[Senate Report 115-359]
[From the U.S. Government Publishing Office]
Calendar No. 646
115th Congress } { Report
SENATE
2d Session } { 115-359
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CONTRA COSTA CANAL TRANSFER ACT
_______
November 14, 2018.--Ordered to be printed
_______
Ms. Murkowski, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 3001]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 3001) to authorize the Secretary of the
Interior to convey certain land and facilities of the Central
Valley Project, having considered the same, reports favorably
thereon with an amendment in the nature of a substitute and
recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Contra Costa Canal Transfer Act''.
SEC. 2. DEFINITIONS.
In this Act:
(1) Acquired land.--The term ``acquired land'' means land in
Federal ownership and land over which the Federal Government
holds an interest for the purpose of the construction and
operation of the Contra Costa Canal, including land under the
jurisdiction of--
(A) the Bureau of Reclamation;
(B) the Western Area Power Administration; and
(C) the Department of Defense in the case of the
Clayton Canal diversion traversing the Concord Naval
Weapons Station.
(2) Contra costa canal agreement.--The term ``Contra Costa
Canal Agreement'' means an agreement between the District and
the Bureau of Reclamation to determine the legal,
institutional, and financial terms surrounding the transfer of
the Contra Costa Canal, including but not limited to
compensation to the reclamation fund established by the first
section of the Act of June 17, 1902 (32 Stat. 388, chapter
1093), equal to the net present value of miscellaneous revenues
that the United States would otherwise derive over the 10 years
following enactment of this Act from the eligible lands and
facilities to be transferred, as governed by reclamation law
and policy and the contracts.
(3) Contra costa canal.--
(A) In general.--The term ``Contra Costa Canal''
means the Contra Costa Canal Unit of the Central Valley
Project, which exclusively serves the Contra Costa
Water District in an urban area of Contra Costa County,
California.
(B) Inclusions.--The term ``Contra Costa Canal''
includes pipelines, conduits, pumping plants,
aqueducts, laterals, water storage and regulatory
facilities, electric substations, related works and
improvements, and all interests in land associated with
the Contra Costa Canal Unit of the Central Valley
Project in existence on the date of enactment of this
Act.
(C) Exclusion.--The term ``Contra Costa Canal'' does
not include the Rock Slough fish screen facility.
(4) Contracts.--The term ``contracts''' means the existing
water service contract between the District and the United
States, Contract No. 175r-3401A-LTR1 (2005), Contract No. 14-
06-200-6072A (1972, as amended), and any other contract or land
permit involving the United States, the District, and Contra
Costa Canal.
(5) District.--The term ``District'' means the Contra Costa
Water District, a political subdivision of the State of
California.
(6) Rock slough fish screen facility.--
(A) In general.--The term ``Rock Slough fish screen
facility'' means the fish screen facility at the Rock
Slough intake to the Contra Costa Canal.
(B) Inclusions.--The term ``Rock Slough fish screen
facility'' includes the screen structure, rake cleaning
system, and accessory structures integral to the screen
function of the Rock Slough fish screen facility, as
required under the Central Valley Project Improvement
Act (Public Law 102-575; 106 Stat. 4706).
(7) Rock slough fish screen facility title transfer
agreement.--The term ``Rock Slough fish screen facility title
transfer agreement'' means an agreement between the District
and the Bureau of Reclamation to--
(A) determine the legal, institutional, and financial
terms surrounding the transfer of the Rock Slough fish
screen facility; and
(B) ensure the continued safe and reliable operations
of the Rock Slough fish screen facility.
(8) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
SEC. 3. CONVEYANCE OF LAND AND FACILITIES.
(a) In General.--Not later than 180 days after the date of
enactment of this Act, in consideration for the District assuming from
the United States all liability for the administration, operation,
maintenance, and replacement of the Contra Costa Canal, consistent with
the terms and conditions set forth in the Contra Costa Canal Agreement
and subject to valid existing rights and existing recreation agreements
between the Bureau of Reclamation and the East Bay Regional Park
District for Contra Loma Regional Park and other local agencies within
the Contra Costa Canal, the Secretary shall offer to convey and assign
to the District--
(1) all right, title, and interest of the United States in
and to--
(A) the Contra Costa Canal; and
(B) the acquired land; and
(2) all interests reserved and developed as of the date of
enactment of this Act for the Contra Costa Canal in the
acquired land, including existing recreation agreements between
the Bureau of Reclamation and the East Bay Regional Park
District for Contra Loma Regional Park and other local agencies
within the Contra Costa Canal.
(b) Rock Slough Fish Screen Facility.--
(1) In general.--The Secretary shall convey and assign to the
District all right, title, and interest of the United States in
and to the Rock Slough fish screen facility pursuant to the
Rock Slough fish screen facility title transfer agreement.
(2) Cooperation.--No later than 180 days after the conveyance
of the Contra Costa Canal, the Secretary and the District shall
enter into good faith negotiations to accomplish the conveyance
and assignment under paragraph (1).
(c) Payment of Costs.--The District shall pay to the Secretary any
administrative and real estate transfer costs incurred by the Secretary
in carrying out the conveyances and assignments under subsections (a)
and (b), including the cost of any boundary survey, title search,
cadastral survey, appraisal, and other real estate transaction required
for the conveyances and assignments.
(d) Compliance With Environmental Laws.--
(1) In general.--Before carrying out the conveyances and
assignments under subsections (a) and (b), the Secretary shall
comply with all applicable requirements under--
(A) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.);
(B) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.); and
(C) any other law applicable to the Contra Costa
Canal or the acquired land.
(2) Effect.--Nothing in this Act modifies or alters any
obligations under--
(A) the National Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.); or
(B) the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.).
SEC. 4. RELATIONSHIP TO EXISTING CENTRAL VALLEY PROJECT CONTRACTS.
(a) In General.--Nothing in this Act affects--
(1) the application of the reclamation laws to water
delivered to the District pursuant to any contract with the
Secretary; or
(2) subject to subsection (b), the contracts.
(b) Amendments to Contracts.--The Secretary and the District may
modify the contracts as necessary to comply with this Act.
(c) Liability.--
(1) In general.--Except as provided in paragraph (2), the
United States shall not be liable for damages arising out of
any act, omission, or occurrence relating to the Contra Costa
Canal or the acquired land.
(2) Exception.--The United States shall continue to be liable
for damages caused by acts of negligence committed by the
United States or by any employee or agent of the United States
before the date of the conveyance and assignment under section
3(a), consistent with chapter 171 of title 28, United States
Code (commonly known as the ``Federal Tort Claims Act'').
(3) Limitation.--Nothing in this Act increases the liability
of the United States beyond the liability provided under
chapter 171 of title 28, United States Code.
SEC. 5. REPORT.
If the conveyance and assignment authorized by section 3(a) is not
completed by the date that is 1 year after the date of enactment of
this Act, the Secretary shall submit to Congress a report that--
(1) describes the status of the conveyance and assignment;
(2) describes any obstacles to completing the conveyance and
assignment; and
(3) specifies an anticipated date for completion of the
conveyance and assignment.
PURPOSE
The purpose of S. 3001 is to authorize the Secretary of the
Interior (Secretary) to convey certain lands and facilities of
the Central Valley Project.
BACKGROUND AND NEED
The Contra Costa Canal System in California, which includes
the Rock Slough intake channel, Main Canal, Loop Canal,
Shortcut Pipeline, the Clayton and Ygnacio Re-lift Canals and
pumping plants, and the Martinez Reservoir and pumping plants,
was authorized in 1937 through the Rivers and Harbors Act of
1937 (Public Law 75-392). Construction was completed in 1948,
and additional features were finished in 1967.
The Contra Costa Water District (CCWD) has operated and
maintained these facilities since 1972 under agreement with the
Bureau of Reclamation (BOR), and in 2010 repaid its contract
for the cost of construction in full. The repayment contract
states that at completion of repayment, title to the facilities
is to be transferred to CCWD, following authorization by
Congress.
With repayment for these facilities complete, CCWD has
asked for authorization to receive title of the Contra Costa
Canal System as provided in its contract with BOR. Conveying
title to CCWD will facilitate a planned $650 million project to
convert the open main canal to closed pipe in order to increase
public safety and water conservation, and to provide needed
upgrades to the main canal and other system components.
LEGISLATIVE HISTORY
Senator Feinstein introduced S. 3001 on June 6, 2018. The
Subcommittee on Water and Power held a hearing on S. 3001 on
June 13, 2018.
Representative DeSaulnier introduced H.R. 6040, companion
legislation, in the House of Representatives on June 7, 2018.
The Natural Resources Committee's Subcommittee on Water, Power
and Oceans held a hearing on H.R. 6040 on July 11, 2018, and it
was favorably reported, as amended, by the Natural Resources
Committee on August 31, 2018. H.R. 6040 passed the House of
Representatives by voice vote on September 12, 2018.
The Senate Committee on Energy and Natural Resources met in
an open business session on October 2, 2018, and ordered S.
3001 favorably reported, as amended.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in
open business session on October 2, 2018, by a majority voice
vote of a quorum present recommends that the Senate pass S.
3001, if amended as described herein.
COMMITTEE AMENDMENT
During its consideration of S. 3001, the Committee adopted
an amendment in the nature of a substitute. The substitute
amendment modified the definition of ``Contra Costa Canal
Agreement'' to require the CCWD to provide compensation for
miscellaneous revenues BOR will no longer receive. The
substitute amendment also made a number of technical and
conforming changes and is further described in the section-by-
section analysis.
SECTION-BY-SECTION ANALYSIS
Sec. 1. Short title
This section states the short title.
Sec. 2. Definitions
Section 2 defines key terms.
Sec. 3. Conveyance of land and facilities
Subsection (a) directs BOR to convey all right, title and
interest of the United States in the Contra Costa Canal and the
acquired land, as well as all interest in the acquired land to
date, to CCWD within 180 days of the Act's enactment. As
consideration for the conveyance, CCWD must assume all
liability for the administration, operation, maintenance, and
replacement of the Contra Costa Canal, in accordance with
applicable agreements and valid existing rights.
Subsection (b) directs the Secretary to convey the Rock
Slough fish screen facility to the CCWD pursuant to that
facility's title transfer agreement. This subsection also
directs the Secretary and CCWD to enter into negotiations to
accomplish the fish screen facility conveyance within 180 days
of the Contra Costa Canal conveyance.
Subsection (c) requires the CCWD to pay any conveyance-
related administrative and real estate transfer costs to the
Secretary.
Subsection (d) requires the Secretary to comply with
applicable environmental laws prior to conveyance.
Sec. 4. Relationship to existing central valley project contracts
Section 4 states that nothing in the Act affects the
application of reclamation laws to water delivered to CCWD and
authorizes the modification of existing contracts to comply
with the Act. This section further shields the United States
from liability related to the conveyed property after the date
of conveyance.
Sec. 5. Report
Section 5 requires the Secretary to submit an explanatory
report to Congress if the conveyance and assignment of the
Contra Costa Canal is not completed within one year after the
Act's enactment.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of the costs of this measure has
been provided by the Congressional Budget Office: S. 3001 would
authorize the Bureau of Reclamation (BOR), the Western Area
Power Administration, and the Department of Defense to transfer
the Contra Costa Canal, the Rock Slough Fish Screen, and the
associated federal land and facilities to the Contra Costa
County Water District located in California.
Under the bill, BOR would modify the Rock Slough Fish
Screen to ensure the screen is operating safely before
transferring it. Using information from BOR, CBO estimates that
the federal share of the costs to complete that work would be
$2 million, subject to the availability of appropriated funds.
Under current law, the federal government collects leasing
and grazing fees of about $80,000 per year from the property
that would be transferred under S. 3001. Those amounts are
recorded in the federal budget as offsetting receipts, or
reductions in direct spending. Under the bill, to compensate
the federal government for those lost receipts, the district
would pay the federal government an amount equal to the net
present value of 10 years of receipts (discounted using the 10-
year Treasury rate). CBO estimates that the district would pay
the federal government $750,000 in the next few years and that
the net effect on direct spending over the 2019-2028 period
would be negligible.
Because enacting S. 3001 would affect direct spending, pay-
as-you-go procedures apply. Enacting S. 3001 would not affect
revenues.
CBO estimates that enacting S. 3001 would not significantly
increase net direct spending or on-budget deficits in any of
the four consecutive 10-year periods beginning in 2029.
S. 3001 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On August 29, 2018, CBO transmitted a cost estimate for
H.R. 6040, the Contra Costa Canal Transfer Act, as ordered
reported by the House Committee on Natural Resources on July
18, 2018. The two pieces of legislation are similar and CBO's
estimates of their budgetary effects are the same.
The CBO staff contact for this estimate is Aurora Swanson.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
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. 3001. 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. 3001, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 3001, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimony provided by the Department of the Interior at
the July 13, 2018, hearing on S. 3001 follows:
Statement of Timothy R. Petty, Ph.D., Assistant Secretary for Water and
Science, U.S. Department of the Interior
Chairman Flake, Ranking Member Cortez Masto and members of
the Subcommittee, I am Dr. Tim Petty, the Assistant Secretary
for Water and Science at the Department of the Interior
(Department). Thank you for the opportunity to provide the
views of the Department on S. 3001, the Contra Costa Canal
Title Transfer Act.
S. 3001 directs the Department to offer to transfer and
convey to the Contra Costa County Water District (District) all
right, title, and interest of the United States in and to the
Contra Costa Canal (Canal) within 180 days of enactment of this
Act. The Canal, as defined in S. 3001, includes the entirety of
the Contra Costa Canal Unit of the Central Valley Project
(CVP), including pipelines, conduits, pumping plants,
aqueducts, laterals, water storage and regulatory facilities,
electric substations, related works, and improvements and all
interests in land associated within the unit, not including the
Rock Slough fish screen facility. The lands under consideration
to be transferred are currently under the jurisdiction of the
Bureau of Reclamation, the Western Area Power Administration,
and the Department of Defense. The District has been
effectively operating and maintain these facilities. The title
transfer of the Canal will maintain this arrangement into the
future.
The Department recognizes that the District is a longtime
CVP contractor, and that even with enactment of S. 3001, the
District would continue to pay their share of CVP operations
and maintenance and repayment through their water service
rates.
If the conveyance has not been completed within 12 months,
Interior is required to submit Congress an explanation and the
date by which the conveyance will be completed.
The Department has an active title transfer program and
supports transferring certain Reclamation project facilities to
non-Federal entities, particularly in cases where transfers
could create opportunities, not just for those who receive
title, but for other stakeholders and the public as well.
Specifically, a streamlined title transfer process for
uncomplicated transfers creates incentives for non-Federal
entities to closely engage with Reclamation to complete the
process and allow for appropriate transfers to take place
without legislation. This approach is reflected in the
Administration's Title Transfer legislative proposal,
transmitted to Congress in February of this year.
Mr. Chairman, it is important to note that in most cases,
Reclamation and the entity interested in taking title must
complete environmental compliance activities and negotiate the
terms and conditions of the transfer before pursuing
legislation. Reclamation has been working with the District
closely on this effort and will continue to do so. However,
this legislation, as currently drafted would authorize the
transfer before those steps are completed.
Instead, we recommend that the conveyance be completed
pursuant to a title transfer agreement developed between the
Department and the District, in consultation with other
stakeholders, including the East Bay Regional Park District,
the City of Antioch and the City of Walnut Creek. This will
enable Reclamation, the District and the other stakeholders to
work through the upfront activities necessary to complete a
title transfer. We have had situations in previous transfers
where additional legislation was required because the terms and
conditions were dictated exclusively in the legislation and
there was no flexibility to address unanticipated problems on
this matter.
Further, it is important that the legislation protect the
financial interests of the taxpayers. While the District has
completed its repayment obligation for its share of
construction costs of the Canal, we need to account for
revenues from other contracts, leases and agreements that
currently come to the United States, but would transfer to the
District under this Act. We recommend that the legislation
acknowledge this requirement.
We would be pleased to work with the Committee, the
sponsors and the District on legislative language to reflect
these necessary modifications. In the meantime, we recommend
that Reclamation and the District complete a valuation analysis
to ensure that the financial interests of the United States are
protected and that the results be reflected in the title
transfer agreement that is referenced in the legislation.
Mr. Chairman, Reclamation has been working closely with the
District on this issue and we look forward to continuing that
progress. We believe that if structured properly, the transfer
of these facilities will improve the efficiency and
effectiveness of the Canal's operations by getting control of
the lands and facilities into the hands of those who best
understand the needs of the community.
With these modifications, the Department is pleased to
support this legislation. This completes my statement, I am
happy to answer questions at the appropriate 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 as ordered
reported.