[Congressional Record Volume 157, Number 27 (Friday, February 18, 2011)]
[Extensions of Remarks]
[Pages E261-E262]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             FULL-YEAR CONTINUING APPROPRIATIONS ACT, 2011

                                 ______
                                 

                               speech of

                            HON. DEVIN NUNES

                             of california

                    in the house of representatives

                       Tuesday, February 15, 2011

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the bill (H.R. 1) making 
     appropriations for the Department of Defense and the other 
     departments and agencies of the Government for the fiscal 
     year ending September 30, 2011, and for other purposes:

  Mr. NUNES. Mr. Chair, after four years of complete neglect by the 
Democratic majority, the San Joaquin Valley of California is in utter 
shambles. The previous Congress inexplicably and utterly failed to 
comprehend that shutting off the water supply to an agricultural 
economy would create economic devastation. As a result, unemployment 
rates rose to 20% and are as high as 40% in some parts of the Valley.
  For the past several years, I have fought to restore the water flow 
and bring back the lost jobs. Every attempt I made to offer legislation 
was rebuffed by the Democrat majority. Instead, they chose poverty over 
prosperity and environmental activists over farm workers. The message 
sent to families in the San Joaquin Valley was that Congress doesn't 
care that hungry people stand for hours in food lines. It was more 
important to nourish a fish than nourish a child. In a final insult to 
the people of the San Joaquin Valley, carrots from China were among the 
food products provided in those lines.
  Those dark days are coming to an end. A new dawn has come in the 
House of Representatives--one that will bring jobs and water back to 
the parched San Joaquin Valley. The bill before us today is the first 
step in that direction.
  Over the last three years, the San Joaquin Valley has seen water 
supply cuts imposed and justified by draconian biological opinions on 
the delta smelt and salmon developed by the Fish and Wildlife Service 
(FWS) and the National Marine Fisheries Services (NMFS). The United 
States District Court for the Eastern District of California has held 
that these opinions are unlawful and illogical; the National Academy of 
Sciences has said those opinions are not supported by science.
  With respect to the delta smelt biological opinion issued by the FWS 
on December 15, 2008, it has been remanded to the agency for 
preparation of a new biological opinion. The Court's December 14, 2010 
decision identified an overarching legal flaw in the ``reasonable and 
prudent alternative actions'' proposed by FWS. Specifically, the Court 
found that the FWS failed to comply with its own regulations that 
govern the development and evaluation of reasonable and prudent 
alternatives. The Court held that ``the RPA Actions manifestly 
interdict the water supply for domestic human consumption and 
agricultural use for over twenty million people who depend on the 
Projects for their water supply,'' and commented that, `` `Trust us' is 
not acceptable. FWS has shown no inclination to fully and honestly 
address water supply needs beyond the species, despite the fact that 
its own regulation requires such consideration.''
  The language that was included in Section 1475 of the bill (H.R. 1) 
before the House today was specifically addressed by the Court. The 
Court found that the delta smelt reasonable and prudent alternative 
Actions 1, 2 and 3 are scientifically flawed because of FWS's use of 
raw salvage numbers without accounting for changes in population 
abundance across years, was ``scientifically inappropriate.'' The Court 
further found that ``the PTM study does not justify the imposition of 
-5,000 cfs as an upper limit in Actions 1, 2, or 3,'' and directed FWS 
``to perform an accurate scientific analysis and justify its ultimate 
decision regarding the imposition of a water flow ceiling.''
  Additionally, the Court found that FWS's finding that project pumping 
reduces delta smelt prey, despite serious criticism of the underlying 
analysis by FWS's own peer review panel ``suggests another unlawful, 
results-driven choice, ignoring best available science.'' The Court 
said that FWS's attempt to blame the Central Valley Project and State 
Water Project for essentially all other stressors on the delta smelt 
population ``has not been justified, nor is it logical or explained by 
any science.'' The Court also said the entire modeling method employed 
by FWS in the delta smelt biological opinion was flawed, arbitrary and 
capricious, and ignored the best available science, all of which 
indicated that ``a bias was present.'' The Court concluded that because 
``the impacts of regulating Project Operations are so consequential, 
such unsupported attributions (a result in search of a rationale) are 
unconscionable.''
  With respect to the salmon biological opinion issued by the NMFS, on 
June 4, 2009, the Court granted a preliminary injunction against 
implementation of reasonable and prudent alternative Actions IV.2.1 and 
IV.2.3--both of which are addressed in Section 1475 of H.R. 1. In its 
May 18, 2010 findings, the Court declared ``there is little to no 
justification in the record for the exact flow ratios chosen for RPA 
Action IV.2.1.'' It explained that ``the record does not support a 
finding that the specific Vernalis flow to export ratios imposed by 
Action IV.2.1. . . . are necessary to avoid jeopardy and/or adverse 
modification to any of the Listed Species.''
  In addressing Action IV.2.3, the Court found ``NMFS did not address 
relative population impacts in developing or explaining RPA Action 
IV.2.3.'' The Court ruled that ``salvage data was not scaled for 
population size, which any prudent and competent fish biologist and 
statistician would have done, making NMFS' reliance on the salvage data 
scientifically erroneous.'' Also, the Court found that ``[t]here are 
serious questions whether there is support in the record for the 
general proposition that exports reduce survival of salmonids in the 
interior Delta.''
  Last year, the National Academy of Science (NAS) issued a report on 
both of these biological opinions, including the reasonable and prudent 
alternatives imposed by each; the report was titled a ``Scientific 
Assessment of Alternatives for Reducing Water Management Effects on 
Threatened and Endangered Fishes in California's Bay Delta.'' In 
particular, regarding the delta smelt biological opinion, the NAS found 
that ``there is substantial uncertainty regarding the amount of flow 
that should trigger a reduction in exports.'' It also found ``the 
historical distribution of smelt on which the relationship with OMR 
flows was established no longer exists. Delta smelt are now sparsely 
distributed in the central and southern delta . . . and pump salvage 
has been extremely low, less than four percent of the 50-year average 
index.''
  Regarding Action IV.2.3 in the salmon biological opinion, the report 
concluded that ``the threshold levels needed to protect fish is not 
definitively established.'' The report counseled that ``[u]ncertainty 
in the effect of the flow triggers needs to be reduced, and more 
flexible triggers that might require less water should be evaluated.'' 
The report also found that ``there is little direct evidence to support 
the position that this action alone will benefit the San Joaquin 
salmon'' absent increased San Joaquin River flows. In reference to 
Action IV.2.1, the report found that while flows may help out 
migration, reducing the ``effectiveness of reducing exports to improve 
steelhead smolt survival is less certain,'' and that there is a ``weak 
influence of exports in all survival relationships.''
  As a final criticism of the reasonable and prudent alternatives in 
the two biological opinions, the report decried the lack of a 
``quantitative analytical framework that ties them together within 
species, between smelt and salmonid species, and across the watershed. 
This type of systematic, formalized analysis is necessary to provide an 
objective determination of the net effect of the actions on the listed 
species and on water users.'' The report found the lack of any such 
analysis to be ``a serious deficiency.'' As the NAS report observed, 
``[t]his issue has been raised repeatedly in peer reviews, but still 
has not been incorporated in the NMFS and FWS analyses.''
  Despite what the opponents of turning on the pumps say, Section 1475 
of H.R. 1 will not prevent the Bureau of Reclamation from complying 
with the Endangered Species Act in carrying out its vital function to 
deliver water supplies. Instead, Section 1475 is intended to enable the 
Central Valley Project to operate unencumbered by the proposed agency 
alternatives that the Court has already found do not comply with law 
and therefore should not be enforced.
  Furthermore, the bill will ban federal funding for the restoration of 
the San Joaquin River during the 2011 fiscal year. This is the first 
step in efforts to replace the flawed billion dollar salmon run. It 
also demonstrates Congressional intent to suspend restoration flows for

[[Page E262]]

2011, thereby keeping the water on the east side of the valley. Through 
the replacement of the existing restoration plan, we will be able to 
establish both an environmentally and economically responsible San 
Joaquin River restoration. This will include a year-round, live river 
on the San Joaquin but will also ensure a robust east side agriculture 
economy.
  I call on my colleagues to support this bill and these vital 
provisions which will ensure that farmers in the San Joaquin Valley 
have water to irrigate their fields, grow crops that feed this nation, 
and put thousands of people back to work.

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