the ESA-
listed Giant Garter Snake will be imperative to its usefulness and
success.
We look forward to working with you and your staff in the coming
months in this important legislative effort, and appreciate your
leadership in advancing this legislation and addressing California
water issues so important to our collective future.
Sincerely,
Donn Zea,
President and CEO.
______
Pacific Coast Federation of Fishermen's Associations
San Francisco, CA, November 3, 2009.
Hon. Dianne Feinstein,
U.S. States Senate, 331 Hart Senate Office Building, Washington, DC.
Hon. Barbara Boxer,
U.S. Senate, 112 Hart Senate Office Building, Washington, DC.
RE: PCFFA concerns with S. 1759 re Central Valley Project water
transfer facilitation; suggested amendment
Dear Senators Feinstein and Boxer: The purpose of this letter is to
bring to your attention the inadvertent harm that your bill S. 1759, as
introduced, can bring to the fish and wildlife resources of the San
Francisco Bay-Delta estuary and to offer an amendment that we at the
Pacific Coast Federation of Fishermen's Associations believe will
mitigate such potential harm.
We apologize for the lateness of communicating our S. 1759 concerns
to you, but the ongoing wrangling in Sacramento over the future of the
Bay-Delta--the ``Delta water package''--has been all-consuming for
weeks now.
As introduced, S. 1759 strikes at the heart of the principal
purpose of the Central Valley Project Improvement Act (CVPIA), PL 102-
575, co-authored by then-Senator Bill Bradley and Congressman George
Miller and signed into law 17 years ago last week by President George
H. W. Bush.
The principal purpose of the CVPIA was to repair the damage dealt
to fish and wildlife resources by (then) 57 years of federal Central
Valley Project (CVP) development and operation in the Central Valley
and on the Trinity River. From a fisheries perspective the two most
important provisions of the CVPIA are (1) a commitment to double the
Central Valley salmon resource over 1960s-80s population numbers; and
(2) the provision of 800,000 acre-feet of water from the CVP's yield
with which to protect and restore Project-impacted fish and wildlife
resources, particularly those of the San Francisco Bay-Delta estuary.
We know that the CVPIA has yet to accomplish its salmon-doubling
purpose. Central Valley salmon are, as you know, in dire straits.
The Bureau of Reclamation has defied Congress. It has been gaming
the CVPIA's environmental water
Last year a panel of independent scientists conducted an Office of
Management & Budget-prescribed evaluation of the CVPIA's Anadromous
Fisheries Restoration Program, that which purports to implement the
Act's salmon-doubling provisions. That panel's report\1\ sends a clear
message why S. 1759, as introduced, threatens the health of the Bay-
Delta estuary and the implementation of the CVPIA's salmon-doubling
purpose.
---------------------------------------------------------------------------
\1\ Listen to the River : An Independent Review of the CVPIA
Fisheries Program'', available at http://
www.cvpiaindependentreview.com/FisheriesReport12_12_08.pdf
---------------------------------------------------------------------------
Section 3406(b)(2) of the CVPIA explicitly directs the Secretary of
the Interior to
dedicate and manage annually 800,000 acre-feet of Central
Valley Project yield for the primary purpose of implementing
the fish, wildlife, and habitat restoration purposes and
measures authorized by this title; to assist the State of
California in its efforts to protect the waters of the San
Francisco Bay/Sacramento-San Joaquin Delta Estuary; and to help
meet such obligations as may be legally imposed upon the
Central Valley Project under state or federal law following the
date of enactment of this title, including but not limited to
additional obligations under the federal Endangered Species
Act.
The independent science panel literally struggled to get the Bureau
of Reclamation to explain, in any straightforward manner, how it was
managing that 800,000 acre-feet of water that Congress directed it to
use for salmon-doubling and for meeting the Secretary's ESA obligations
in the Bay-Delta estuary. Rather than attempt to paraphrase what the
scientists learned--and how ``flabbergasted'' they were by what they
finally learned, we provide the text of their report here\2\:
---------------------------------------------------------------------------
\2\ Ibid. at the bottom of page 41, top of page 42
When viewed in combination with the broad directive in
Section 3406(b)(1)(B) to ``modify Central Valley Project
operations to provide flows of suitable quality, quantity, and
timing to protect all life stages of anadromous fish,'' for
which the 800 kaf is one explicit tool, the panel expected to
find that implementation of 3406(b)(2) had occurred in this
way: The agencies identify 800 kaf of dedicated storage in the
system--essentially, a water volume budget--and then consistent
with an identified system-wide flow regime to improve
conditions for anadromous fish, Reclamation would release this
stored water in requested amounts at the call of the fish
managers and then protect that amount of altered flow through
---------------------------------------------------------------------------
the rivers, through the Delta, and into the bay.
We were flabbergasted to learn this is not how the agencies
implement this provision. The agencies have not identified a
system-wide flow regime and set of system flow objectives.
Worse, Reclamation does not dedicate and manage 800 kaf of
water from headwaters storage through the Delta [our emphasis].
Instead, Reclamation releases approximately 400 kaf from CVP
storage each year, aimed at supporting the needs of particular
life stages at particular locations. These augmented amounts
are then diverted out of the system at a later point. The 800
kaf accounting then includes approximately 400 kaf realized in
pump restrictions in the Delta. This approach seems
fundamentally at odds with the intent and language of the
legislation. It is symptomatic of a program focused on local
upstream watershed factors and not on the Delta and especially
not on the problem at the system scale.
In short, Reclamation has defied Congress' directive to apply
800,000 acre-feet of water to salmon doubling and to meeting the
Secretary's ESA and Clean Water Act obligations in the San Francisco
Bay-Delta estuary.
S. 1759 as introduced will legitimate Reclamation's gaming of the
CVPIA environmental water
S. 1759 as introduced would explicitly waive the application of
CVPIA section 3405(a)(1), subparagraphs (A) and (I) in order to further
unfetter the marketing of CVP water.
CVPIA section 3405(a)(1), subparagraph (A) reads `` No transfer or
combination of transfers authorized by this subsection shall exceed, in
any year, the average annual quantity of water under contract actually
delivered to the contracting district or agency during the last three
years of normal water delivery prior to the date of enactment of this
title.''
Subparagraph (I) reads ``The water subject to any transfer
undertaken pursuant to this subsection shall be limited to water that
would have been consumptively used or irretrievably lost to beneficial
use during the year or years of the transfer.''
The purpose of these subparagraphs was to assure that the water
being freed up for sale under the then-new CVPIA policy was real water
that had been used on-farm for three years prior to enactment of the
CVPIA, that it was not water that Congress intended be used to meet the
Secretary's fish and wildlife protection and restoration obligations in
the San Francisco Bay-Delta estuary, or for that matter, in the Trinity
River restoration program or elsewhere.
S. 1759, as introduced, will bring CVP contractors explicitly in on
the gaming of the CVPIA environmental water by specifically waiving the
environmental water safeguards Congress provided in the CVPIA at
section 3405(a)(1), subparagraphs (A) and (I).
PCFFA's proposed amendment to S. 1759, as introduced, will prevent
gaming of the CVPIA environmental water
amendment
At subsection (b) ``CONDITION'' of Section 2, following ``A
transfer under subsection (a) shall be subject to the condition that
the transfer not interfere with--'', insert
(I) Implementation of Section 3406(1)(2) of the Central
Valley Project Improvement Act (Title 34, Public Law 102-575) ,
particularly with regard to the Secretaiy's obligations under
the Endangered Species Act as spelled out in that Section:
(and renumber the other sections of the subparagraphs accordingly).
Two additional concerns that have been raised by PCFFA members in
reviewing S. 1759 are:
1) The need to mandate a flow study (scientific proceedings
by the State Water Resources Control Board were abruptly halted
by the State administration, first in 1988 and then again in
1993) to determine the amount of freshwater inflow to the Delta
and Bay to maintain the estuarine fimetion of the Bay-Delta
ecosystem. Without this, transfers could be occurring of water
that may be needed for the protection and recovery of the most
important estuary on the West Coast of the Americas; and
2) The need to prohibit growers from transferring
agricultural water for non-agricultural uses (e.g., land
development in the Mojave Desert) when shortages of
agricultural water exist.or transfers to growers who have sold
their water for non-agricultural uses. We are sympathetic to
the need for water for legitimate food production operations,
but we cannot see placing the environment or fisheries--our
livelihoods and communities--at any further risk to facilitate
profiteering from water sales or accommodating new development,
such as golf courses in the desert.
Again, we apologize for the delay in communicating our concerns It
has been a hectic time for those of us struggling to secure some water
for salmon and other public trust resources. We assume that neither of
you understood clearly the connection between your bill, as introduced,
and the CV PIA environmental water, that which took us, literally,
generations to secure for the San Francisco Bay-Delta estuary and
Central Valley river environments.
Thank you for your consideration of our concerns and the amendment
to your bill that we offer here.
Sincerely,
W.F. ``Zeke'' Grader, Jr.
Executive Director.
______
Pacific Coast Federation of Fishermen's Associations,
San Francisco, CA, November 3, 2009.
Hon. Jeff Bingaman,
Chairman, Committee on Energy & Natural Resources, 304 Dirksen
Building, U.S. Senate, Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Committee on Energy & Natural Resources, 304 Dirksen
Building, U.S. Senate, Washington, DC.
Hon. Nick J. Rahall II,
Chairman, Committee on Energy & Natural Resources, 1522 Longworth
Building, U.S. House of Representatives, Washington, DC.
Hon. Doc Hastings,
Ranking Member, Committee on Natural Resources, 1522 Longworth
Building, U.S. House of Representatives, Washington, DC.
RE: S. 1759 and H.R 3750, 111th Cong., 1st Sess.--Central Valley
Project water transfer facilitation
Dear Chairmen and Ranking Members: The Pacific Coast Federation of
Fishermen's Associations represents working men and women in the West
Coast commercial fishing fleet. Water policy within California and the
Pacific Northwest affects the health and abundance of many of our
region's economically important fish species, including salmon, and
some estuarine-dependent species such as Dungeness crab. The water
transfer language within S.1759 and H.R. 3750, as introduced, could
have an inadvertent harmful affect on Central Valley salmon stocks and
other fish native to the San Francisco Bay/Sacramento-San Joaquin Delta
estuary.
As introduced, S. 1759 and H.R 3750 threaten to undo legislation
intended to protect and restore fish and wildlife resources of the San
Francisco Bay-Delta estuary. These fish and wildlife protection and
restoration obligation of the Secretary of the Interior are found in PL
102-575, the Central Valley Project Improvement Act signed into law 17
years ago last week by President George H. W. Bush.
We have brought our concerns to the attention of the authors and we
would respectfully request the Committees' help in assisting the
authors to incorporate the amendment that we provide below--to make
absolutely clear that the proposed legislation shall not be used to
interfere with the CVPIA's principal purpose, the repair of damage done
to fish and wildlife resources over the Central Valley Project's (CVP)
57 years of development and operation prior to 1992.
We will set out our proposed amendment together with an explanation
of the need for the amendment. We request that this letter be included
in any record of hearings on these bills.
1. Amendment
At subsection (b) ``CONDITION'' of Section 2, following ``A
transfer under subsection (a) shall be subject to the condition
that the transfer not interfere with--``, insert
(1) Implementation of Section 3406(b)(2) of the Central
Valley Project Improvement Act (Title 34, Public Law 102-575) ,
particularly with regard to the Secretary's obligations under
the Endangered Species Act as spelled out in that Section;
(and renumber the other sections of the subsection accordingly).
2. Explanation of the need for the amendment
As we note above, the principal purpose of Public Law 102-
575, the Central Valley Project Improvement Act, was repair of
the damage done to fish and wildlife populations over the years
of Central Valley Project development and operation beginning
in the mid-1930s.
In order to gain sufficient support for passage of the CVPIA
the proposed Act's backers worked with California
municipalities and agricultural irrigation interests to
liberalize the use of CVP water, historically confined to
designated places of use, or ``service areas''. The CVPIA
authorized the sale of CVP water outside the Project's
designated service areas.
Section 3406(b)(2) of the CVPIA explicitly directs the Secretary of
the Interior to
dedicate and manage annually 800,000 acre-feet of Central
Valley Project yield for the primary purpose of implementing
the fish, wildlife, and habitat restoration purposes and
measures authorized by this title; to assist the State of
California in its efforts to protect the waters of the San
Francisco Bay/Sacramento-San Joaquin Delta Estuary; and to help
meet such obligations as may be legally imposed upon the
Central Valley Project under state or federal law following the
date of enactment of this title, including but not limited to
additional obligations under the federal Endangered Species
Act.
Given the uncertain nature of the CVP's yield (in the run-up to
California's 1986-93 drought, Interior was preparing to sell nearly 2
million acre-feet of water it claimed remained uncommitted within the
CVP's yield--water that has not been heard from since) the CVPIA
imposed a ``reality check'' on those who would market their CVP water
into the new urban market--subparagraphs (A) and (I) of CVPIA section
3405(a)(1).
Subparagraph (A) reads ``No transfer or combination of transfers
authorized by this subsection shall exceed, in any year, the average
annual quantity of water under contract actually delivered to the
contracting district or agency during the last three years of normal
water delivery prior to the date of enactment of this title.''
Subparagraph (I) reads ``The water subject to any transfer
undertaken pursuant to this subsection shall be limited to water that
would have been consumptively used of irretrievably lost to beneficials
use during the year of years of the transfer.''
Again, the purpose of these subparagraphs was to assure that the
water being freed up for sale under the new CVPIA policy was real water
that had been used on-farm for three years prior to enactment of the
CVPIA and that it was not the water that Congress intended be used to
meet the Secretary's fish and wildlife protection and restoration
obligations in the San Francisco Bay-Delta estuary, or for that matter,
in the Trinity River restoration program or elsewhere.
It is these CVPIA safeguards against the marketing of water needed
to repair the damage to fish and wildlife resources caused by the CVP's
decades of development and operation that S. 1759 and H.R 3750 would
sweep away.
If the proponents of the present bill do not intend to deny San
Francisco Bay-Delta fish and wildlife resources the water dedicated to
them by Congress in the 1992 CVPIA then the amendment we propose should
work to make that fact even clearer to the Secretary.
Thank you for your consideration of our concerns and our proposed
amendment.
Sincerely,
W.F. ``Zeke'' Grader, Jr.,
Executive Director.
______
Panoche Water District,
Firebaugh, CA, October 5, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
Hon. Barbara Boxer,
U.S. Senate, 112 Hart Senate Office Building, Washington, DC.
Hon. Dennis Cardoza,
U.S. House of Representatives, 1224 Longworth Building, Washington, DC.
Hon. Jim Costa,
U.S. House of Representatives, 1314 Longworth, House Office Building,
Washington, DC.
RE: Water Transfer Facilitation Act of 2009
Dear Senator Feinstein, Senator Boxer, Mr. Cardoza, and Mr. Costa:
I am writing on behalf of the Panache Water District express our
enthusiastic support for your bill, the Water Transfer Facilitation Act
of 2009, authorizing certain transfers of water in the Central Valley
Project and other purposes. Water transfers are essential to sound
water management and often are time sensitive. Your legislation will
bring important reform to existing transfer authorization thus
increasing the efficacy of this essential water management tool.
As you are keenly aware, coping with California's water crisis and,
in particular, the chronic water supply shortages impacting the Central
Valley Project demands utilization of various best management practices
including water transfers. Moreover, the need to transfer water is
often urgent and in response to climactic conditions that are
frequently sporadic and ephemeral. Regrettably, bureaucratic process
can unnecessarily thwart successful execution of a transfer and the
best management of this all too precious resource. The clarity your
legislation brings to existing authorizations will only improve the
capability of water managers throughout the State to effectively
respond to the ongoing crisis and put our scant water resources to use
even more efficiently.
The Westside of the great San Joaquin Valley is inarguably the most
transfer dependent region of the State. Your efforts to address this
important matter as well as your vast knowledge of and longstanding
commitment to water resource issues vital to the State are most deeply
appreciated. If there is anything I can do to be of further service to
you in this cause, please do not hesitate to call.
Very truly yours,
Dennis Falaschi,
General Manager.
______
Statement of Placer County Water Agency Transfer Legislation Proposal
background
PCWA has extensive water transfer experience. PCWA has transferred
water to willing buyers in nearly every dry year over the past 20
years. Most recently, in 2009 we transferred 20,000 af to San Diego
County Water Authority. In 2008 we transferred 20,000 af to Westlands
Water District. Previously we have transferred water to the State Water
Bank, the Environmental Water Account and the City of San Francisco.
These transfers are consistent with the PCWA's commitment to the
Sacramento Area Water Forum to provide additional dry year flows to
help sustain fisheries in the lower American River.
time consuming process
The administrative and regulatory process necessary to gain
permission to complete a water transfer has become so cumbersome that
it almost cannot be completed in a single year. For many potential
transfer partners, these processes have become a huge barrier and may
impede drought response and impact future opportunities for transfer
transactions. One of the more time consuming administrative elements is
the negotiation and execution of Reclamation's Warren Act Contract\1\.
The process involves many steps and the execution of the contract
becomes the ``federal action'' triggering NEPA compliance, all of which
can take several months to complete.
---------------------------------------------------------------------------
\1\ The Warren Act (WA)--The WA (43 U.S.C. Sec. 523) of 1911
provides authorization to the Secretary of the Interior to enter into
WA contracts with water purveyors to carry non-CVP water (i.e., water
not developed as part of the CVP) through Federal facilities. Under
Section 305 of the States Emergency Drought Relief Act of 1991 (43
U.S.C. Sec. 2211 et seq.). ``Excess Storage and Carrying Capacity,''
the Secretary is authorized to execute contracts with municipalities,
public water districts and agencies, other Federal agencies, State
agencies, and private entities pursuant to the WA. These contracts
provide for the impounding, storage, and conveyance of non-CVP water
for domestic, municipal, fish and wildlife, industrial, and other
beneficial uses using any CVP facilities identified in the law,
including Shasta Reservoir, Folsom Reservoir, Jones Pumping Plant, the
Delta-Mendota Canal, San Luis Reservoir, O'Neill Forebay, the San Luis
Canal.
The WA (43 U.S.C. Sec. 523) of 1911 provides authorization to the
Secretary of the Interior to enter into WA contracts with water
purveyors to carry non-CVP water (i.e., water not developed as part of
the CVP) through Federal facilities. Under Section 305 of the States
Emergency Drought Relief Act of 1991 (43 U.S.C. Sec. 2211 et seq.),
``Excess Storage and Carrying Capacity,'' the Secretary is authorized
to execute contracts with municipalities, public water districts and
agencies, other Federal agencies, State agencies, and private entities
pursuant to the WA. These contracts provide for the impounding,
storage, and conveyance of non-CVP water for domestic, municipal, fish
and wildlife, industrial, and other beneficial uses using any CVP
facilities identified in the law, including Shasta Reservoir, Folsom
Reservoir, Jones Pumping Plant, the Delta-Mendota Canal, San Luis
Reservoir, O'Neill Forebay, the San Luis Canal.
pcwa case study
PCWA owns and operates the Middle Fork American River Hydroelectric
Project (MFP), which is above Folsom Reservoir. Any water that PCWA
does not ``use or otherwise dispose of'' becomes CVP water once it
reaches Folsom Reservoir.
In dry years there are generally willing buyers and excess delta
pumping capacity (currently in a very limited time ``window'')
available to move the water south.
The operation of the MFP necessary to release additional water for
transfer into Folsom Reservoir is permitted within PCWA's existing FERC
license conditions and water rights. The storage and conveyance of PCWA
transfer water, by Reclamation, to the buyer (if a CVP contractor) or
to the State Water Project facilities, is within Reclamation's normal
operating limits and consistent with all of the water right conditions
and biological opinions governing the operation of the CVP.
In all of its previous transfers neither PCWA nor Reclamation have
identified any adverse environmental impacts associated with these
transfers. On the contrary, the most recent Environmental Assessment
stated the impacts of releasing more water from MFP would likely have a
positive impact to the fish habitat downstream.
The following Steps were necessary in order to complete a one-year
temporary transfer of 20,000 acre-feet of PCWA water to a State Water
Project contractor in 2009.
1) State Water Resources Control Board (SWRCB) Permit--
Willing Seller prepares a comprehensive project description and
transfer application, including an assessment of potential
impacts.
Submit application to SWRCB for permits to change the
place of use of this water to a new area. After review
of the application by SWRCB staff and completion of any
necessary corrections or additions, publish a
comprehensive notice for 30 day public review.
Water transfers are exempted under CEQA due to the
temporary nature of the transfer, which eliminates the
need for a separate public notice and protest period on
the subject of the impacts. However, the SWRCB must
make an independent determination that the water
transfer will not cause unnecessary environmental
impacts.
After public notice and review closes, SWRCB seeks
any resolution for any public comment, or input.
Willing seller/buyers respond appropriately as
necessary. SWRCB issues an order granting the permit.
2) Refill Agreement--In cases involving reservoir re-
operations upstream of Central Valley Project (CVP) storage
facilities, steps are taken by both Reclamation and DWR to
ensure no other users are harmed by the changes in reservoir
operation. A refill criteria agreement, setting forth
limitations on future year upstream reservoir operations, is
required between the parties to ensure the following year water
supply is not impacted by the refilling of vacated storage
space if the following year is also dry. Reclamation has
recently determined the execution of this agreement triggered a
federal action under NEPA and required an Environmental
Assessment (EA) and a Finding of No Significant Impact
(FONSI)\2\.
---------------------------------------------------------------------------
\2\ This is stated in Chapter 1 of the Environmental Assessment
document and the Finding of No Significant Impact -09-05 July 2009.
---------------------------------------------------------------------------
3) Warren Act Contract--If non-project water is to be moved
through Central Valley Project facilities, a temporary Warren
Act Contract between the willing seller/buyer and Reclamation
is required. It can take several weeks to negotiate this
agreement.
Executing the temporary wheeling agreement is a
discretionary federal action, which triggers the need
for review under NEPA. NEPA review can only begin after
the wheeling agreement negotiations are complete so
that the ``federal action'' can be clearly defined.
The preparation of a Warren Act project description
and an assessment of the potential impact of all
required changes in seller, Reclamation and buyer
operations necessary to complete the transfer can be
very time consuming. Then a 30 day public review of the
Environmental Assessment is required. Following the
public review if comments are received, they are
addressed and Reclamation may then publish a record of
decision and execute the agreement(s).
4) SWP Conveyance Agreement--When the buyer is a SWP
contractor a delivery and conveyance agreement, which sets
forth SWP conditions for the transfer conveyance and delivery
must be reached between the seller and buyer and DWR. Since
transfers are exempt from CEQA, no additional impact analysis
is required as a condition of the execution of this agreement.
5) Coordinated Operations--DWR and Reclamation consult under
their Coordinated Operating Agreement to ensure that the
storage and conveyance of transfer water does not have
unintended water supply consequences for SWP and CVP
contractors. These are peer to peer discussions between SWP and
CVP operations staff and any adjustments in operation are not
subject to CEQA or NEPA.
proposal
If Reclamation were given the authority to facilitate and expedite
temporary transfers, including non-CVP water transfers, without the
need to execute a temporary Warren Act Contract, one of the biggest
impediments to water transfers throughout the state would be removed.
..
To do this Reclamation would need authorization to acquire water
from a willing seller, to treat that water as CVP water and then
deliver that water to the party that provided the funding for the
acquisition. We propose to give Reclamation those authorizations.
We further propose to make these action(s) categorically excluded
under NEPA so long as all parties are acting within their separate
existing authorities and within system capacities.
Together, the elimination of the need for a Warren Act Contract and
extensive NEPA review would cut the processing time to facilitate these
transfers by many months.
______
Revive the San Joaquin,
Fresno, CA, December 14, 2009.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, 304 Dirkscn Senate
Building, Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Committee on Energy and Natural Resources, 304 Dirksen
Senate Building, Washington, DC.
Re: Opposition to S 1759 [Senators' Feinstein and Boxer], Water
Transfer Facilitation Act of 2009
Dear Chairman Bingaman, Ranking Member Murkowski and Members of the
Water and Power Subcommittee: Revive the San Joaquin is a San Joaquin
Valley based nonprofit working for the protection of the San Joaquin
River system and a successful restoration of its valuable resources.
For nearly 60 years the State's second largest river system has been
dried up, and with it so has the economy of the valley communities who
now rely heavily on groundwater and surplus Delta water imports. The
unreliability of San Joaquin Valley water supplies has led our
communities to experience extreme hardships and resulted in a severe
over-drafting of groundwater supplies as well as creating entire local
economies based on empty promises for water exports from the Delta.
Please listen to ALL stakeholder interests in the San Joaquin
Valley when reviewing this water legislation. Far too often large
corporations and single-interest stakeholders dominate the political
discussions and misrepresent the needs of San Joaquin Valley
communities and stakeholders. As Westside farming interests
increasingly weigh decisions to farm or sell water (example Dudley
Ridge Water District fallows land to sell 14,000 af/yr at $5,500 to
Mojave Water Agency for new desert developments), it is our local
communities and jobs that suffer. Inequitable access by large
agribusiness corporations to water storage infrastructure further
enables sales of water destined for Valley farms to be privatized and
sold for purposes other than irrigation to the Valley's Westside.
The proposed water transfer legislation does little more than add
complexity and gut existing environmental protections for a water
supply that must be made more sustainable if the Valley's economy is to
thrive in the future. Water quality in the Delta must be improved if we
are to convey surplus water supplies to San Joaquin Valley farmers.
Conservation efforts and new governance in the Delta are key elements
of the long-term recovery efforts that will eventually lead to a
sustainable water supply from the Delta.
San Joaquin River Restoration Adds Storage and Conveyance Opportunities
The San Joaquin River Restoration Program is probably the best
short-term solution to South Delta water quality issues. Releases of a
significant water supply from Friant Darn may improve water supply and
water quality impacts by 2012 creating water supply benefits to both
Northern San Joaquin Valley water districts and also Westside water
districts through improved water quality and reduced salinity at the
export pumps. New storage capacity created from the Friant releases may
also provide new water supplies and reduce flood frequencies, changing
the nature of fishery management in the South Delta. Restoration
creates new conveyance opportunities between the Friant division and
other State and Federal projects that have yet to be explored. New
legislation is not needed to facilitate beneficial transfers.
The State's water crisis is real and our State legislature is
seeking a comprehensive solution including increased oversight of Delta
water quality, a task that can only be accomplished through improved
oversight by the State Water Resources Control Board (SWRCB), and
through a coordinated accounting of Delta-based water rights. Delta
exports have seen drastic increases this decade from the years 2001-
2006 in contrast to the SWRCB 1978 decision D-1485 which identifies the
need to reduce exports and protect Delta water quality (See Exhibit
1).* The lack of oversight of exports from the Delta has created an
unrealistic and unsustainable supply for Valley farmers.
---------------------------------------------------------------------------
* Exhibit has been retained in subcommittee files.
---------------------------------------------------------------------------
New Legislation Must Reinforce State Actions, Not Add Complexity
Our local Congressmen have consistently looked to temporary fixes,
emergency exemptions, and other agency-based ``do not enforce'' orders
to remedy the concerns of NVestside farm interests. This has provided
false hope and unrealistic expectations for water supplies out of the
Delta. Federal legislation should not stand in conflict to existing
State and federal governance of the Delta, but rather should support
on-going efforts to improve water quality in the Delta. Creating a
healthy environment for fish and habitat. will also create a favorable
environment for continued exports. Sucking up the last drip of
freshwater from the South Delta is a formula for immediate extinction
of multiple fish species and a guarantee that continued export capacity
will fail.
Revive the San Joaquin opposes the current 5.1759 legislation as it
is counterproductive to ongoing efforts to improve local water supplies
and improve water quality in the South Delta. Revive the San Joaquin
represents many local residents, farmers, and businesses who believe
coordinated and unified actions by our State and Federal legislature is
the only path to ensure economic and. environmental progress can be
made during this water crisis.
Sincerely,
Chris Acree,
Executive Director.
______
Reclamation District 2035,
Woodland, CA, October 6, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
Re: Support for Water Transfer Legislation
Dear Senator Feinstein: On behalf of Reclamation District 2035,
thank you for introducing legislation authorizing and establishing a
permanent long-term program to promote and manage water transfers in
the Central Valley of California. Reclamation District 2035 (RD 2035)
was formed in 1919 to provide flood control and water delivery for
approximately 22,000 acres in Yolo County, California. While RD2035
does not own water rights, it is responsible for the delivery of CVP
water to its agricultural customers whose crops represent the top three
agricultural commodities in Yolo County.
As you are aware, the devastating impacts of diminished water
deliveries to the CVP as a result of three years of below average
precipitation have been made even greater by the various regulatory
restrictions, including the requirements established by the recent
federal biological opinions for endangered fish under the ESA. Your
legislation will provide immediate, much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP. Further, the language
in your legislation directing the Bureau of Reclamation to work with
other federal agencies to develop the necessary long-term environmental
documentation addressing impacts of a water transfer program on the
ESA-listed Giant Garter Snake is a critical and necessary near-term
next step.
We look forward to working with you and your staff on this
important legislative effort.
Sincerely,
Regina J. Cherovsky,
Chairperson.
______
Reclamation District 2035,
Woodland, CA, October 6, 2009.
Hon. Dennis Cardoza,
U.S. House of Representatives, Washington, DC.
Re: Support for Water Transfer Legislation
Dear Congressman Cardoza: On behalf of Reclamation District 2035,
thank you for introducing legislation authorizing and establishing a
permanent long-term program to promote and manage water transfers in
the Central Valley of California. Reclamation District 2035 (RD 2035)
was formed in 1919 to provide flood control and water delivery for
approximately 22,000 acres in Yolo County, California. While RD2035
does not own water rights, it is responsible for the delivery of CVP
water to its agricultural customers whose crops represent the top three
agricultural commodities in Yolo County.
As you are aware, the devastating impacts of diminished water
deliveries to the CVP as a result of three years of below average
precipitation have been made even greater by the various regulatory
restrictions, including the requirements established by the recent
federal biological opinions for endangered fish under the ESA. Your
legislation will provide immediate, much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP. Further, the language
in your legislation directing the Bureau of Reclamation to work with
other federal agencies to develop the necessary long-term environmental
documentation addressing impacts of a water transfer program on the
ESA-listed Giant Garter Snake is a critical and necessary near-term
next step.
We look forward to working with you and your staff on this
important legislative effort.
Sincerely,
Regina J. Cherovsky,
Chairperson.
______
Reclamation District 2035,
Woodland, CA, October 6, 2009.
Hon. Jim Costa,
U.S. House of Representatives, Washington, DC.
Re: Support for Water Transfer Legislation
Dear Congressman Costa: On behalf of Reclamation District 2035,
thank you for introducing legislation authorizing and establishing a
permanent long-term program to promote and manage water transfers in
the Central Valley of California. Reclamation District 2035 (RD 2035)
was formed in 1919 to provide flood control and water delivery for
approximately 22,000 acres in Yolo County, California. While RD2035
does not own water rights, it is responsible for the delivery of CVP
water to its agricultural customers whose crops represent the top three
agricultural commodities in Yolo County.
As you are aware, the devastating impacts of diminished water
deliveries to the CVP as a result of three years of below average
precipitation have been made even greater by the various regulatory
restrictions, including the requirements established by the recent
federal biological opinions for endangered fish under the ESA. Your
legislation will provide immediate, much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP. Further, the language
in your legislation directing the Bureau of Reclamation to work with
other federal agencies to develop the necessary long-term environmental
documentation addressing impacts of a water transfer program on the
ESA-listed Giant Garter Snake is a critical and necessary near-term
next step.
We look forward to working with you and your staff on this
important legislative effort.
Sincerely,
Regina J. Cherovsky,
Chairperson.
______
Reclamation District 2035,
Woodland, CA, October 6, 2009.
Hon. Barbara Boxer,
U.S. Senate, Washington, DC.
Re: Support for Water Transfer Legislation
Dear Senator Boxer: On behalf of Reclamation District 2035, thank
you for introducing legislation authorizing and establishing a
permanent long-term program to promote and manage water transfers in
the Central Valley of California. Reclamation District 2035 (RD 2035)
was formed in 1919 to provide flood control and water delivery for
approximately 22,000 acres in Yolo County, California. While RD2035
does not own water rights, it is responsible for the delivery of CVP
water to its agricultural customers whose crops represent the top three
agricultural commodities in Yolo County.
As you are aware, the devastating impacts of diminished water
deliveries to the CVP as a result of three years of below average
precipitation have been made even greater by the various regulatory
restrictions, including the requirements established by the recent
federal biological opinions for endangered fish under the ESA. Your
legislation will provide immediate, much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP. Further, the language
in your legislation directing the Bureau of Reclamation to work with
other federal agencies to develop the necessary long-term environmental
documentation addressing impacts of a water transfer program on the
ESA-listed Giant Garter Snake is a critical and necessary near-term
next step.
We look forward to working with you and your staff on this
important legislative effort.
Sincerely,
Regina J. Cherovsky,
Chairperson.
______
Friends of the River,
Sierra Club California,
December 14, 2009.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, 304 Dirksen Senate
Building, Washington, DC.
Hon. Lisa Murkowski,
Ranking Member, Committee on Energy and Natural Resources, 304 Dirksen
Senate Building, Washington, DC.
Dear Chairman Bingaman, Ranking Member Murkowski and Members of the
Water and Power Subcommittee: The undersigned oppose S 1750. As
representatives of California fishing, river and environmental
organizations we have worked for decades to achieve, in the words of
the 1992 Central Valley Project Improvement Act [CVPIA] Public Law 102-
575 Section 3401(f), ``a reasonable balance among competing demands for
use of Central Valley Project (CVP) water, including the requirements
of fish and wildlife, agricultural, municipal and industrial and power
contractors.''
The stated intention of Senator's Boxer and Feinstein S 1759 is
purportedly to smooth the transfer sale of water among irrigation
districts south of the Delta by directing Interior Department officials
to complete under ``the most expedited basis practicable'' all
necessary environmental reviews and by lifting several safeguards that
assure fish and wildlife protections that the 1992 Central Valley
Project Improvement Act [CVPIA], PL 102-575 imposed on the water that a
CVP contractor can transfer. The unfortunate effect will be a free pass
for the Bureau of Reclamation and CVP contractors to resell taxpayer
funded water and by-pass present laws designed to protect the
environment and repair some of the environmental damage caused by the
project.
According to BOR testimony, over 600,000 acre feet of water was
approved under existing law this year for sale and transfer of water by
CVP irrigators. For 57 years, the taxpayer-subsidized CVP has damaged
fish, wildlife, natural river resources and damaged the economic
livelihood of Indians, farmers, commercial and sport fishing in the San
Francisco Bay-Delta and in rivers throughout California. The 1992 CVPIA
protections still have not been implemented nor followed by the Bureau
of Reclamation and now this legislation will undo even these modest
provisions by allowing these taxpayer subsidized agricultural interests
to profit from this public funded largesse at the further expense of
our fishery resources.
We oppose the passage of S 1759. It strikes at the heart of the
principal purpose of the CVPIA, co-authored by Senator Bill Bradley and
Congressman George Miller, and signed into law 17 years ago by
President George H. W. Bush. There is no evidence to support the
purported problem that the legislation attempts to solve--unless the
intent is to by-pass environmental protections that are part of the
CVPIA.
We also are concerned about the unintended harm this legislation,
if passed, can bring to the fish and wildlife resources of the San
Francisco Bay-Delta and its estuary. We urge the bill be remanded to
the Water and Power Subcommittee so the full effects and potential
unintended consequences of the legislation can be analyzed. We are
concerned that this legislation, if it should pass, will be contrary to
its intended purpose, for three main reasons outlined below:
There is little or no evidence that the bill is needed, unless the
purpose of the legislation is to get around existing safeguards
If, as is asserted, this legislation is to benefit agriculture by
reallocation of water resources through the sale of water only south of
the Delta, then the authors should not object to inserting language
that would require any such transfer sale be entirely and exclusively
water that originates south of the Delta in the San Joaquin Valley. The
authors have refused this simple change. Agricultural interests
indicate there are insufficient water resources south of the Delta to
``solve'' their need for water. And yet these same taxpayer-subsidized
corporate agricultural interests have yet to provide evidence to
support how removing the safeguards enacted under the CVPIA will solve
their water supply problems by allowing them to sell water to one
another--unless they intend to further deplete water that Congress
intended be used to remedy over 57 years of damage to the fisheries of
the state.
Under the CVPIA legislation only real water that had been used on-
farm for three years prior to enactment of the CVPIA is allowed to be
sold for a profit outside of the congressionally designated service
areas. [Section 3405(a) (1), subparagraph (A)] The purpose of these
safeguards was to assure water being freed up for sale was ``real
water'', water beyond that which Congress intended to be used to meet
the Secretary of Interior's legal obligations to fish and wildlife
protection and restoration of the San Francisco Bay-Delta estuary or to
the Trinity River, its communities and the Secretary's Tribal trust
responsibilities.
Removing the Congressionally adopted safeguards will adversely impact
the San Francisco Bay, the Sacramento-San Joaquin Delta
Estuary, Tribal trust responsibilities and the economic health
of the State of California
Congress allowed Central Valley irrigators to profit from taxpayer
funded water supplies by selling their water provided that they
followed federal obligations as outlined above. Also they could not use
water that was intended to meet the Secretary's obligation under
federal law to remedy and restore damage to fish and wildlife. Water
diversions under the federal Central Valley Project have decimated
salmon, steelhead and trout populations causing huge economic
dislocations and putting many thousands of people out of work.
One of the CVPIA's major intended purposes was to rebuild the
salmon population devastated by the water diversions by the Central
Valley project contractors. To do this Congress required the Bureau of
Reclamation to dedicated and manage 800,000 acre feet of water from the
project annually to fish and wildlife populations damaged by operations
of the Central Valley Project. Further Congress set a numeric goal for
the Secretary of Interior to meet--a doubling of the salmon
populations. Neither of these objectives has been met. Removing the
CVPIA safeguards to allow these contractors to profit from the sale of
this taxpayer subsidized water allows these federal contractors to
undercut Congress's intent and mandates.
The Bureau of Reclamation has consistently failed to carry out
Congressional directives
Congressional action until now has been clear. The Secretary of
Interior and the Bureau of Reclamation are not exempt from the Clean
Water Act, the Endangered Species Act, the Central Valley Project
Improvement Act and various other provisions of federal and state law.
And yet the history of the Central Valley Project is replete with
examples of how the project is operated in violation of the law and the
intent of Congress. Court case after court case has found the Bureau of
Reclamation in violation of the Clean Water Act, Endangered Species
Act, and National Environmental Policy Act and in a landmark Supreme
Court case, California water rights law. Only expensive, time-consuming
legal effort has resulted in compliance and at times only additional
court action has brought compliance with court orders.
And now under S 1759, the Bureau of Reclamation and these
subsidized irrigators are asking Congress to change the law because
they do not want to comply with the existing laws that would safeguard
the environment if they were followed. We urge that this legislation be
remanded to the Water and Power Subcommittee to analyze the impacts of
the legislation on the environment, groundwater aquifers, refuges,
fisheries and water quality and to consider amendments to safeguard
taxpayer funds that have provided this water that will profit
irrigators. Absent this action we urge the full committee not to pass
this legislation.
Sincerely,
Jim Metropulos,
Senior Advocate, Sierra Club California.
Steve Evans,
Conservation Director, Friends of the River.
______
San Joaquin River Water Authority,
San Joaquin Valley, CA, October 5, 2009.
Hon. Dianne Feinstein,
331 Hart Senate Office Building, Washington, DC.
RE: SUPPORT for Transfer Legislation for the Central Valley Project
Dear Senator Feinstein: On behalf of the San Joaquin River Exchange
Contractors Water Authority (Exchange Contractors), we thank you for
introducing transfer legislation for the Central Valley Project (CVP)
and we support your efforts and this legislation as a means of
providing greater flexibility for management of CVP water supplies.
The diminished water deliveries to the CVP as a result of various
regulatory restrictions, including the most recent delta smelt and
salmon Biological Opinions and three years of below average
precipitation statewide, have, as you know, created a desperate
situation in the San Joaquin Valley.
While long-term solutions are being sought, numerous short term
efforts are needed to help bridge the water supply gap and great
flexibility, as provided in your legislation, to move water supplies
within the San Joaquin Valley would be a useful tool.
The Exchange Contractors consist of 4 member agencies serving over
240,000 acres in the San Joaquin Valley in Fresno, Madera, Merced, and
Stanislaus Counties.
We look forward to engaging in this effort and working closely with
you and your staff in advancing this legislation and addressing
California water issues.
Sincerely,
Steve Chedester,
Executive Director.
______
San Luis & Delta-Mendota Water Authority,
Los Banos, CA, October 5, 2009.
Hon. Dianne Feinstein
U.S. Senate, 331 Hart Senate Office Building, Washington DC.
Hon. Barbara Boxer,
U.S. Senate, 112 Hart Senate Office Building, Washington, DC.
Hon. Dennis Cardoza,
U.S. House of Representatives, 1224 Longworth Building, Washington, DC.
Hon. Jim Costa,
U.S. House of Representatives, 1314 Longworth House Office Building,
Washington, DC.
RE: Water Transfer Facilitation Act of 2009
Dear Senator Feinstein, Senator Boxer, Mr. Cardoza, and Mr. Costa:
I am writing on behalf of the Panache Water District express our
enthusiastic support for your bill, the Water Transfer Facilitation Act
of 2009, authorizing certain transfers of water in the Central Valley
Project and other purposes. Water transfers are essential to sound
water management and often are time sensitive. Your legislation will
bring important reform to existing transfer authorization thus
increasing the efficacy of this essential water management tool.
As you are keenly aware, coping with California's water crisis and,
in particular, the chronic water supply shortages impacting the Central
Valley Project demands utilization of various best management practices
including water transfers. Moreover, the need to transfer water is
often urgent and in response to climactic conditions that are
frequently sporadic and ephemeral. Regrettably, bureaucratic process
can unnecessarily thwart successful execution of a transfer and the
best management of this all too precious resource. The clarity your
legislation brings to existing authorizations will only improve the
capability of water managers throughout the State to effectively
respond to the ongoing crisis and put our scant water resources to use
even more efficiently.
The Westside of the great San Joaquin Valley is inarguably the most
transfer dependent region of the State. Your efforts to address this
important matter as well as your vast knowledge of and longstanding
commitment to water resource issues vital to the State are most deeply
appreciated. If there is anything I can do to be of further service to
you in this cause, please do not hesitate to call.
Very truly yours,
Daniel G. Nelson,
Executive Director.
______
San Luis Water District,
Los Banos, CA, October 5, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
Hon. Barbara Boxer,
U.S. Senate, 112 Hart Senate Office Building, Washington, DC.
Hon. Dennis Cardoza,
U.S. House of Representatives, 1224 Longworth Building, Washington, DC.
Hon. Jim Costa,
U.S. House of Representatives, 1314 Longworth House Office Building,
Washington, DC.
RE: Water Transfer Facilitation Act of 2009
Dear Senator Feinstein, Senator Boxer, Mr. Cardoza, and Mr. Costa:
I am writing on behalf of the San Luis Water District and its Board of
Directors. We strongly support the Water Transfer Facilitation Act of
2009. Given the regulatory impacts of recent Biologic Opinions, the
survival of our commercial, residential and agricultural water users is
increasingly dependent on supplemental water transfers. Your
legislation will bring important. reform to existing transfer
authorization and this essential water management tool.
Coping with chronic water supply shortages impacting the Central
Valley Project requires implementation of best management practices
including water transfers. The need to transfer water is often urgent.
Regrettably, bureaucratic process can unnecessarily thwart successful
execution of a transfer. Your legislation will improve the capability
of water managers throughout the State to effectively and efficiently
respond to the ongoing crisis.
Your continuing efforts to address these important matters are
critical and deeply appreciated.
Sincerely,
Martin R. McIntyre,
General Manager.
______
South Delta Water Agency,
Stockton, CA, October 14, 2009.
Hon. Dianne Feinstein,
One Post Street, Suite 2450, San Francisco, CA.
Re: Draft Water Transfer Facilitation Act of 2009
Dear Dianne Feinstein: I am counsel and manager of the South Delta
Water Agency. The diverters in our area are directly affected by
operation of the state and federal projects (SWP and CVP,
respectively), especially their export pumps. Because water transfers
oft times are routed through the state and federal Delta export
facilities, we try to comment on all proposals affecting exports and
the operation of the SWP and CVP in general. I have reviewed an undated
draft of the above referenced bill and would like to comment.
As you know, CVPIA (Public Law 102-575) attempted to do a number of
things, one of which was to ease/allow transfers among CVP users, At
the time, the notion of transfers was believed by many to be a means by
which supply inconsistencies and unanticipated export limitations might
be addressed, at least to some extent. This idea was controversial as
it resulted in Federal project water becoming more of a commodity than
a subsidy to agriculture.
One of the discussions at the time CVPIA was being contemplated
dealt with the impacts that transfers had on the water demand and
consumption in the state. Any new transfer had the very real potential
of increasing demand on the entire system as the buyer became reliant
on the same supply to which the seller was reliant. Although the seller
might be satisfied with the money instead of the water, more likely he/
she would try to make up for the sold water. The net result was either
both buyer and seller becoming dependent on the same supply, or the
seller becoming dependent (or partially dependent) on a new supply
(his/her alternate supply). This would not only increased or finned up
overall demand, it also resulted in a net increase in the consumptive
use without increasing the supply at all.
Two of the provisions of CVPIA which dealt with this demand/supply
issue are at the core of the new bill, and are proposed to be changed.
Section 3405 (a) 1 (A) precluded transfers of more water than the
seller receives each year (or received on average). The specific
purpose of this was to make sure that the seller was not ``mining'' or
turning to alternate supplies of water, but was rather transferring
only the water he/she received from the CVP, Section 3405 (a)(1)(I)
precluded transfers of water which was not previously consumed or
previously lost to beneficial use. This provision attempted to make
sure that the seller sold only water that he would have used in the
absence of the transfer, or water that was previously lost somehow from
the system (e.g., drains to a salt sink). The idea was that he/she sold
X amount of water, and decreased his/her use by X amount of water.
These two provisions were to make sure that transfers did not
result in a net increase in demand or consumption, or otherwise affect
other beneficial users and uses. State law has similar provisions (see
for example Water Code sections 1707(b), 1725, and 1727).
Unfortunately, both the federal CVPIA limitations and the California
Water Code restrictions have been generally ignored in practice.
The proposed changes do not so much further facilitate transfers,
as they undo the well thought-out protections of CVPIA. The bill's
language makes virtually any and all transfers of CVP water legally
consistent with the restrictions in CVPIA even though they may be
directly inconsistent with them. By ignoring the specific restrictions
of CVPIA or pretending they are met, the demand (especially the dry
year demand) for water will increase and the net consumptive use will
undoubtably increase. Although we sympathize with those who are
experiencing shortages in this time of drought, it would seem to be bad
policy to encourage increased demand and increased consumption (above
that which would have occurred in the absence of the transfer). Unless
the system ``learns'' to live within the current supply shortages, or
actually develops a greater supply, things will only get worse under
the proposed changes. Sellers will sell to those without a reliable
supply and then seek alternate supplies to make up for that which they
sold. The necessary result will be an increased demand, a worsening of
the over drafted groundwater basins, greater diversions and use from
other streams, etc., all of which hurts other users and uses and
predetermines a greater crisis during the next drought.
There is another problem I see with the bill.Section 3 therein
directs the Secretary of the Interior to expedite environmental review
of the transfers. This language appears to he an attempt to create
federal law to facilitate the Bay Delta Conservation Plan (BDCP)
process and a peripheral canal (PC). This is because the PC is largely
dependent on transfers to make it cost effective.
Let me explain further. Current BDCP modeling indicates that use of
the massive PC is severely limited in many years during many times.
This is because in drier times there is little or no ``excess'' or
``surplus'' water in the system to export. In addition and as we have
seen this year, at some times there is no stored water available for
exports either, [This past February the USSR notified the Exchange
Contractors they would likely receive San Joaquin River water instead
of (or in addition to) Delta-Mendota Canal water. When the Exchange
Contractors cannot get their full contract amount from the Delta-
Mendota Canal, it means there is no stored water available for export,
it all being needed for instrean-i uses, upstream right holders and
fishery requirements.] Hence, the $20 Billion plus PC would be empty in
many years. Since the BDCP does not proposed to increase the available
supply (and in fact will decrease it by replacing agricultural use with
habitat/wetland use) the only method by which the PC would have water
at certain times would be via transfers. This reliance on purchasing
water to meet export needs rather than increasing the supply available
for exports is central to the BDCP process. I note that the use of the
PC for transfers in dry times deprives the Delta of the benefit of the
transfer water going through the Delta channels; an apparent violation
of Water Code section 12205.
With that said, you can see that any new federal law which directs
an expedited environmental process to facilitate transfers would of
course be used to expedite the BDCP process and a PC. Although we are
opposed to any PC as a violation of existing priority rights and an
avoidance of project mitigation and other obligations, I am sure
everyone would agree that the process analyzing massive changes to the
Delta should go through a deliberate and comprehensive process; not an
expedited one. We are after all, facing the extinction of some
fisheries and a collapse of the Delta ecosystem.
Please feel free to contact me if you have any questions.
Very truly yours,
John Herrick,
Counsel & Manager.
______
Tehama-Colusa Canal Authority,
Willows, CA, October 5, 2009.
Hon. Dianne Feinstein,
U.S. Senate, 331 Hart Senate Office Building, Washington, DC.
Re: Support for Central Valley Project Water Transfer Legislation
Dear Senator Feinstein: On behalf of the Tehama Colusa Canal
Authority (TCCA), we thank you for introducing legislation authorizing
and establishing a programmatic program to promote and manage water
transfers in California, including the Sacramento Valley. We support
your efforts and this legislation as a means of providing greater
regulatory certainty for the management of Central Valley Project (CVP)
water supplies for water users.
As you are aware, the TCCA is intimately aware of the impacts of
diminished water deliveries to the CVP as a result of below average
precipitation and regulatory requirements placed upon the CVP and its
water users through the requirements established by the recent National
Marine Fisheries Service biological opinions for endangered salmon.
Your legislation will provide much needed relief in the form of a
flexible and useful tool that will allow water to be transferred from
willing parties to those in need within the CVP.
Many of our members have participated in water transfer programs in
the past and would continue under this legislation in a more flexible
manner. Also, the language in your legislation directing the Bureau of
Reclamation to work with other federal agencies to implement the
necessary long-term environmental processes addressing impacts of a
water transfer program on the ESA-listed Giant Garter Snake will be
imperative to its usefulness and success.
We look forward to working with you and your staff in the coming
months in this important legislative effort, and appreciate your
leadership in advancing this legislation and addressing California
water issues so important to our collective future.
Sincerely,
Jeffrey Sutton,
General Manager.
ALL
MARK__