[Senate Report 110-400]
[From the U.S. Government Publishing Office]
Calendar No. 838
110th Congress Report
SENATE
2d Session 110-400
======================================================================
SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
_______
June 25, 2008.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 27]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 27) to authorize the implementation of
the San Joaquin River Restoration Settlement, having considered
the same, reports favorably thereon with an amendment and
recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause and insert in lieu
thereof the following:
SECTION 1. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Table of contents.
TITLE I--SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
Sec. 101. Short title.
Sec. 102. Purpose.
Sec. 103. Definitions.
Sec. 104. Implementation of settlement.
Sec. 105. Acquisition and Disposal of Property; Title to Facilities.
Sec. 106. Compliance with Applicable Law.
Sec. 107. Compliance with Central Valley Project Improvement Act.
Sec. 108. No Private Right of Action.
Sec. 109. Appropriations; Settlement Fund.
Sec. 110. Repayment contracts and acceleration of repayment of
construction costs.
Sec. 111. California Central Valley Spring Run Chinook salmon.
TITLE II--STUDY TO DEVELOP WATER PLAN; REPORT
Sec. 201. Study to develop water plan; report.
TITLE III--FRIANT DIVISION IMPROVEMENTS
Sec. 301. Federal facility improvements.
Sec. 302. Financial assistance for local projects.
Sec. 303. Authorization of appropriations.
TITLE I--SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
SEC. 101. SHORT TITLE.
This title may be cited as the ``San Joaquin River Restoration
Settlement Act''.
SEC. 102. PURPOSE.
The purpose of this title is to authorize implementation of the
Settlement.
SEC. 103. DEFINITIONS.
In this title:
(1) The terms ``Friant Division long-term contractors'',
``Interim Flows'', ``Restoration Flows'', ``Recovered Water
Account'', ``Restoration Goal'', and ``Water Management Goal''
have the meanings given the terms in the Settlement.
(2) The term ``Secretary'' means the Secretary of the
Interior.
(3) The term ``Settlement'' means the Stipulation of
Settlement dated September 13, 2006, in the litigation entitled
Natural Resources Defense Council, et al. v. Kirk Rodgers, et
al., United States District Court, Eastern District of
California, No. CIV. S-88-1658-LKK/GGH.
SEC. 104. IMPLEMENTATION OF SETTLEMENT.
(a) In General.--The Secretary of the Interior is hereby authorized
and directed to implement the terms and conditions of the Settlement in
cooperation with the State of California, including the following
measures as these measures are prescribed in the Settlement:
(1) Design and construct channel and structural improvements
as described in paragraph 11 of the Settlement, provided,
however, that the Secretary shall not make or fund any such
improvements to facilities or property of the State of
California without the approval of the State of California and
the State's agreement in 1 or more memoranda of understanding
to participate where appropriate.
(2) Modify Friant Dam operations so as to provide Restoration
Flows and Interim Flows.
(3) Acquire water, water rights, or options to acquire water
as described in paragraph 13 of the Settlement, provided,
however, such acquisitions shall only be made from willing
sellers and not through eminent domain.
(4) Implement the terms and conditions of paragraph 16 of the
Settlement related to recirculation, recapture, reuse,
exchange, or transfer of water released for Restoration Flows
or Interim Flows, for the purpose of accomplishing the Water
Management Goal of the Settlement, subject to--
(A) applicable provisions of California water law;
(B) the Secretary's use of Central Valley Project
facilities to make Project water (other than water
released from Friant Dam pursuant to the Settlement)
and water acquired through transfers available to
existing south-of-Delta Central Valley Project
contractors; and
(C) the Secretary's performance of the Agreement of
November 24, 1986, between the United States of America
and the Department of Water Resources of the State of
California for the coordinated operation of the Central
Valley Project and the State Water Project as
authorized by Congress in section 2(d) of the Act of
August 26, 1937 (50 Stat. 850, 100 Stat. 3051),
including any agreement to resolve conflicts arising
from said Agreement.
(5) Develop and implement the Recovered Water Account as
specified in paragraph 16(b) of the Settlement, including the
pricing and payment crediting provisions described in paragraph
16(b)(3) of the Settlement, provided that all other provisions
of Federal reclamation law shall remain applicable.
(b) Agreements.--
(1) Agreements with the state.--In order to facilitate or
expedite implementation of the Settlement, the Secretary is
authorized and directed to enter into appropriate agreements,
including cost-sharing agreements, with the State of
California.
(2) Other agreements.--The Secretary is authorized to enter
into contracts, memoranda of understanding, financial
assistance agreements, cost sharing agreements, and other
appropriate agreements with State, tribal, and local
governmental agencies, and with private parties, including
agreements related to construction, improvement, and operation
and maintenance of facilities, subject to any terms and
conditions that the Secretary deems necessary to achieve the
purposes of the Settlement.
(c) Acceptance and Expenditure of Non-Federal Funds.--The Secretary
is authorized to accept and expend non-Federal funds in order to
facilitate implementation of the Settlement.
(d) Mitigation of Impacts.--Prior to the implementation of decisions
or agreements to construct, improve, operate, or maintain facilities
that the Secretary determines are needed to implement the Settlement,
the Secretary shall identify--
(1) the impacts associated with such actions; and
(2) the measures which shall be implemented to mitigate
impacts on adjacent and downstream water users and landowners.
(e) Design and Engineering Studies.--The Secretary is authorized to
conduct any design or engineering studies that are necessary to
implement the Settlement.
(f) Effect on Contract Water Allocations.--Except as otherwise
provided in this section, the implementation of the Settlement and the
reintroduction of California Central Valley Spring Run Chinook salmon
pursuant to the Settlement and section 111, shall not result in the
involuntary reduction in contract water allocations to Central Valley
Project long-term contractors, other than Friant Division long-term
contractors.
(g) Effect on Existing Water Contracts.--Except as provided in the
Settlement and this title, nothing in this title shall modify or amend
the rights and obligations of the parties to any existing water
service, repayment, purchase, or exchange contract.
SEC. 105. ACQUISITION AND DISPOSAL OF PROPERTY; TITLE TO FACILITIES.
(a) Title to Facilities.--Unless acquired pursuant to subsection (b),
title to any facility or facilities, stream channel, levees, or other
real property modified or improved in the course of implementing the
Settlement authorized by this title, and title to any modifications or
improvements of such facility or facilities, stream channel, levees, or
other real property--
(1) shall remain in the owner of the property; and
(2) shall not be transferred to the United States on account
of such modifications or improvements.
(b) Acquisition of Property.--
(1) In general.--The Secretary is authorized to acquire
through purchase from willing sellers any property, interests
in property, or options to acquire real property needed to
implement the Settlement authorized by this title.
(2) Applicable law.--The Secretary is authorized, but not
required, to exercise all of the authorities provided in
section 2 of the Act of August 26, 1937 (50 Stat. 844, chapter
832), to carry out the measures authorized in this section and
section 104.
(c) Disposal of Property.--
(1) In general.--Upon the Secretary's determination that
retention of title to property or interests in property
acquired pursuant to this title is no longer needed to be held
by the United States for the furtherance of the Settlement, the
Secretary is authorized to dispose of such property or interest
in property on such terms and conditions as the Secretary deems
appropriate and in the best interest of the United States,
including possible transfer of such property to the State of
California.
(2) Right of first refusal.--In the event the Secretary
determines that property acquired pursuant to this title
through the exercise of its eminent domain authority is no
longer necessary for implementation of the Settlement, the
Secretary shall provide a right of first refusal to the
property owner from whom the property was initially acquired,
or his or her successor in interest, on the same terms and
conditions as the property is being offered to other parties.
(3) Disposition of proceeds.--Proceeds from the disposal by
sale or transfer of any such property or interests in such
property shall be deposited in the fund established by section
109(c).
(d) Groundwater Bank.--Nothing in this title authorizes the Secretary
to operate a groundwater bank along or adjacent to the San Joaquin
River upstream of the confluence with the Merced River, and any such
groundwater bank shall be operated by a non-Federal entity.
SEC. 106. COMPLIANCE WITH APPLICABLE LAW.
(a) Applicable Law.--
(1) In general.--In undertaking the measures authorized by
this title, the Secretary and the Secretary of Commerce shall
comply with all applicable Federal and State laws, rules, and
regulations, including the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) and the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.), as necessary.
(2) Environmental reviews.--The Secretary and the Secretary
of Commerce are authorized and directed to initiate and
expeditiously complete applicable environmental reviews and
consultations as may be necessary to effectuate the purposes of
the Settlement.
(b) Effect on State Law.--Nothing in this title shall preempt State
law or modify any existing obligation of the United States under
Federal reclamation law to operate the Central Valley Project in
conformity with State law.
(c) Use of Funds for Environmental Reviews.--
(1) Definition of environmental review.--For purposes of this
subsection, the term ``environmental review'' includes any
consultation and planning necessary to comply with subsection
(a).
(2) Participation in environmental review process.--In
undertaking the measures authorized by section 104, and for
which environmental review is required, the Secretary may
provide funds made available under this title to affected
Federal agencies, State agencies, local agencies, and Indian
tribes if the Secretary determines that such funds are
necessary to allow the Federal agencies, State agencies, local
agencies, or Indian tribes to effectively participate in the
environmental review process.
(3) Limitation.--Funds may be provided under paragraph (2)
only to support activities that directly contribute to the
implementation of the terms and conditions of the Settlement.
(d) Nonreimbursable Funds.--The United States' share of the costs of
implementing this title shall be nonreimbursable under Federal
reclamation law, provided that nothing in this subsection shall limit
or be construed to limit the use of the funds assessed and collected
pursuant to sections 3406(c)(1) and 3407(d)(2) of the Reclamation
Projects Authorization and Adjustment Act of 1992 (Public Law 102-575;
106 Stat. 4721, 4727), for implementation of the Settlement, nor shall
it be construed to limit or modify existing or future Central Valley
Project ratesetting policies.
SEC. 107. COMPLIANCE WITH CENTRAL VALLEY PROJECT IMPROVEMENT ACT.
Congress hereby finds and declares that the Settlement satisfies and
discharges all of the obligations of the Secretary contained in section
3406(c)(1) of the Reclamation Projects Authorization and Adjustment Act
of 1992 (Public Law 102-575; 106 Stat. 4721), provided, however, that--
(1) the Secretary shall continue to assess and collect the
charges provided in section 3406(c)(1) of the Reclamation
Projects Authorization and Adjustment Act of 1992 (Public Law
102-575; 106 Stat. 4721), as provided in the Settlement; and
(2) those assessments and collections shall continue to be
counted toward the requirements of the Secretary contained in
section 3407(c)(2) of the Reclamation Projects Authorization
and Adjustment Act of 1992 (Public Law 102-575; 106 Stat.
4726).
SEC. 108. NO PRIVATE RIGHT OF ACTION.
(a) In General.--Nothing in this title confers upon any person or
entity not a party to the Settlement a private right of action or claim
for relief to interpret or enforce the provisions of this title or the
Settlement.
(b) Applicable Law.--This section shall not alter or curtail any
right of action or claim for relief under any other applicable law.
SEC. 109. APPROPRIATIONS; SETTLEMENT FUND.
(a) Implementation Costs.--
(1) In general.--The costs of implementing the Settlement
shall be covered by payments or in-kind contributions made by
Friant Division contractors and other non-Federal parties,
including the funds provided in paragraphs (1) through (4) of
subsection (c), estimated to total $440,000,000, of which the
non-Federal payments are estimated to total $200,000,000 (at
October 2006 price levels) and the amount from repaid Central
Valley Project capital obligations is estimated to total
$240,000,000, the additional Federal appropriation of
$250,000,000 authorized pursuant to subsection (b)(1), and such
additional funds authorized pursuant to subsection (b)(2);
provided however, that the costs of implementing the provisions
of section 104(a)(1) shall be shared by the State of California
pursuant to the terms of a memorandum of understanding executed
by the State of California and the Parties to the Settlement on
September 13, 2006, which includes at least $110,000,000 of
State funds.
(2) Additional agreements.--
(A) In general.--The Secretary shall enter into 1 or
more agreements to fund or implement improvements on a
project-by-project basis with the State of California.
(B) Requirements.--Any agreements entered into under
subparagraph (A) shall provide for recognition of
either monetary or in-kind contributions toward the
State of California's share of the cost of implementing
the provisions of section 104(a)(1).
(3) Limitation.--Except as provided in the Settlement, to the
extent that costs incurred solely to implement this Settlement
would not otherwise have been incurred by any entity or public
or local agency or subdivision of the State of California, such
costs shall not be borne by any such entity, agency, or
subdivision of the State of California, unless such costs are
incurred on a voluntary basis.
(b) Authorization of Appropriations.--
(1) In general.--In addition to the funding provided in
subsection (c), there are also authorized to be appropriated
not to exceed $250,000,000 (at October 2006 price levels) to
implement this title and the Settlement, to be available until
expended; provided however, that the Secretary is authorized to
spend such additional appropriations only in amounts equal to
the amount of funds deposited in the Fund (not including
payments under subsection (c)(2) and proceeds under subsection
(c)(3)), the amount of in-kind contributions, and other non-
Federal payments actually committed to the implementation of
this title or the Settlement.
(2) Use of the central valley project restoration fund.--The
Secretary is authorized to use monies from the Central Valley
Project Restoration Fund created under section 3407 of the
Reclamation Projects Authorization and Adjustment Act of 1992
(Public Law 102-575; 106 Stat. 4727) for purposes of this title
in an amount not to exceed $2,000,000 (October 2006 price
levels) in any fiscal year.
(c) Fund.--There is hereby established within the Treasury of the
United States a fund, to be known as the San Joaquin River Restoration
Fund, into which the following shall be deposited and used solely for
the purpose of implementing the Settlement except as otherwise provided
in subsections (a) and (b) of section 303, to be available for
expenditure without further appropriation:
(1) At the beginning of the fiscal year following enactment
of this title, all payments received pursuant to section
3406(c)(1) of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575; 106 Stat. 4721).
(2) The construction cost component (not otherwise needed to
cover operation and maintenance costs) of payments made by
Friant Division, Hidden Unit, and Buchanan Unit long-term
contractors pursuant to long-term water service contracts or
pursuant to repayment contracts, including repayment contracts
executed pursuant to section 110. The construction cost
repayment obligation assigned such contractors under such
contracts shall be reduced by the amount paid pursuant to this
paragraph and the appropriate share of the existing Federal
investment in the Central Valley Project to be recovered by the
Secretary pursuant to Public Law 99-546 (100 Stat. 3050) shall
be reduced by an equivalent sum.
(3) Proceeds from the sale of water pursuant to the
Settlement, or from the sale of property or interests in
property as provided in section 105.
(4) Any non-Federal funds, including State cost-sharing
funds, contributed to the United States for implementation of
the Settlement, which the Secretary may expend without further
appropriation for the purposes for which contributed.
(d) Limitation on Contributions.--Payments made by long-term
contractors who receive water from the Friant Division and Hidden and
Buchanan Units of the Central Valley Project pursuant to sections
3406(c)(1) and 3407(d)(2) of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575; 106 Stat. 4721, 4727) and
payments made pursuant to paragraph 16(b)(3) of the Settlement and
subsection (c)(2) shall be the limitation of such entities' direct
financial contribution to the Settlement, subject to the terms and
conditions of paragraph 21 of the Settlement.
(e) No Additional Expenditures Required.--Nothing in this title shall
be construed to require a Federal official to expend Federal funds not
appropriated by Congress, or to seek the appropriation of additional
funds by Congress, for the implementation of the Settlement.
(f) Reach 4B.--
(1) Study.--
(A) In general.--In accordance with the Settlement
and the memorandum of understanding executed pursuant
to paragraph 6 of the Settlement, the Secretary shall
conduct a study that specifies--
(i) the costs of undertaking any work
required under paragraph 11(a)(3) of the
Settlement to increase the capacity of reach 4B
prior to reinitiation of Restoration Flows;
(ii) the impacts associated with reinitiation
of such flows; and
(iii) measures that shall be implemented to
mitigate impacts.
(B) Deadline.--The study under subparagraph (A) shall
be completed prior to restoration of any flows other
than Interim Flows.
(2) Report.--
(A) In general.--The Secretary shall file a report
with Congress not later than 90 days after issuing a
determination, as required by the Settlement, on
whether to expand channel conveyance capacity to 4500
cubic feet per second in reach 4B of the San Joaquin
River, or use an alternative route for pulse flows,
that--
(i) explains whether the Secretary has
decided to expand Reach 4B capacity to 4500
cubic feet per second; and
(ii) addresses the following matters:
(I) The basis for the Secretary's
determination, whether set out in
environmental review documents or
otherwise, as to whether the expansion
of Reach 4B would be the preferable
means to achieve the Restoration Goal
as provided in the Settlement,
including how different factors were
assessed such as comparative biological
and habitat benefits, comparative
costs, relative availability of State
cost-sharing funds, and the comparative
benefits and impacts on water
temperature, water supply, private
property, and local and downstream
flood control.
(II) The Secretary's final cost
estimate for expanding Reach 4B
capacity to 4500 cubic feet per second,
or any alternative route selected, as
well as the alternative cost estimates
provided by the State, by the
Restoration Administrator, and by the
other parties to the Settlement.
(III) The Secretary's plan for
funding the costs of expanding Reach 4B
or any alternative route selected,
whether by existing Federal funds
provided under this Act, by non-Federal
funds, by future Federal
appropriations, or some combination of
such sources.
(B) Determination required.--The Secretary shall, to
the extent feasible, make the determination in
subparagraph (A) prior to undertaking any substantial
construction work to increase capacity in reach 4B.
(3) Costs.--If the Secretary's estimated Federal cost for
expanding reach 4B in paragraph (2), in light of the
Secretary's funding plan set out in that paragraph, would
exceed the remaining Federal funding authorized by this title
(including all funds reallocated, all funds dedicated, and all
new funds authorized by this title and separate from all
commitments of State and other non-Federal funds and in-kind
commitments), then before the Secretary commences actual
construction work in reach 4B (other than planning, design,
feasibility, or other preliminary measures) to expand capacity
to 4500 cubic feet per second to implement this Settlement,
Congress must have increased the applicable authorization
ceiling provided by this title in an amount at least sufficient
to cover the higher estimated Federal costs.
SEC. 110. REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF
CONSTRUCTION COSTS.
(a) Conversion of Contracts.--
(1) The Secretary is authorized and directed to convert,
prior to December 31, 2010, all existing long-term contracts
with the following Friant Division, Hidden Unit, and Buchanan
Unit contractors, entered under subsection (e) of section 9 of
the Act of August 4, 1939 (53 Stat. 1196), to contracts under
subsection (d) of section 9 of said Act (53 Stat. 1195), under
mutually agreeable terms and conditions: Arvin-Edison Water
Storage District; Delano-Earlimart Irrigation District; Exeter
Irrigation District; Fresno Irrigation District; Ivanhoe
Irrigation District; Lindmore Irrigation District; Lindsay-
Strathmore Irrigation District; Lower Tule River Irrigation
District; Orange Cove Irrigation District; Porterville
Irrigation District; Saucelito Irrigation District; Shafter-
Wasco Irrigation District; Southern San Joaquin Municipal
Utility District; Stone Corral Irrigation District; Tea Pot
Dome Water District; Terra Bella Irrigation District; Tulare
Irrigation District; Madera Irrigation District; and Chowchilla
Water District. Upon request of the contractor, the Secretary
is authorized to convert, prior to December 31, 2010, other
existing long-term contracts with Friant Division contractors
entered under subsection (e) of section 9 of the Act of August
4, 1939 (53 Stat. 1196), to contracts under subsection (d) of
section 9 of said Act (53 Stat. 1195), under mutually agreeable
terms and conditions.
(2) Upon request of the contractor, the Secretary is further
authorized to convert, prior to December 31, 2010, any existing
Friant Division long-term contract entered under subsection
(c)(2) of section 9 of the Act of August 4, 1939 (53 Stat.
1194), to a contract under subsection (c)(1) of section 9 of
said Act, under mutually agreeable terms and conditions.
(3) All such contracts entered into pursuant to paragraph (1)
shall--
(A) require the repayment, either in lump sum or by
accelerated prepayment, of the remaining amount of
construction costs identified in the Central Valley
Project Schedule of Irrigation Capital Rates by
Contractor 2007 Irrigation Water Rates, dated January
25, 2007, as adjusted to reflect payments not reflected
in such schedule, and properly assignable for ultimate
return by the contractor, no later than January 31,
2011, or if made in approximately equal annual
installments, no later than January 31, 2014; such
amount to be discounted by \1/2\ the Treasury Rate. An
estimate of the remaining amount of construction costs
as of January 31, 2011, as adjusted, shall be provided
by the Secretary to each contractor no later than June
30, 2010;
(B) require that, notwithstanding subsection (c)(2),
construction costs or other capitalized costs incurred
after the effective date of the contract or not
reflected in the schedule referenced in subparagraph
(A), and properly assignable to such contractor, shall
be repaid in not more than 5 years after notification
of the allocation if such amount is a result of a
collective annual allocation of capital costs to the
contractors exercising contract conversions under this
subsection of less than $5,000,000. If such amount is
$5,000,000 or greater, such cost shall be repaid as
provided by applicable Reclamation law, provided that
the reference to the amount of $5,000,000 shall not be
a precedent in any other context;
(C) provide that power revenues will not be available
to aid in repayment of construction costs allocated to
irrigation under the contract; and
(D) conform to the Settlement and this title and
shall continue so long as the contractor pays
applicable charges, consistent with subsection (c)(2)
and applicable law.
(4) All such contracts entered into pursuant to paragraph (2)
shall--
(A) require the repayment in lump sum of the
remaining amount of construction costs identified in
the most current version of the Central Valley Project
Schedule of Municipal and Industrial Water Rates, as
adjusted to reflect payments not reflected in such
schedule, and properly assignable for ultimate return
by the contractor, no later than January 31, 2014. An
estimate of the remaining amount of construction costs
as of January 31, 2014, as adjusted, shall be provided
by the Secretary to each contractor no later than June
30, 2013;
(B) require that, notwithstanding subsection (c)(2),
construction costs or other capitalized costs incurred
after the effective date of the contract or not
reflected in the schedule referenced in subparagraph
(A), and properly assignable to such contractor, shall
be repaid in not more than 5 years after notification
of the allocation if such amount is a result of a
collective annual allocation of capital costs to the
contractors exercising contract conversions under this
subsection of less than $5,000,000. If such amount is
$5,000,000 or greater, such cost shall be repaid as
provided by applicable Reclamation law, provided that
the reference to the amount of $5,000,000 shall not be
a precedent in any other context; and
(C) conform to the Settlement and this title and
shall continue so long as the contractor pays
applicable charges, consistent with subsection (c)(2)
and applicable law.
(b) Final Adjustment.--The amounts paid pursuant to subsection (a)
shall be subject to adjustment following a final cost allocation by the
Secretary upon completion of the construction of the Central Valley
Project. In the event that the final cost allocation indicates that the
costs properly assignable to the contractor are greater than what has
been paid by the contractor, the contractor shall be obligated to pay
the remaining allocated costs. The term of such additional repayment
contract shall be no less than 1 year and no more than 10 years,
however, mutually agreeable provisions regarding the rate of repayment
of such amount may be developed by the parties. In the event that the
final cost allocation indicates that the costs properly assignable to
the contractor are less than what the contractor has paid, the
Secretary is authorized and directed to credit such overpayment as an
offset against any outstanding or future obligation of the contractor.
(c) Applicability of Certain Provisions.--
(1) Notwithstanding any repayment obligation under subsection
(a)(3)(B) or subsection (b), upon a contractor's compliance
with and discharge of the obligation of repayment of the
construction costs as provided in subsection (a)(3)(A), the
provisions of section 213(a) and (b) of the Reclamation Reform
Act of 1982 (96 Stat. 1269) shall apply to lands in such
district.
(2) Notwithstanding any repayment obligation under paragraph
(3)(B) or (4)(B) of subsection (a), or subsection (b), upon a
contractor's compliance with and discharge of the obligation of
repayment of the construction costs as provided in paragraphs
(3)(A) and (4)(A) of subsection (a), the Secretary shall waive
the pricing provisions of section 3405(d) of the Reclamation
Projects Authorization and Adjustment Act of 1992 (Public Law
102-575) for such contractor, provided that such contractor
shall continue to pay applicable operation and maintenance
costs and other charges applicable to such repayment contracts
pursuant to the then-current rate-setting policy and applicable
law.
(3) Provisions of the Settlement applying to Friant Division,
Hidden Unit, and Buchanan Unit long-term water service
contracts shall also apply to contracts executed pursuant to
this section.
(d) Reduction of Charge for Those Contracts Converted Pursuant to
Subsection (a)(1).--
(1) At the time all payments by the contractor required by
subsection (a)(3)(A) have been completed, the Secretary shall
reduce the charge mandated in section 107(1) of this title,
from 2020 through 2039, to offset the financing costs as
defined in section 110(d)(3). The reduction shall be calculated
at the time all payments by the contractor required by
subsection (a)(3)(A) have been completed. The calculation shall
remain fixed from 2020 through 2039 and shall be based upon
anticipated average annual water deliveries, as mutually agreed
upon by the Secretary and the contractor, for the period from
2020 through 2039, and the amounts of such reductions shall be
discounted using the Treasury Rate; provided, that such charge
shall not be reduced to less than $4.00 per acre foot of
project water delivered; provided further, that such reduction
shall be implemented annually unless the Secretary determines,
based on the availability of other monies, that the charges
mandated in section 107(1) are otherwise needed to cover
ongoing federal costs of the Settlement, including any federal
operation and maintenance costs of facilities that the
Secretary determines are needed to implement the Settlement. If
the Secretary determines that such charges are necessary to
cover such ongoing federal costs, the Secretary shall, instead
of making the reduction in such charges, reduce the
contractor's operation and maintenance obligation by an
equivalent amount, and such amount shall not be recovered by
the United States from any Central Valley Project contractor,
provided nothing herein shall affect the obligation of the
contractor to make payments pursuant to a transfer agreement
with a non-federal operating entity.
(2) If the calculated reduction in paragraph (1), taking into
consideration the minimum amount required, does not result in
the contractor offsetting its financing costs, the Secretary is
authorized and directed to reduce, after 2019, any outstanding
or future obligations of the contractor to the Bureau of
Reclamation, other than the charge assessed and collected under
section 3407(d) of Public law 102-575, by the amount of such
deficiency, with such amount indexed to 2020 using the Treasury
Rate and such amount shall be not be recovered by the United
States from any Central Valley Project contractor, provided
nothing herein shall affect the obligation of the contractor to
make payments pursuant to a transfer agreement with a non-
Federal operating entity.
(3) Financing costs, for the purposes of this subsection,
shall be computed as the difference of the net present value of
the construction cost identified in subsection (a)(3)(A) using
the full Treasury Rate as compared to using one half of the
Treasury Rate and applying those rates against a calculated
average annual capital repayment through 2030.
(4) Effective in 2040, the charge shall revert to the amount
called for in section 107(1) of this title.
(5) For purposes of this section, ``Treasury Rate'' shall be
defined as the 20 year Constant Maturity Treasury (CMT) rate
published by the United States Department of the Treasury as of
October 1, 2010.
(e) Satisfaction of Certain Provisions.--
(1) In general.--Upon the first release of Interim Flows or
Restoration Flows, pursuant to paragraphs 13 or 15 of the
Settlement, any short- or long-term agreement, to which 1 or
more long-term Friant Division, Hidden Unit, or Buchanan Unit
contractor that converts its contract pursuant to subsection
(a) is a party, providing for the transfer or exchange of water
not released as Interim Flows or Restoration Flows shall be
deemed to satisfy the provisions of subsection 3405(a)(1)(A)
and (I) of the Reclamation Projects Authorization and
Adjustment Act of 1992 (Public Law 102-575) without the further
concurrence of the Secretary as to compliance with said
subsections if the contractor provides, not later than 90 days
before commencement of any such transfer or exchange for a
period in excess of 1 year, and not later than 30 days before
commencement of any proposed transfer or exchange with duration
of less than 1 year, written notice to the Secretary stating
how the proposed transfer or exchange is intended to reduce,
avoid, or mitigate impacts to water deliveries caused by the
Interim Flows or Restoration Flows or is intended to otherwise
facilitate the Water Management Goal, as described in the
Settlement. The Secretary shall promptly make such notice
publicly available.
(2) Determination of reductions to water deliveries.--Water
transferred or exchanged under an agreement that meets the
terms of this subsection shall not be counted as a replacement
or an offset for purposes of determining reductions to water
deliveries to any Friant Division long-term contractor except
as provided in paragraph 16(b) of the Settlement. The Secretary
shall, at least annually, make publicly available a compilation
of the number of transfer or exchange agreements exercising the
provisions of this subsection to reduce, avoid, or mitigate
impacts to water deliveries caused by the Interim Flows or
Restoration Flows or to facilitate the Water Management Goal,
as well as the volume of water transferred or exchanged under
such agreements.
(3) State law.--Nothing in this subsection alters State law
or permit conditions, including any applicable geographical
restrictions on the place of use of water transferred or
exchanged pursuant to this subsection.
(f) Certain Repayment Obligations Not Altered.--Implementation of the
provisions of this section shall not alter the repayment obligation of
any other long-term water service or repayment contractor receiving
water from the Central Valley Project, or shift any costs that would
otherwise have been properly assignable to the Friant contractors
absent this section, including operations and maintenance costs,
construction costs, or other capitalized costs incurred after the date
of enactment of this Act, to other such contractors.
(g) Statutory Interpretation.--Nothing in this title shall be
construed to affect the right of any Friant Division, Hidden Unit, or
Buchanan Unit long-term contractor to use a particular type of
financing to make the payments required in paragraph (3)(A) or (4)(A)
of subsection (a).
SEC. 111. CALIFORNIA CENTRAL VALLEY SPRING RUN CHINOOK SALMON.
(a) Finding.--Congress finds that the implementation of the
Settlement to resolve 18 years of contentious litigation regarding
restoration of the San Joaquin River and the reintroduction of the
California Central Valley Spring Run Chinook salmon is a unique and
unprecedented circumstance that requires clear expressions of
Congressional intent regarding how the provisions of the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) are utilized to achieve
the goals of restoration of the San Joaquin River and the successful
reintroduction of California Central Valley Spring Run Chinook salmon.
(b) Reintroduction in the San Joaquin River.--California Central
Valley Spring Run Chinook salmon shall be reintroduced in the San
Joaquin River below Friant Dam pursuant to section 10(j) of the
Endangered Species Act of 1973 (16 U.S.C. 1539(j)) and the Settlement,
provided that the Secretary of Commerce finds that a permit for the
reintroduction of California Central Valley Spring Run Chinook salmon
may be issued pursuant to section 10(a)(1)(A) of the Endangered Species
Act of 1973 (16 U.S.C. 1539(a)(1)(A)).
(c) Final Rule.--
(1) Definition of third party.--For the purpose of this
subsection, the term ``third party'' means persons or entities
diverting or receiving water pursuant to applicable State and
Federal laws and shall include Central Valley Project
contractors outside of the Friant Division of the Central
Valley Project and the State Water Project.
(2) Issuance.--The Secretary of Commerce shall issue a final
rule pursuant to section 4(d) of the Endangered Species Act of
1973 (16 U.S.C. 1533(d)) governing the incidental take of
reintroduced California Central Valley Spring Run Chinook
salmon prior to the reintroduction.
(3) Required components.--The rule issued under paragraph (2)
shall provide that the reintroduction will not impose more than
de minimus: water supply reductions, additional storage
releases, or bypass flows on unwilling third parties due to
such reintroduction.
(4) Applicable law.--Nothing in this section--
(A) diminishes the statutory or regulatory
protections provided in the Endangered Species Act for
any species listed pursuant to section 4 of the
Endangered Species Act of 1973 (16 U.S.C. 1533) other
than the reintroduced population of California Central
Valley Spring Run Chinook salmon, including protections
pursuant to existing biological opinions or new
biological opinions issued by the Secretary or
Secretary of Commerce; or
(B) precludes the Secretary or Secretary of Commerce
from imposing protections under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.) for other species
listed pursuant to section 4 of that Act (16 U.S.C.
1533) because those protections provide incidental
benefits to such reintroduced California Central Valley
Spring Run Chinook salmon.
(d) Report.--
(1) In general.--Not later than December 31, 2024, the
Secretary of Commerce shall report to Congress on the progress
made on the reintroduction set forth in this section and the
Secretary's plans for future implementation of this section.
(2) Inclusions.--The report under paragraph (1) shall
include--
(A) an assessment of the major challenges, if any, to
successful reintroduction;
(B) an evaluation of the effect, if any, of the
reintroduction on the existing population of California
Central Valley Spring Run Chinook salmon existing on
the Sacramento River or its tributaries; and
(C) an assessment regarding the future of the
reintroduction.
(e) FERC Projects.--
(1) In general.--With regard to California Central Valley
Spring Run Chinook salmon reintroduced pursuant to the
Settlement, the Secretary of Commerce shall exercise its
authority under section 18 of the Federal Power Act (16 U.S.C.
811) by reserving its right to file prescriptions in
proceedings for projects licensed by the Federal Energy
Regulatory Commission on the Calaveras, Stanislaus, Tuolumne,
Merced, and San Joaquin rivers and otherwise consistent with
subsection (c) until after the expiration of the term of the
Settlement, December 31, 2025, or the expiration of the
designation made pursuant to subsection (b), whichever ends
first.
(2) Effect of subsection.--Nothing in this subsection shall
preclude the Secretary of Commerce from imposing prescriptions
pursuant to section 18 of the Federal Power Act (16 U.S.C. 811)
solely for other anadromous fish species because those
prescriptions provide incidental benefits to such reintroduced
California Central Valley Spring Run Chinook salmon.
(f) Effect of Section.--Nothing in this section is intended or shall
be construed--
(1) to modify the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) or the Federal Power Act (16 U.S.C. 791a et
seq.); or
(2) to establish a precedent with respect to any other
application of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) or the Federal Power Act (16 U.S.C. 791a et
seq.).
TITLE II--STUDY TO DEVELOP WATER PLAN; REPORT
SEC. 201. STUDY TO DEVELOP WATER PLAN; REPORT.
(a) Plan.--
(1) Grant.--To the extent that funds are made available in
advance for this purpose, the Secretary of the Interior, acting
through the Bureau of Reclamation, shall provide direct
financial assistance to the California Water Institute, located
at California State University, Fresno, California, to conduct
a study regarding the coordination and integration of sub-
regional integrated regional water management plans into a
unified Integrated Regional Water Management Plan for the
subject counties in the hydrologic basins that would address
issues related to--
(A) water quality;
(B) water supply (both surface, ground water banking,
and brackish water desalination);
(C) water conveyance;
(D) water reliability;
(E) water conservation and efficient use (by
distribution systems and by end users);
(F) flood control;
(G) water resource-related environmental enhancement;
and
(H) population growth.
(2) Study area.--The study area referred to in paragraph (1)
is the proposed study area of the San Joaquin River Hydrologic
Region and Tulare Lake Hydrologic Region, as defined by
California Department of Water Resources Bulletin 160-05,
volume 3, chapters 7 and 8, including Kern, Tulare, Kings,
Fresno, Madera, Merced, Stanislaus, and San Joaquin counties in
California.
(b) Use of Plan.--The Integrated Regional Water Management Plan
developed for the 2 hydrologic basins under subsection (a) shall serve
as a guide for the counties in the study area described in subsection
(a)(2) to use as a mechanism to address and solve long-term water needs
in a sustainable and equitable manner.
(c) Report.--The Secretary shall ensure that a report containing the
results of the Integrated Regional Water Management Plan for the
hydrologic regions is submitted to the Committee on Energy and Natural
Resources of the Senate and the Committee on Natural Resources of the
House of Representatives not later than 24 months after financial
assistance is made available to the California Water Institute under
subsection (a)(1).
(d) Authorization of Appropriations.--There are authorized to be
appropriated to carry out this section $1,000,000 to remain available
until expended.
TITLE III--FRIANT DIVISION IMPROVEMENTS
SEC. 301. FEDERAL FACILITY IMPROVEMENTS.
(a) The Secretary of the Interior (hereafter referred to as the
``Secretary'') is authorized and directed to conduct feasibility
studies in coordination with appropriate Federal, State, regional, and
local authorities on the following improvements and facilities in the
Friant Division, Central Valley Project, California:
(1) Restoration of the capacity of the Friant-Kern Canal and
Madera Canal to such capacity as previously designed and
constructed by the Bureau of Reclamation.
(2) Reverse flow pump-back facilities on the Friant-Kern
Canal, with reverse-flow capacity of approximately 500 cubic
feet per second at the Poso and Shafter Check Structures and
approximately 300 cubic feet per second at the Woollomes Check
Structure.
(b) Upon completion of and consistent with the applicable feasibility
studies, the Secretary is authorized to construct the improvements and
facilities identified in subsection (a) in accordance with all
applicable Federal and State laws.
(c) The costs of implementing this section shall be in accordance
with section 303, and shall be a nonreimbursable Federal expenditure.
SEC. 302. FINANCIAL ASSISTANCE FOR LOCAL PROJECTS.
(a) Authorization.--The Secretary is authorized to provide financial
assistance to local agencies within the Central Valley Project,
California, for the planning, design, environmental compliance, and
construction of local facilities to bank water underground or to
recharge groundwater, and that recover such water, provided that the
project meets the criteria in subsection (b). The Secretary is further
authorized to require that any such local agency receiving financial
assistance under the terms of this section submit progress reports and
accountings to the Secretary, as the Secretary deems appropriate, which
such reports shall be publicly available.
(b) Criteria.--
(1) A project shall be eligible for Federal financial
assistance under subsection (a) only if all or a portion of the
project is designed to reduce, avoid, or offset the quantity of
the expected water supply impacts to Friant Division long-term
contractors caused by the Interim or Restoration Flows
authorized in title I of this Act, and such quantities have not
already been reduced, avoided, or offset by other programs or
projects.
(2) Federal financial assistance shall only apply to the
portion of a project that the local agency designates as
reducing, avoiding, or offsetting the expected water supply
impacts caused by the Interim or Restoration Flows authorized
in title I of this Act, consistent with the methodology
developed pursuant to paragraph (3)(C).
(3) No Federal financial assistance shall be provided by the
Secretary under this title for construction of a project under
subsection (a) unless the Secretary--
(A) determines that appropriate planning, design, and
environmental compliance activities associated with
such a project have been completed, and that the
Secretary has been offered the opportunity to
participate in the project at a price that is no higher
than the local agency's own costs, in order to secure
necessary storage, extraction, and conveyance rights
for water that may be needed to meet the Restoration
Goal as described in title I of this Act, where such
project has capacity beyond that designated for the
purposes in paragraph (2) or where it is feasible to
expand such project to allow participation by the
Secretary;
(B) determines, based on information available at the
time, that the local agency has the financial
capability and willingness to fund its share of the
project's construction and all operation and
maintenance costs on an annual basis;
(C) determines that a method acceptable to the
Secretary has been developed for quantifying the
benefit, in terms of reduction, avoidance, or offset of
the water supply impacts expected to be caused by the
Interim or Restoration Flows authorized in title I of
this Act, that will result from the project, and for
ensuring appropriate adjustment in the recovered water
account pursuant to section 104(a)(5); and
(D) has entered into a cost-sharing agreement with
the local agency which commits the local agency to
funding its share of the project's construction costs
on an annual basis.
(c) Guidelines.--Within 1 year from the date of enactment of this
title, the Secretary shall develop, in consultation with the Friant
Division long-term contractors, proposed guidelines for the application
of the criteria defined in subsection (b), and will make the proposed
guidelines available for public comment. Such guidelines may consider
prioritizing the distribution of available funds to projects that
provide the broadest benefit within the affected area and the equitable
allocation of funds. Upon adoption of such guidelines, the Secretary
shall implement such assistance program, subject to the availability of
funds appropriated for such purpose.
(d) Cost Sharing.--The Federal financial assistance provided to local
agencies under subsection (a) shall not exceed--
(1) 50 percent of the costs associated with planning, design,
and environmental compliance activities associated with such a
project; and
(2) 50 percent of the costs associated with construction of
any such project.
(e) Project Ownership.--
(1) Title to, control over, and operation of, projects funded
under subsection (a) shall remain in one or more non-Federal
local agencies. Nothing in this title authorizes the Secretary
to operate a groundwater bank along or adjacent to the San
Joaquin River upstream of the confluence with the Merced River,
and any such groundwater bank shall be operated by a non-
Federal entity. All projects funded pursuant to this subsection
shall comply with all applicable Federal and State laws,
including provisions of California water law.
(2) All operation, maintenance, and replacement and
rehabilitation costs of such projects shall be the
responsibility of the local agency. The Secretary shall not
provide funding for any operation, maintenance, or replacement
and rehabilitation costs of projects funded under subsection
(a).
SEC. 303. AUTHORIZATION OF APPROPRIATIONS.
(a) The Secretary is authorized and directed to use monies from the
fund established under section 109 to carry out the provisions of
section 301(a)(1), in an amount not to exceed $35,000,000.
(b) In addition to the funds made available pursuant to subsection
(a), the Secretary is also authorized to expend such additional funds
from the fund established under section 109 to carry out the purposes
of section 301(a)(2), if such facilities have not already been
authorized and funded under the plan provided for pursuant to section
104(a)(4), in an amount not to exceed $17,000,000, provided that the
Secretary first determines that such expenditure will not conflict with
or delay his implementation of actions required by title I of this Act.
Notice of the Secretary's determination shall be published not later
than his submission of the report to Congress required by section
109(f)(2).
(c) In addition to funds made available in subsections (a) and (b),
there are authorized to be appropriated $50,000,000 (October 2008 price
levels) to carry out the purposes of this title which shall be non-
reimbursable.
PURPOSE OF THE MEASURE
The purpose of S. 27 is to authorize the implementation of
the San Joaquin River Restoration Settlement.
BACKGROUND AND NEED
S. 27 is intended to resolve a long-standing conflict on
the San Joaquin River in central California. The conflict stems
from the development of the Friant Division of the Bureau of
Reclamation's Central Valley Project, and the impacts such
development has had on the salmon fishery in the upper portion
of the river.
The Friant Division was constructed in the 1940s as a key
part of the Central Valley Project. Its facilities deliver
water to 28 entities (cities & water districts), with the
primary infrastructure being Friant Dam and Millerton Lake.
Other features include the Friant-Kern Canal which takes water
from Friant Dam to the Kern River in Bakersfield, California,
and the Madera Canal, which runs northwest to the Chowchilla
River. The Division now serves approximately 15,000 farms,
totaling about 1.04 million acres.
Historically, Friant Dam has been operated to minimize
downstream flows and maximize water deliveries through the
Canals. As a result, approximately 60 miles of the 153 river
miles between Friant Dam and the confluence of the Merced River
have been dried up in most years, except during flood control
releases. Prior to construction of Friant Dam, that portion of
the river downstream of the dam supported a salmon fishery
which the dam and its operations effectively eliminated.
In 1988, a coalition of environmental and fishing interests
sued the Bureau of Reclamation over its operation of the Friant
Division in U.S. District Court (Natural Resources Defense
Council, et al. v. Kirk Rodgers, et al.). One of the grounds
for the suit as later amended was that operation of Friant Dam
was in violation of California Fish & Game Code Section 5937, a
provision requiring dam operators to release sufficient water
to keep fish in good condition below the dam. On August 27,
2004, the court issued an order concluding that Reclamation
violated Section 5937 and scheduled a trial to determine the
remedy for that violation.
On September 13, 2006, the parties to the litigation
(Natural Resources Defense Council, Friant Water Users
Authority, and the United States) announced a settlement of the
18 year-old litigation which was approved by the court on
October 23, 2006. The settlement establishes fishery
restoration and water management goals that resolve issues
associated with operation of the Friant Division and the need
to reestablish a sustainable Chinook salmon population in the
San Joaquin River by providing for (a) substantial river
channel improvements; (b) water flows necessary to sustain a
salmon fishery; (c) reintroduction of Chinook salmon as an
experimental population pursuant to the Endangered Species Act
(ESA); and (d) water management planning to minimize settlement
impacts on existing water users.
Subsequently, third parties not involved in the
negotiations expressed concern about potential impacts the
settlement might have on their interests. The settling parties
negotiated additional provisions to address their concerns, and
those provisions were incorporated into the legislation. The
State of California is also supportive of the settlement,
having committed approximately $200 million in support of its
implementation. Federal legislation is needed to authorize the
full range of actions and resources necessary for the Federal
agencies to implement the terms of the settlement.
LEGISLATIVE HISTORY
S. 27 was introduced in the Senate on January 4, 2007 by
Senator Feinstein for herself and Senator Boxer, and referred
to the Committee on Energy and Natural Resources. The
Subcommittee on Water and Power held a hearing on S. 27 on May
3, 2007. (S. Hrg. 110-93.) At its business meeting on May 7,
2008, the Committee on Energy and Natural Resources ordered S.
27 favorably reported as amended.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTES
The Committee on Energy and Natural Resources, in open
business session on May 7, 2008, by voice vote of a quorum
present, recommends that the Senate pass S. 27, if amended as
described herein.
The rollcall vote on reporting the measure was 15 yeas, 7
nays, as follows:
YEAS NAYS
Mr. Bingaman Mr. Craig
Mr. Akaka\1\ Ms. Murkowski
Mr. Dorgan\1\ Mr. Burr\1\
Mr. Wyden\1\ Mr. DeMint
Mr. Johnson\1\ Mr. Barrasso
Ms. Landrieu Mr. Bunning\1\
Ms. Cantwell Mr. Martinez\1\
Mr. Salazar
Mr. Menendez
Mrs. Lincoln\1\
Mr. Sanders\1\
Mr. Tester
Mr. Domenici
Mr. Corker
Mr. Smith
\1\Indicates vote by proxy.
Mr. Sessions did not vote.
COMMITTEE AMENDMENT
During the consideration of S. 27, the Committee adopted a
substitute amendment to improve the bill. The first set of
changes are intended to reduce the bill's score as estimated by
the Congressional Budget Office, while still ensuring that
funding is available early in the settlement implementation
phase to meet the construction deadlines associated with the
settlement's restoration goals. The amendment deletes a
provision authorizing Friant (or other subdivisions of the
State) to use the Settlement revenue stream as collateral for a
bond or loan that would be used to fund construction and other
implementation activities. This provision would have had the
effect of making settlement funds available early, when they
are needed most, instead of being spread out over several
years. Funds expected to be available through this provision
are replaced by an alternative approach in the substitute
amendment. The new provision (Section 110) directs the
Secretary to negotiate new water supply contracts with the
Friant districts that will require repayment of Friant's
construction repayment obligation in a lump sum by 2011, or in
equal annual installments by 2014. The funds available through
an accelerated repayment are to be placed in the San Joaquin
River Restoration Fund and made available for implementation
activity. The Friant districts are provided other benefits in
Section 110 to help mitigate for the accelerated repayment.
The substitute amendment also adds two new titles to the
bill. The new Title II authorizes financial assistance to the
California Water Institute to develop a unified Integrated
Regional Water Management Plan for the counties and hydrologic
basins associated with the settlement. Title III addresses
water management improvements in the Friant Division.
Specifically, it enhances implementation of the Settlement's
Water Management Goal by authorizing the Secretary to make
improvements and build a recirculation project on the Friant-
Kern and Madera Canals and authorizing additional cost-shared
financial assistance to local groundwater projects that reduce,
avoid, or offset water losses in the Friant Division. Funding
is drawn in part from funds provided by the Settlement and in
part by a new authorization of appropriations.
SECTION-BY-SECTION ANALYSIS
Section 1 provides a table of contents for the Act.
Title I--San Joaquin River Restoration Settlement Act
Section 101 provides the short title for Title I of the
Act.
Section 102 provides the purpose of Title I of the Act.
Section 103 provides the definition of key terms used in
Title I.
Section 104(a) authorizes and directs the Secretary of the
Interior (Secretary) to implement the Settlement in cooperation
with the State of California and includes a list of prescribed
measures to be carried out.
Section 104(b) authorizes and directs the Secretary to
enter into appropriate agreements, including cost sharing
agreements, with the State of California, and a range of other
appropriate agreements with identified entities which contain
terms and conditions necessary to achieve the purposes of the
Settlement.
Section 104(c) authorizes the Secretary to accept and
expend non-Federal funds to facilitate Settlement
implementation.
Section 104(d) requires that prior to a range of
implementation actions, the Secretary identify impacts of those
actions and mitigation measures for downstream water users and
landowners.
Section 104(e) authorizes the Secretary to conduct design
and engineering studies necessary to implement the Settlement.
Section 104(f) provides that the Settlement and
reintroduction of Chinook Salmon as provided in the Act shall
not result in an involuntary reduction in certain contract
water allocations except as otherwise provided in Section 104.
Section 104(g) provides a disclaimer of Title I's impact on
specified rights and obligations.
Section 105(a) specifies that title to identified property
and facilities that are modified or improved as part of
Settlement implementation shall remain in the hands of the
present owner and not be transferred to the United States
unless acquired as authorized.
Section 105(b) authorizes the Secretary to acquire certain
interests in property under specified conditions to implement
the Settlement. The Secretary is also authorized to use
existing authority to carry out Sections 104 and 105.
Section 105(c) authorizes the Secretary to exercise
appropriate discretion and dispose of property and property
interests if no longer needed for settlement purposes. The
subsection also identifies certain rights of first refusal when
disposing of property, and specifies that any proceeds are to
be deposited into the San Joaquin River Restoration Fund.
Section 105(d) limits the Secretary's authority to operate
a groundwater bank in a specified area.
Section 106(a) directs the Secretaries of the Interior and
Commerce to comply with all applicable federal and state laws,
rules, and regulations in carrying out the measures authorized
by Title I.
Section 106(b) provides that nothing in Title I preempts
state law or modifies any existing obligation of the United
States under federal reclamation law to operate the Central
Valley Project in conformity with state law.
Section 106(c) authorizes the Secretary, in undertaking
Settlement implementation measures authorized in Section 104,
to provide funds made available under Title I to affected
federal, state, and local agencies, and Indian tribes if
necessary to enable such entities to effectively participate in
the environmental review process.
Section 106(d) provides that the United States' share of
the costs of implementing Title I is non-reimbursable provided
that this provision does not limit the use of the funds
assessed and collected pursuant to specified provisions of
Reclamation law for implementation of the Settlement. The
subsection also directs that the legislation shall not be
construed to limit or modify existing or future Central Valley
Project Ratesetting Policies.
Section 107 addresses how implementation of the Settlement
affects obligations of the Secretary contained in certain
specified provisions of Reclamation law.
Section 108(a) states that nothing in Title I confers upon
any person or entity not a party to the Settlement a private
right of action or claim for relief to interpret or enforce
this Act or the Settlement.
Section 108(b) clarifies that subsection (a) does not alter
or curtail any rights or claims under any other applicable law.
Section 109(a) provides that costs of implementing this
Settlement are to be shared among federal and non-federal
entities in the estimated amounts, and from the sources, shown.
The Secretary is also directed to enter into one or more
agreements, recognizing either monetary or in-kind
contributions, to fund or implement improvements on a project-
by-project basis with the State of California. Except as
provided in the Settlement, additional costs incurred solely to
implement the Settlement are to be incurred on a voluntary
basis.
Section 109(b) specifies that, in addition to the other
funds made available in the San Joaquin Restoration Fund
established in subsection (c), there are authorized to be
appropriated the identified amounts to implement Title I and
the Settlement to be available until expended under the
criteria set forth. The Secretary is also authorized to use
monies from the Central Valley Project Restoration Fund for the
purposes set forth in Title I, as specified.
Section 109(c) establishes a ``San Joaquin River
Restoration Fund'' in the Treasury to be used for the purpose
of implementing the Settlement except as otherwise provided in
Section 303. The sources of money to be deposited into the Fund
are identified.
Section 109(d) specifies that certain payments made by
long-term contractors who receive water from the Friant
Division and Hidden and Buchanan Units of the Central Valley
Project shall be the maximum of the settlement parties' direct
financial contribution to the Settlement, subject to paragraph
21 of the Settlement.
Section 109(e) provides that nothing in Title I requires a
federal official to expend federal funds not appropriated by
Congress or to seek the appropriation of additional funds for
Settlement implementation.
Section 109(f) provides that, prior to restoring any flows
other than Interim Flows in a specified section of the San
Joaquin River (reach 4B), the Secretary shall conduct a study
of the cost, impacts, and mitigation measures of restoring
certain levels of flow. The subsection also requires the
Secretary to file a report with Congress after making a
determination on restoring flows in that section of the
existing channel of the San Joaquin River which is to include
specific identified information. If the estimated federal cost
for increasing flow capacity in reach 4B exceeds remaining
federal funding authorized by this Act, then before commencing
construction, Congress must have increased the applicable
authorization ceiling as specified.
Section 110(a) authorizes and directs the Secretary to
convert, before December 31, 2010, certain listed existing
Friant division, Hidden Unit, and Buchanan Unit long-term
irrigation water service contracts to repayment contracts. The
Secretary is also authorized, but not required, to convert
other existing long-term water service contracts for irrigation
and municipal water deliveries to repayment contracts by the
same date. All such contracts must require the repayment of the
remaining amount of construction costs allocated to each
contractor no later than January 31, 2011, or by January 31,
2014, if payment is made in approximately equal annual
installments or if the contract is for municipal water. The
subsection also provides for payment of additional construction
or other capitalized costs properly assignable to such
contractor, makes clear that power revenues will not be
available to aid the contractors in fulfilling the repayment
obligations, specifies that the repayment contracts will
continue as long as the contractors pay applicable charges, and
specifies other terms.
Section 110(b) directs that payments made under subsection
(a) shall be adjusted as set forth following a final cost
allocation of the costs of the Central Valley Project.
Section 110(c) provides for specific application and non-
application of existing provisions of Reclamation law
notwithstanding certain continuing repayment obligations set
out in subsection 110(a). The contractor must continue to pay
all applicable operation and maintenance costs and other
charges as set forth.
Section 110(d) provides that beginning in 2020, the
Secretary shall reduce the charge mandated in Section 107(1) of
the Act for a specified time in recognition of financing costs
incurred by the districts in making the payments under
subsection 110(a). Other terms related to this reduction are
also specified.
Section 110(e) provides that upon the first release of
Interim Flows or Restoration Flows pursuant to the Settlement,
if certain conditions are met, any agreement by which one or
more long-term Friant water service or repayment contractor
(that has converted its contract) for the transfer or exchange
of water (other than water released as Interim Flows or
Restoration Flows) shall be deemed to comply with an identified
existing provision of Reclamation law. Subsection (e) also
establishes that any such water transferred or exchanged shall
not be counted as a replacement or offset under the Settlement
except as called for in a specific provision.
Section 110(f) provides that nothing in Section 110 shall
be construed to alter the repayment obligation of, or shift any
other costs to, other long term water contractors receiving
water from the Central Valley Project.
Section 110(g) states that Title I does not affect the
right of any Friant Division long-term contractor to use a
particular type of financing to make certain required payments.
Section 111(a) contains a Congressional finding as stated.
Section 111(b) directs that California Central Valley
Spring Run Chinook salmon be reintroduced in the San Joaquin
River below Friant Dam as an experimental population pursuant
to section 10(j) of the ESA and the Settlement under a
specified condition.
Section 111(c) directs the Secretary of Commerce to issue a
final rule pursuant to section 4(d) of the ESA governing the
incidental take of reintroduced Central Valley Spring Run
Chinook salmon prior to the reintroduction. The rule is to
include certain specified provisions but does not diminish the
applicability of identified provisions of existing law.
Section 111(d) provides that no later than December 31,
2024, the Secretary of Commerce is required to report to
Congress on the progress made on the reintroduction set forth
in this section and the Secretary's plans for further
implementation of the reintroduction.
Section 111(e) directs the Secretary of Commerce to
exercise his or her authority under Section 18 of the Federal
Power Act by reserving the right to file prescriptions in
proceedings for projects licensed by the Federal Energy
Regulatory Commission on identified rivers until a time
certain, but no later than December 31, 2025.
Section 111(f) provides that nothing modifies or
establishes a precedent with respect to any other application
of the ESA or Federal Power Act.
Title II--Study to develop water plan; report
Section 201(a) authorizes the Secretary to provide
financial assistance to the California Water Institute to
develop a unified Integrated Regional Water Management Plan
(Plan) which addresses specific issues within an identified
study area.
Section 201(b) describes how the Plan is to be used.
Section 201(c) requires the Secretary to develop a report
which contains the results of the Plan.
Section 201(d) authorizes appropriations to carry out
Section 201.
Title III--Friant division improvements
Section 301(a) directs the Secretary to conduct feasibility
studies on certain identified improvements and facilities.
Section 301(b) authorizes the Secretary to construct the
improvements and facilities identified in subsection (a)
consistent with the studies and in accordance with applicable
laws.
Section 301(c) declares that the costs of implementing the
Section 301 shall be nonreimbursable and consistent with
Section 303.
Section 302(a) authorizes the Secretary to provide
financial assistance to local agencies for costs associated
with developing local facilities to bank water underground or
to recharge groundwater, subject to certain criteria and
certain progress reports and accountings being provided.
Section 302(b) provides that such projects will be eligible
for financial assistance only to the extent projects meet a
number of specified conditions and criteria in the subsection.
Section 302(c) provides within one year of enactment of
Title III, the Secretary is to develop guidelines for
application of the criteria provided in subsection (b) and
thereafter shall implement the financial assistance program.
Section 302(d) requires that the Federal assistance
provided under subsection (a) shall not exceed 50 percent of
the cost associated with planning, design, environmental
compliance, and construction.
Section 302(e) provides that title to, control over and
operation of such funded projects shall remain in the non-
Federal local agency and that all operation, maintenance and
replacement and rehabilitation costs of such projects shall be
the responsibility of the local agency. The subsection also
states that nothing in Title III authorizes the Secretary to
operate a ground water bank as described.
Section 303(a) authorizes and directs the Secretary to use
up to $35,000,000 from the San Joaquin Restoration Fund
established to carry out projects under Section 301(a)(1).
Section 303(b) authorizes the Secretary to expend up to
$17,000,000 from the San Joaquin Restoration Fund to carry out
Section 301(a)(2) provided certain conditions are met.
Section 303(c) authorizes appropriations of $50,000,000
(October 2008 price levels) to carry out Title III on a
nonreimbursable basis.
It is expected by the Committee that the Secretary will
initiate actions to carry out the provisions of Title I and
Title III of the bill simultaneously and proceed with
implementation activity with equal diligence.
COST AND BUDGETARY CONSIDERATIONS
The Congressional Budget Office estimate of the costs of
this measure has been requested but was not received at the
time the report was filed. When the Congressional Budget Office
completes its cost estimate, it will be posted on the Internet
at www.cbo.gov.
REGULATORY IMPACT EVALUATION
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 27. The bill is not a regulatory measure in the
sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 27, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
In accordance with paragraph 4(b) of rule XLIV of the
Standing Rules of the Senate, the Committee provides the
following identification of congressionally directed spending
items contained in the bill, as reported:
------------------------------------------------------------------------
Section Provision Member
------------------------------------------------------------------------
109......................... Appropriations, Senators Feinstein
Settlement Fund. and Boxer.
201......................... Study to Develop Senators Feinstein
Water Plan; Report. and Boxer.
303......................... Authorization of Senators Feinstein
Appropriations. and Boxer.
------------------------------------------------------------------------
EXECUTIVE COMMUNICATIONS
The testimony provided by the Department of the Interior at
the subcommittee hearing on May 3, 2007 on S. 27 follows:
Statement of Mark Limbaugh, Assistant Secretary for Water and Science,
Department of the Interior
Mr. Chairman and members of the Subcommittee, I appreciate
the opportunity to appear before you today to discuss S. 27,
the San Joaquin River Restoration Settlement Act. S. 27
provides authorization and funding for the Secretary of the
Interior to implement the terms and conditions of the
Stipulation of Settlement (Settlement) dated September 13,
2006, in Natural Resources Defense Council, et al. v. Kirk
Rodgers, et al., which was approved by the U.S. District Court
on October 23, 2006. The Department supports S. 27.
During the eighteen years since this case was filed,
relations between stakeholders in the San Joaquin River basin,
including the State of California, Reclamation water users,
environmentalists, and Federal agencies, have often been
contentious. However, through the good faith efforts of the
``Settling Parties,'' namely Natural Resources Defense Council
(NRDC), Friant Water Users Authority (FWUA), and
representatives of the Bureau of Reclamation, Fish and Wildlife
Service, National Marine Fisheries Service, and the Department
of Justice for the United States, an opportunity has been
presented to resolve this litigation in a way that will both
restore the San Joaquin River and increase water supply
certainty to farmers in the Friant Division. My testimony today
will provide an overview of the Settlement and the importance
of this authorizing legislation.
brief background
The Bureau of Reclamation has water service contracts with
28 entities made up of cities and water districts of various
sorts that rely on the water supply from the Friant Division,
one of the key features of the Central Valley Project. Friant
Dam is located on the upper San Joaquin River, where it forms
Millerton Lake, and became fully operational in the late 1940s.
Our understanding is that about 15,000 farms rely on Friant
water supplies.
Except for flood-control operations, Friant Dam/Millerton
Lake is operated to meet minimum downstream flow requirements
and maximize water deliveries. As a result, approximately 60
miles of the 153 river miles between Friant Dam and the
confluence of the Merced River have been dried up in most
years, except during seasonal flood control releases. Prior to
construction of Friant Dam, the stretch of river downstream of
the dam supported a healthy fishery, including salmon runs,
which the dam effectively eliminated.
In 1988, a coalition of environmental groups led by NRDC
filed suit challenging the federal defendants' compliance with
the National Environmental Policy Act (NEPA) and the Endangered
Species Act (ESA) in connection with the renewal of the long-
term water service contracts between the United States and the
Central Valley Project, Friant Division contractors. Most of
the Friant Division long-term contractors intervened as
additional defendants.
Through amended complaints, the plaintiffs subsequently
included a claim asserting that pursuant to Sec. 8 of the
Reclamation Act of 1902, the federal defendants must operate
Friant Dam in accordance with California Fish and Game Code
Sec. 5937. California Fish and Game Code Sec. 5937 requires the
owner or operator of any dam in California to allow sufficient
water to flow through or around the dam in order to keep the
downstream fishery in ``good condition.'' During the initial
phase of the litigation, the District Court ruled that the
contracts were not entered into in violation of NEPA
requirements, but held that approval of the renewal contracts
violated procedural requirements of the ESA. The District Court
did not rule on the Sec. 5937 claim. On June 24, 1998, the
Ninth Circuit Court of Appeals affirmed most of the District
Court's rulings but remanded to the District Court the issue of
the applicability of California Fish and Game Code Sec. 5937 to
the operation of Friant Dam.
From 1998 to 2003, without direct involvement by Federal
defendants, FWUA and NRDC attempted to settle the remanded
issue. In 2003, those discussions were terminated, and on July
19, 2003, the plaintiffs amended their complaint by adding the
Secretary of Commerce and the National Marine Fisheries Service
as additional defendants and adding claims asserting that the
long-term renewal contracts do not conform to the requirements
of the Central Valley Project Improvement Act (CVPIA). In an
Order issued on August 27, 2004, Judge Karlton concluded that
Reclamation violated California Fish and Game Code Sec. 5937,
and scheduled a trial on the issue of remedy for that
violation.
During the summer of 2005, at the request of Subcommittee
Chairman George Radanovich and Senator Dianne Feinstein, FWUA
and NRDC reinitiated settlement discussions. In November 2005,
the Federal government was invited into those discussions, and
in spring 2006, the State of California was also approached
about the negotiations since the negotiators foresaw that the
State would have a significant role in the implementation of
any settlement. On September 13, 2006, the Settling Parties
filed the Settlement, including proposed Federal implementing
legislation, with the Court. The Settlement Agreement is based
on two goals and objectives:
1. To restore and maintain fish populations in ``good
condition'' in the main stem of the San Joaquin River below
Friant Dam to the confluence of the Merced River, including
naturally reproducing and self-sustaining populations of salmon
and other fish.
2. To reduce or avoid adverse water supply impacts to all
of the Friant Division long-term contractors that may result
from the Interim Flows and Restoration Flows provided for in
the Settlement.
restoration goal
The Settling Parties have carefully studied San Joaquin
River restoration for many years and as part of the Settlement
have identified the actions and highest priority projects
necessary to achieve the restoration goal. These include among
others: expanding channel capacity, improving levees, and
making modifications necessary to provide fish passage through
or around certain structures in the river channel. Also called
for are year-round flows in the San Joaquin River, including
those areas that have been without continuous flows for
decades. This action would be taken to restore and maintain
fish populations in good condition, including naturally
reproducing and self-sustaining populations of Chinook salmon
and other fish in the 153-mile stretch of the river between
Friant Dam and the confluence of the Merced River.
water management goal
Recognizing that the Settlement's Restoration Flows will
reduce the amount of water available for diversion at Friant
Dam, the Settlement also includes provisions to protect water
availability for the 15,000 farms that currently rely on these
supplies. One million acres of some of the most productive
farmland in the country as well as many towns and cities along
the southern San Joaquin Valley's East Side receive all or a
major portion of their water supplies from the Friant Division.
The Settlement recognizes the importance of this water to those
farms and calls for development of water management solutions
to provide these users water supply certainty for the long
term. Such a program would include a Recovered Water Account to
make surplus water available at a reduced rate to farmers who
have contributed water to the Restoration Flows and a flexible
combination of recirculation, recapture, reuse, exchange and/or
transfer programs. Additional groundwater banking may also be
explored.
phased approach
Restoring continuous flows to the approximately 60 miles of
dry river will take place in a phased manner. Planning, design
work, and environmental reviews will begin immediately, and
interim flows for experimental purposes will start in 2009. The
flows will be increased gradually over the next several years,
with the goal of reintroducing salmon by December 31, 2012.
The flow regime called for in the Settlement continues
unchanged until 2026, with the U.S. District Court retaining
jurisdiction to resolve disputes arising under the Settlement.
After December 31st, 2025 the court, in conjunction with
the California State Water Resources Control Board, could
consider any requests by the parties for changes to the
Restoration Flows.
importance of legislation
As the implementation of this historic Settlement begins, I
can't emphasize enough how important it is for Federal
authorizing legislation to be approved and signed into law.
Passing this legislation soon will demonstrate the kind of
support and commitment from the Federal government that is
necessary to prove we are serious about making this settlement
and its twin goals a reality. Some initial funding and
authority exists for Interior agencies to work with our State
partners to initiate planning and environmental review
activities, which we have already begun to do. Without
authorizing legislation such as S. 27, however, we lack
sufficient authority to implement the actions in the
Settlement. Moreover, beginning in fiscal year 2008 we will
have insufficient funding to stay on the aggressive schedule
called for in the Settlement to complete the necessary planning
and environmental reviews for initiating construction
activities and ultimately restoring flows into the San Joaquin
River from Friant Dam. Such delays would send the wrong message
regarding the Federal support for implementation.
restoration funding
The proposed legislation is consistent with the
recommendation in the Settlement regarding funding sources to
support implementation of these projects, including the use of
current payments from farmers and cities served by Friant Dam,
redirection of Federal funds from the Reclamation Fund, state
bond initiatives, and authorization for additional Federal
appropriations as long as there is a non-Federal cost share.
Funds are to be used to meet both the Water Management and
Restoration goals.
More specifically, the proposed legislation, consistent
with the Settlement, allows for the continuation of and the
dedication of the ``Friant Surcharge,'' an environmental fee
charged pursuant to the Central Valley Project Improvement Act
(CVPIA) of $7 per acre foot of water delivered to Friant
Contractors. This fee is expected to average about $8 million
per year ($160 million over the 20-year period). Up to $2
million annually of other CVPIA Restoration Fund payments made
by Friant water users under the CVPIA ($40 million over the 20-
year period) would also be directed for implementation of the
Settlement.
The legislation also calls for the dedication of the
capital component of water rates paid by Friant Division water
users to the Settlement implementation (approximately $220-240
million over the 20-year period). These are funds that at
present go to the Reclamation Fund in the U.S. Treasury to
repay the capital costs of construction in the Friant Division.
Under this bill, these funds would be deposited into a newly
established San Joaquin River Restoration Fund to pay directly
for implementing the Settlement. The Settlement provides that
the monies contributed to the Settlement from the Friant
Surcharge and capital repayment obligation may be used to fund
bonds, guaranteed loans or other finance instruments issued by
agencies or subdivisions of the State of California.
In addition, the legislation authorizes up to $250 million
of additional Federal appropriations to contribute to the
implementation and requires a non-federal cost-share of an
equivalent amount.
Funding by the State of California will also support the
Settlement. Last November, State propositions 84 and 1e were
passed by the California voters and should provide about $200
million of State bond funds for projects that will directly
contribute to the restoration efforts.
Although the Settling Parties have agreed on a suite of
actions to be taken to restore flows and salmon runs, the total
cost and the specificity of those actions still contain
significant uncertainty. The Parties anticipate that a multi-
agency technical team established to implement the Settlement
would develop additional design details typically found in a
Feasibility-level study needed to take the proposed actions.
The Parties also anticipate that the estimated costs projected
to be required to meet the restoration goal (i.e. $250 million-
$800 million) would be further refined during the initial phase
of implementation.
This uncertainty in project costs has been a source of
concern to both the Administration and the State of California.
As project partners, we realize that the Federal appropriations
proposed in this legislation, in addition to the funding
sources already described, may be integral to implementing the
settlement. However, the Administration is not willing to
commit to seeking any particular level of funding until further
planning and engineering studies are completed that identify
with more certainty the total estimated cost of this Program.
All the parties to the Settlement must also realize that
implementation of this settlement, including this authorizing
legislation, does not imply a limitless Federal commitment to
fund whatever it costs.
status of implementation
As already mentioned, some initial funding and authority
exists for Interior to work with our State partners to initiate
planning and environmental review activities, and we have been
doing just that. Interior, through Reclamation and the Fish and
Wildlife Service, is working with the other Settling Parties,
the State of California, the affected Third Parties (discussed
below), and other Federal agencies regarding the implementation
process and other related matters. A multi-agency Program
Management Team including California Dept. of Water Resources,
California Dept. of Fish and Game, and U.S. Fish and Wildlife
Service, National Marine Fisheries Service, and Reclamation
have begun efforts to initiate an implementation process,
including public outreach, planning, design, and environmental
reviews. This multi-agency team is developing a Program
Management Plan (PMP), scheduled for completion this Spring,
that will describe the implementation process, the scope and
timeline of the activities, studies to be completed, and the
process to involve and receive input from interested third
parties as well as the broader public. The PMP will address
strategies to meet both the Restoration Goal and the Water
Management Goal described in the Settlement. As a further
demonstration of the Administration's commitment to
implementing this settlement, the President's FY 2008 Budget
for Reclamation presumes a redirection of capital repayment
receipts away from the Reclamation Fund and into the newly-
created San Joaquin Restoration Fund; it also presumes the
allocation $7.5 million of funds from the CVPIA Restoration
Fund to the San Joaquin Restoration Fund. However, these
actions in the Budget presume enactment of the legislation.
third parties
We fully recognize and appreciate the importance of
involving affected third parties in the implementation of the
Settlement, and several steps have been taken to meaningfully
involve them in the development and implementation of the
Settlement. Prior to the execution of the settlement documents,
copies of the draft documents were made available in
Sacramento, Fresno, and San Francisco for review by interested
third parties, subject to confidentiality agreements.
Representatives of water users on the west side of the Central
Valley; water users from tributaries to the San Joaquin River
downstream of Friant Dam; the Exchange Contractors, who receive
water from the Delta in lieu of water they would otherwise
divert from the San Joaquin River below Friant Dam; and other
parties concerned about river management issues (collectively,
``Third Parties'') took the opportunity to review the
Settlement documents. In addition, the Settling Parties
conducted numerous briefings throughout the Central Valley,
which were attended by approximately 70 Third Party
representatives. At those briefings, the Settling Parties
reviewed the proposed Settlement in detail, responded to
questions, and listened to comments. Following those briefings,
a number of entities submitted written comments on the
Settlement documents. Their primary areas of concern were
related to the ESA take provisions, operation & maintenance,
funding, meaningful participation in implementation of the
program, and water rights. After consideration of comments from
Third Parties, the Settling Parties made modifications deemed
appropriate to some of the settlement documents and further
provided the Third Parties with a comprehensive written
response to their written comments. In addition, language was
added to the legislation before it was introduced to strengthen
protections for Third Party interests.
Since the Settlement was signed and the legislation was
drafted, the Bureau of Reclamation has been working closely
with a group of Third Parties with downstream concerns on a
Memorandum of Understanding (MOU), which was reviewed by the
Settling Parties and was signed on February 26, 2007 by
Reclamation and the Third Parties involved.
The MOU articulates the interests of these Third Parties
and agrees that Reclamation will work closely and involve the
Third Parties throughout the implementation of the Settlement
on matters pertaining to their interests.
In supporting this settlement, the Administration remains
committed to implementing other salmon restoration programs
along the Pacific coast. The San Joaquin settlement that would
be implemented by S. 27 provides a model of how stakeholders
can come together to rebuild historic salmon populations and
restore communities. We are open to exploring how this model
could be used to help implement other similar restoration
programs.
conclusion
This monumental agreement ends an 18-year legal dispute
over the operation of Friant Dam and provides increased
certainty to Friant Division farmers who rely on CVP water
deliveries while returning flows and salmon runs back to the
San Joaquin River. S. 27 would provide the federal
authorization and funding needed to move into implementation.
We believe that this historic agreement is the start of a truly
collaborative process that will result in a restored river for
all. I strongly recommend that this committee act swiftly on
this legislation to allow the Federal government to move
forward without delay and to send a message of support to the
Parties and our implementing partners.
Mr. Chairman, this concludes my testimony. I would like to
reiterate my appreciation to the subcommittee for your interest
in this settlement. I would be happy to answer any questions at
this time.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill S. 27, as ordered
reported.