HR 1837
2-29-12, House Passed Bill 246-175-1
Union Calendar No. 280
112th CONGRESS
2d Session
H. R. 1837
[Report No. 112-403]
To address certain water-related concerns on the San Joaquin River,
and for other purposes.
IN THE HOUSE OF REPRESENTATIVES
May 11, 2011
Mr. NUNES (for himself, Mr. MCCARTHY of California, and Mr. DENHAM) introduced
the following bill; which was referred to the Committee on Natural Resources
February 27, 2012
Reported with an amendment, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in
italic]
[For text of introduced bill, see copy of bill as introduced on May 11,
2011]
A BILL
To address certain water-related concerns on the San Joaquin River,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Sacramento-San Joaquin Valley Water Reliability
Act'.
SEC. 2. TABLE OF CONTENTS.
Sec. 2. Table of contents.
TITLE I--CENTRAL VALLEY PROJECT WATER RELIABILITY
Sec. 101. Amendment to purposes.
Sec. 102. Amendment to definition.
Sec. 104. Water transfers, improved water management, and conservation.
Sec. 105. Fish, wildlife, and habitat restoration.
Sec. 106. Restoration fund.
Sec. 107. Additional authorities.
Sec. 108. Bay-Delta Accord.
Sec. 109. Natural and artificially spawned species.
Sec. 110. Authorized service area.
Sec. 111. Regulatory streamlining.
TITLE II--SAN JOAQUIN RIVER RESTORATION
Sec. 201. Repeal of the San Joaquin River settlement.
Sec. 204. Implementation of restoration.
Sec. 205. Disposal of property; title to facilities.
Sec. 206. Compliance with applicable law.
Sec. 207. Compliance with Central Valley Project Improvement Act.
Sec. 208. No private right of action.
Sec. 209. Implementation.
Sec. 210. Repayment contracts and acceleration of repayment of construction
costs.
Sec. 212. Water supply mitigation.
Sec. 213. Additional Authorities.
TITLE III--REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF CONSTRUCTION
COSTS
Sec. 301. Repayment contracts and acceleration of repayment of construction
costs.
TITLE IV--BAY-DELTA WATERSHED WATER RIGHTS PRESERVATION AND PROTECTION
Sec. 401. Water rights and area-of-origin protections.
Sec. 402. Sacramento River settlement contracts.
Sec. 403. Sacramento River Watershed Water Service Contractors.
Sec. 404. No redirected adverse impacts.
TITLE V--MISCELLANOUS
TITLE I--CENTRAL VALLEY PROJECT WATER RELIABILITY
SEC. 101. AMENDMENT TO PURPOSES.
Section 3402 of the Central Valley Project Improvement Act (106 Stat.
4706) is amended--
(1) in subsection (f), by striking the period at the end; and
(2) by adding at the end the following:
`(g) to ensure that water dedicated to fish and wildlife purposes by
this title is replaced and provided to Central Valley Project water contractors
by December 31, 2016, at the lowest cost reasonably achievable; and
`(h) to facilitate and expedite water transfers in accordance with this
Act.'.
SEC. 102. AMENDMENT TO DEFINITION.
Section 3403 of the Central Valley Project Improvement Act (106 Stat.
4707) is amended--
(1) by amending subsection (a) to read as follows:
`(a) the term `anadromous fish' means those native stocks of salmon (including
steelhead) and sturgeon that, as of October 30, 1992, were present in the
Sacramento and San Joaquin Rivers and their tributaries and ascend those rivers
and their tributaries to reproduce after maturing in San Francisco Bay or
the Pacific Ocean;';
(2) in subsection (l), by striking `and,'
(3) in subsection (m), by striking the period and inserting `; and',
and
(4) by adding at the end the following:
`(n) the term `reasonable flows' means water flows capable of being maintained
taking into account competing consumptive uses of water and economic, environmental,
and social factors.'.
SEC. 103. CONTRACTS.
Section 3404 of the Central Valley Project Improvement Act (106 Stat.
4708) is amended--
(1) in the heading, by striking `limitation on contracting and contracts
reform' and inserting `contracts'; and
(2) by striking the language of the section and by adding:
`(a) Renewal of Existing Long-Term Contracts- Upon request of the contractor,
the Secretary shall renew any existing long-term repayment or water service
contract that provides for the delivery of water from the Central Valley Project
for a period of 40 years, and renew such contracts for successive periods
of 40 years each.
`(b) Delivery Charge- Beginning on the date of the enactment of this
Act, a contract entered into or renewed pursuant to this section shall include
a provision that requires the Secretary to charge the other party to such
contract only for water actually delivered by the Secretary.'.
SEC. 104. WATER TRANSFERS, IMPROVED WATER MANAGEMENT, AND CONSERVATION.
Section 3405 of the Central Valley Project Improvement Act (106 Stat.
4709) is amended as follows:
(A) by inserting before `Except as provided herein' the following:
`The Secretary shall take all necessary actions to facilitate and expedite
transfers of Central Valley Project water in accordance with this Act
or any other provision of Federal reclamation law and the National Environmental
Policy Act of 1969.';
(B) in paragraph (1)(A), by striking `to combination' and inserting
`or combination';
(C) in paragraph (2), by adding at the end the following:
`(E) The contracting district from which the water is coming, the
agency, or the Secretary shall determine if a written transfer proposal
is complete within 45 days after the date of submission of such proposal.
If such district or agency or the Secretary determines that such proposal
is incomplete, such district or agency or the Secretary shall state with
specificity what must be added to or revised in order for such proposal
to be complete.
`(F) Except as provided in this section, the Secretary shall not
impose mitigation or other requirements on a proposed transfer, but the
contracting district from which the water is coming or the agency shall
retain all authority under State law to approve or condition a proposed
transfer.'; and
(D) by adding at the end the following:
`(4) Notwithstanding any other provision of Federal reclamation law--
`(A) the authority to make transfers or exchanges of, or banking
or recharge arrangements using, Central Valley Project water that could
have been conducted before October 30, 1992, is valid, and such transfers,
exchanges, or arrangements shall not be subject to, limited, or conditioned
by this title; and
`(B) this title shall not supersede or revoke the authority to transfer,
exchange, bank, or recharge Central Valley Project water that existed
prior to October 30, 1992.'.
(A) in the heading, by striking `METERING' and inserting `MEASUREMENT';
and
(B) by inserting after the first sentence the following: `The contracting
district or agency, not including contracting districts serving multiple
agencies with separate governing boards, shall ensure that all contractor-owned
water delivery systems within its boundaries measure surface water at
the district or agency's facilities up to the point the surface water
is commingled with other water supplies.'.
(3) By striking subsection (d).
(4) By redesignating subsections (e) and (f) as subsections (d) and
(e), respectively.
(5) By amending subsection (e)(as redesignated by paragraph (4))--
(A) by striking `as a result of the increased repayment' and inserting
`that exceed the cost-of-service';
(B) by inserting `the delivery of' after `rates applicable to'; and
(C) by striking `, and all increased revenues received by the Secretary
as a result of the increased water prices established under subsection
3405(d) of this section,'.
SEC. 105. FISH, WILDLIFE, AND HABITAT RESTORATION.
Section 3406 of the Central Valley Project Improvement Act (106 Stat.
4714) is amended as follows:
(A) in paragraph (1)(B)--
(i) by striking `is authorized and directed to' and inserting `may';
(ii) by inserting `reasonable water' after `to provide';
(iii) by striking `anadromous fish, except that such' and inserting
`anadromous fish. Such';
(iv) by striking `Instream flow' and inserting `Reasonable instream
flow';
(v) by inserting `and the National Marine Fisheries Service' after
`United States Fish and Wildlife Service'; and
(vi) by striking `California Department of Fish and Game' and inserting
`United States Geological Survey';
(i) by striking `primary purpose' and inserting `purposes';
(ii) by striking `but not limited to' before `additional obligations';
and
(iii) by adding after the period the following: `All Central Valley
Project water used for the purposes specified in this paragraph shall
be credited to the quantity of Central Valley Project yield dedicated
and managed under this paragraph by determining how the dedication and
management of such water would affect the delivery capability of the
Central Valley Project during the 1928 to 1934 drought period after
fishery, water quality, and other flow and operational requirements
imposed by terms and conditions existing in licenses, permits, and other
agreements pertaining to the Central Valley Project under applicable
State or Federal law existing on October 30, 1992, have been met. To
the fullest extent possible and in accordance with section 3411, Central
Valley Project water dedicated and managed pursuant to this paragraph
shall be reused to fulfill the Secretary's remaining contractual obligations
to provide Central Valley Project water for agricultural or municipal
and industrial purposes.';
(C) by amending paragraph (2)(C) to read:
`(C) If by March 15th of any year the quantity of Central Valley
Project water forecasted to be made available to water service or repayment
contractors in the Delta Division of the Central Valley Project is below
75 percent of the total quantity of water to be made available under said
contracts, the quantity of Central Valley Project yield dedicated and
managed for that year under this paragraph shall be reduced by 25 percent.'.
(2) By adding at the end the following:
`(i) SATISFACTION OF PURPOSES- By pursuing the activities described
in this section, the Secretary shall be deemed to have met the mitigation,
protection, restoration, and enhancement purposes of this title.'.
SEC. 106. RESTORATION FUND.
(a) In General- Section 3407(a) of the Central Valley Project Improvement
Act (106 Stat. 4726) is amended as follows:
(1) By inserting `(1) IN GENERAL- ' before `There is hereby'.
(2) By striking `Not less than 67 percent' and all that follows through
`Monies' and inserting `Monies'.
(3) By adding at the end the following:
`(2) Prohibitions- The Secretary may not directly or indirectly require
a donation or other payment to the Restoration Fund--
`(A) or environmental restoration or mitigation fees not otherwise
provided by law, as a condition to--
`(i) providing for the storage or conveyance of non-Central Valley
Project water pursuant to Federal reclamation laws; or
`(ii) the delivery of water pursuant to section 215 of the Reclamation
Reform Act of 1982 (Public Law 97-293; 96 Stat. 1270); or
`(B) for any water that is delivered with the sole intent of groundwater
recharge.'.
(b) Certain Payments- Section 3407(c)(1) of the Central Valley Project
Improvement Act is amended--
(1) by striking `mitigation and restoration';
(2) by striking `provided for or'; and
(3) by striking `of fish, wildlife' and all that follows through the
period and inserting `of carrying out all activities described in this title.'.
(c) Adjustment and Assessment of Mitigation and Restoration Payments-
Section 3407(d)(2) of the Central Valley Project Improvement Act is amended
by inserting `, or after October 1, 2013, $4 per megawatt-hour for Central
Valley Project power sold to power contractors (October 2013 price levels)'
after `$12.00 per acre-foot (October 1992 price levels) for municipal and
industrial water sold and delivered by the Central Valley Project'.
(d) Completion of Actions- Section 3407(d)(2)(A) of the Central Valley
Project Improvement Act is amended by inserting `, no later than December
31, 2020,' after `That upon the completion of the fish, wildlife, and habitat
mitigation and restoration actions mandated under section 3406 of this title,'.
(e) Report; Advisory Board- Section 3407 of the Central Valley Project
Improvement Act (106 Stat. 4714) is amended by adding at the end the following:
`(g) Report on Expenditure of Funds- At the end of each fiscal year,
the Secretary, in consultation with the Restoration Fund Advisory Board, shall
submit to Congress a plan for the expenditure of all of the funds deposited
into the Restoration Fund during the preceding fiscal year. Such plan shall
contain a cost-effectiveness analysis of each expenditure.
`(1) ESTABLISHMENT- There is hereby established the Restoration Fund
Advisory Board (hereinafter in this section referred to as the `Advisory
Board') composed of 12 members selected by the Secretary, each for four-year
terms, one of whom shall be designated by the Secretary as Chairman. The
members shall be selected so as to represent the various Central Valley
Project stakeholders, four of whom shall be from CVP agricultural users,
three from CVP municipal and industrial users, three from CVP power contractors,
and two at the discretion of the Secretary. The Secretary and the Secretary
of Commerce may each designate a representative to act as an observer of
the Advisory Board.
`(2) DUTIES- The duties of the Advisory Board are as follows:
`(A) To meet at least semiannually to develop and make recommendations
to the Secretary regarding priorities and spending levels on projects
and programs carried out pursuant to the Central Valley Project Improvement
Act.
`(B) To ensure that any advice or recommendation made by the Advisory
Board to the Secretary reflect the independent judgment of the Advisory
Board.
`(C) Not later than December 31, 2013, and annually thereafter, to
transmit to the Secretary and Congress recommendations required under
subparagraph (A).
`(D) Not later than December 31, 2013, and biennially thereafter,
to transmit to Congress a report that details the progress made in achieving
the actions mandated under section 3406 of this title.
`(3) ADMINISTRATION- With the consent of the appropriate agency head,
the Advisory Board may use the facilities and services of any Federal agency.'.
SEC. 107. ADDITIONAL AUTHORITIES.
(a) Authority for Certain Activities- Section 3408(c) of the Central
Valley Project Improvement Act (106 Stat. 4728) is amended to read as follows:
`(c) Contracts for Additional Storage and Delivery of Water-
`(1) IN GENERAL- The Secretary is authorized to enter into contracts
pursuant to Federal reclamation law and this title with any Federal agency,
California water user or water agency, State agency, or private organization
for the exchange, impoundment, storage, carriage, and delivery of nonproject
water for domestic, municipal, industrial, fish and wildlife, and any other
beneficial purpose.
`(2) LIMITATION- Nothing in this subsection shall be deemed to supersede
the provisions of section 103 of Public Law 99-546 (100 Stat. 3051).
`(3) AUTHORITY FOR CERTAIN ACTIVITIES- The Secretary shall use the
authority granted by this subsection in connection with requests to exchange,
impound, store, carry, or deliver nonproject water using Central Valley
Project facilities for any beneficial purpose.
`(4) RATES- The Secretary shall develop rates not to exceed the amount
required to recover the reasonable costs incurred by the Secretary in connection
with a beneficial purpose under this subsection. Such rates shall be charged
to a party using Central Valley Project facilities for such purpose. Such
costs shall not include any donation or other payment to the Restoration
Fund.
`(5) CONSTRUCTION- This subsection shall be construed and implemented
to facilitate and encourage the use of Central Valley Project facilities
to exchange, impound, store, carry, or deliver nonproject water for any
beneficial purpose.'.
(b) Reporting Requirements- Section 3408(f) of the Central Valley Project
Improvement Act (106 Stat. 4729) is amended--
(1) by striking `Interior and Insular Affairs and the Committee on
Merchant Marine and Fisheries' and inserting `Natural Resources';
(2) in the second sentence, by inserting before the period at the end
the following: `, including progress on the plan required by subsection
(j)'; and
(3) by adding at the end the following: `The filing and adequacy of
such report shall be personally certified to the Committees referenced above
by the Regional Director of the Mid-Pacific Region of the Bureau of Reclamation.'.
(c) Project Yield Increase- Section 3408(j) of the Central Valley Project
Improvement Act (106 Stat. 4730) is amended as follows:
(1) By redesignating paragraphs (1) through (7) as subparagraphs (A)
through (G), respectively.
(2) By striking `In order to minimize adverse effects, if any, upon'
and inserting `(1) IN GENERAL- In order to minimize adverse effects upon'.
(3) By striking `needs, the Secretary,' and all that follows through
`submit to Congress, a' and inserting `needs, the Secretary, on a priority
basis and not later than September 30, 2013, shall submit to Congress a'.
(4) By striking `increase,' and all that follows through `options--'
and inserting `increase, as soon as possible but not later than September
30, 2016 (except for the construction of new facilities which shall not
be limited by that deadline), the water of the Central Valley Project by
the amount dedicated and managed for fish and wildlife purposes under this
title and otherwise required to meet the purposes of the Central Valley
Project including satisfying contractual obligations. The plan required
by this subsection shall include recommendations on appropriate cost-sharing
arrangements and authorizing legislation or other measures needed to implement
the intent, purposes, and provisions of this subsection and a description
of how the Secretary intends to use the following options--'.
(5) In subparagraph (A), by inserting `and construction of new water
storage facilities' before the semicolon.
(6) In subparagraph (F), by striking `and' at the end.
(7) In subparagraph (G), by striking the period and all that follows
through the end of the subsection and inserting `; and'.
(8) By inserting after subparagraph (G) the following:
`(H) Water banking and recharge.'.
(9) By adding at the end the following:
`(2) IMPLEMENTATION OF PLAN- The Secretary shall implement the plan
required by paragraph (1) commencing on October 1, 2013. In order to carry
out this subsection, the Secretary shall coordinate with the State of California
in implementing measures for the long-term resolution of problems in the
San Francisco Bay/Sacramento-San Joaquin Delta Estuary.
`(3) FAILURE OF THE PLAN- Notwithstanding any other provision of Federal
reclamation law, if by September 30, 2016, the plan required by paragraph
(1) fails to increase the annual delivery capability of the Central Valley
Project by 800,000 acre-feet, implementation of any non-mandatory action
under section 3406(b)(2) shall be suspended until the plan achieves an increase
in the annual delivery capability of the Central Valley Project by 800,000
acre-feet.'.
(d) Technical Correction- Section 3408(h) of the Central Valley Project
Improvement Act (106 Stat. 4729) is amended--
(1) in paragraph (1), by striking `paragraph (h)(2)' and inserting
`paragraph (2)'; and
(2) in paragraph (2), by striking `paragraph (h)(i)' and inserting
`paragraph (1)'.
(e) Water Storage Project Construction- The Secretary, acting through
the Commissioner of the Bureau of Reclamation, may partner on the water storage
projects identified in section 103(d)(1) of the Water Supply Reliability,
and Environmental Improvement Act (Public Law 108-361)(and Acts supplemental
and amendatory to the Act) with local joint powers authorities formed pursuant
to State law by irrigation districts and other local water districts and local
governments within the applicable hydrologic region, to advance these projects.
No Federal funds are authorized for this purpose and each water storage project
is authorized for construction if non-Federal funds are used for financing
and constructing the project.
SEC. 108. BAY-DELTA ACCORD.
(a) Congressional Direction Regarding Central Valley Project and California
State Water Project Operations- The Central Valley Project and the State Water
Project shall be operated pursuant to the water quality standards and operational
constraints described in the `Principles for Agreement on the Bay-Delta Standards
Between the State of California and the Federal Government' dated December
15, 1994, and such operations shall proceed without regard to the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.) or any other law pertaining to
the operation of the Central Valley Project and the California State Water
Project. Implementation of this section shall be in strict conformance with
the `Principles for Agreement on the Bay-Delta Standards Between the State
of California and the Federal Government' dated December 15, 1994.
(b) Application of Laws to Others- Neither a Federal department nor the
State of California, including any agency or board of the State of California,
shall impose on any valid water right obtained pursuant to State law, including
a pre-1914 appropriative right, any condition that restricts the exercise
of that water right in order to conserve, enhance, recover or otherwise protect
any species that is affected by operations of the Central Valley Project or
California State Water Project. Nor shall the State of California, including
any agency or board of the State of California, restrict the exercise of any
valid water right obtained pursuant to State law, including a pre-1914 appropriative
right, in order to protect, enhance, or restore under the Public Trust Doctrine
any public trust value. Implementation of the `Principles for Agreement on
the Bay-Delta Standards Between the State of California and the Federal Government'
dated December 15, 1994, shall be in strict compliance with the water rights
priority system and statutory protections for areas of origin.
(c) Costs- No cost associated with the implementation of this section
shall be imposed directly or indirectly on any Central Valley Project contractor,
or any other person or entity, unless such costs are incurred on a voluntary
basis.
(d) Native Species Protection- California law is preempted with respect
to any restriction on the quantity or size of nonnative fish taken or harvested
that preys upon one or more native fish species that occupy the Sacramento
and San Joaquin Rivers and their tributaries or the Sacramento-San Joaquin
Rivers Delta.
SEC. 109. NATURAL AND ARTIFICIALLY SPAWNED SPECIES.
After the date of the enactment of this title, and regardless of the
date of listing, the Secretaries of the Interior and Commerce shall not distinguish
between natural-spawned and hatchery-spawned or otherwise artificially propagated
strains of a species in making any determination under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.) that relates to any anadromous fish species
present in the Sacramento and San Joaquin Rivers or their tributaries and
ascend those rivers and their tributaries to reproduce after maturing in San
Francisco Bay or the Pacific Ocean.
SEC. 110. AUTHORIZED SERVICE AREA.
The authorized service area of the Central Valley Project shall include
the area within the boundaries of the Kettleman City Community Services District,
California, as those boundaries exist on the date of the enactment of this
title. Notwithstanding the provisions of the Act of October 30, 1992 (Public
Law 102-575, 106 Stat. 4600 et seq.), upon enactment of this title, the Secretary
is authorized and directed to enter into a long-term contract in accordance
with the reclamation laws with the Kettleman City Community Services District,
California, for the delivery of up to 900 acre-feet of Central Valley Project
water for municipal and industrial use. The Secretary may temporarily reduce
deliveries of the quantity of water made available pursuant to up to 25 percent
of such total whenever reductions due to hydrologic circumstances are imposed
upon agricultural deliveries of Central Valley Project water. If any additional
infrastructure or related-costs are needed to implement this section, such
costs shall be the responsibility of the non-Federal entity.
SEC. 111. REGULATORY STREAMLINING.
(a) Applicability of Certain Laws- Filing of a Notice of Determination
or a Notice of Exemption for any project, including the issuance of a permit
under State law, related to any project of the CVP or the delivery of water
therefrom in accordance with the California Environmental Quality Act shall
be deemed to meet the requirements of section 102(2)(C) of the National Environmental
Protection Act of 1969 (42 U.S.C. 4332(2)(C)) for that project or permit.
(b) Continuation of Project- The Bureau of Reclamation shall not be required
to cease or modify any major Federal action or other activity related to any
project of the CVP or the delivery of water there from pending completion
of judicial review of any determination made under the National Environmental
Protection Act of 1969 (42 U.S.C. 4332(2)(C)).
(c) Project Defined- For the purposes of this section:
(1) CVP- The term `CVP' means the Central Valley Project.
(2) PROJECT- The term `project'--
(A) means an activity that--
(i) is undertaken by a public agency, funded by a public agency,
or that requires an issuance of a permit by a public agency;
(ii) has a potential to result in physical change to the environment;
and
(iii) may be subject to several discretionary approvals by governmental
agencies;
(B) may include construction activities, clearing or grading of land,
improvements to existing structures, and activities or equipment involving
the issuance of a permit; or
(C) as defined under the California Environmental Quality Act in
section 21065 of the California Public Resource Code.
TITLE II--SAN JOAQUIN RIVER RESTORATION
SEC. 201. REPEAL OF THE SAN JOAQUIN RIVER SETTLEMENT.
As of the date of enactment of this title, the Secretary shall cease
any action to implement the Stipulation of Settlement (Natural Resources
Defense Council, et al. v. Kirk Rodgers, et al., Eastern District
of California, No. Civ. S-88-1658 LKK/GGH).
SEC. 202. PURPOSE.
Section 10002 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended by striking `implementation of the Settlement' and
inserting `restoration of the San Joaquin River'.
SEC. 203. DEFINITIONS.
Section 10003 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended--
(1) by striking paragraph (1) and inserting the following:
`(1) The term `Restoration Flows' means the additional water released
or bypassed from Friant Dam to insure that the target flow entering Mendota
Pool, located approximately 62 river miles downstream from Friant Dam, does
not fall below 50 cubic feet per second.';
(2) by striking paragraph (3) and inserting the following:
`(3) The term `Water Year' means March 1 through the last day of February
of the following Calendar Year, both dates inclusive'; and
(3) by adding at the end the following new paragraph:
`(4) The term `Critical Water Year' means when the total unimpaired
runoff at Friant Dam is less than 400,000 acre-feet, as forecasted as of
March 1 of that water year by the California Department of Water Resources.'.
SEC. 204. IMPLEMENTATION OF RESTORATION.
Section 10004 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended--
(A) in the matter preceding paragraph (1), by striking `authorized
and directed' and all that follows through `in the Settlement' and inserting
`authorized to carry out the following:';
(B) by striking paragraphs (1), (2), (4), and (5);
(i) by striking `(3)' and inserting `(1)'; and
(ii) by striking `paragraph 13 of the Settlement' and inserting
`this part'
(D) by adding at the end the following new paragraphs:
`(2) In each Water Year, commencing in the Water Year starting on March
1, 2013--
`(A) shall modify Friant Dam operations so as to release the Restoration
Flows for that Water Year, except in any Critical Water Year;
`(B) shall ensure that the release of Restoration Flows are maintained
at the level prescribed by this part, but that Restoration Flows do not
reach downstream of Mendota Pool;
`(C) shall release the Restoration Flows in a manner that improves
the fishery in the San Joaquin River below Friant Dam, but upstream of
Gravelly Ford in existence as of the date of the enactment of this part,
and the associated riparian habitat; and
`(D) may, without limiting the actions required under paragraphs
(A) and (C) and subject to subsections 10004(a)(3) and 10004(l), use the
Restoration Flows to enhance or restore a warm water fishery downstream
of Gravelly Ford to and including Mendota Pool, if the Secretary determines
that it is reasonable, prudent, and feasible to do so; and
`(3) Not later than 1 year after the date of the enactment of this
section, the Secretary shall develop and implement, in cooperation with
the State of California, a reasonable plan, to fully recirculate, recapture,
reuse, exchange, or transfer all Restoration Flows and provide such recirculated,
recaptured, reused, exchanged, or transferred flows to those contractors
within the Friant Division, Hidden Unit, and Buchanan Unit of the Central
Valley Project that relinquished the Restoration Flows so recirculated,
recaptured, reused, exchanged, or transferred. Such a plan shall address
any impact on ground water resources within the service area of the Friant
Division, Hidden Unit, and Buchanan Unit of the Central Valley Project and
mitigation may include ground water banking and recharge projects. Such
a plan shall not impact the water supply or water rights of any entity outside
the Friant Division, Hidden unit, and Buchanan Unit of the Central Valley
Project. Such a plan shall be subject to applicable provisions of California
water law and the Secretary's use of Central Valley Project facilities to
make Project water (other than water released from Friant Dam pursuant to
this part) and water acquired through transfers available to existing south-of-Delta
Central Valley Project contractors.';
(A) in paragraph (1), by striking `the Settlement' and inserting
`this part';
(B) in paragraph (2), by striking `the Settlement' and inserting
`this part';
(3) in subsection (c), by striking `the Settlement' and inserting `this
part';
(4) by striking subsection (d) and inserting the following:
`(d) Mitigation of Impacts- Prior to October 1, 2013, the Secretary shall
identify--
`(1) the impacts associated with the release of Restoration Flows prescribed
in this part;
`(2) the measures which shall be implemented to mitigate impacts on
adjacent and downstream water users, landowners and agencies as a result
of Restoration Flows prescribed in this part; and
`(3) prior to the implementation of decisions or agreements to construct,
improve, operate, or maintain facilities that the Secretary determines are
needed to implement this part, the Secretary shall implement all mitigations
measures identified in subsection (d)(2) before Restoration Flows are commenced.';
(5) in subsection (e), by striking `the Settlement' and inserting `this
part';
(6) in subsection (f), by striking `the Settlement' and all that follows
through `section 10011' and insert `this part';
(A) by striking `the Settlement and' before this part; and
(B) by striking `or exchange contract' and inserting `exchange contract,
or water rights settlement or holding contracts';
(A) by striking `Interim' in the header;
(i) in the matter preceding subparagraph (A), by striking `Interim
Flows under the Settlement' and inserting `Restoration Flows under this
part';
(ii) in subparagraph (C)--
(I) in clause (i), by striking `Interim' and inserting `Restoration';
and
(II) in clause (ii), by inserting `and' after the semicolon;
(iii) in subparagraph (D), by striking `and' at the end; and
(iv) by striking subparagraph (E);
(i) by striking `Interim' and inserting `Restoration';
(ii) by striking subparagraph (A); and
(iii) by striking `(B) exceed' and inserting `exceed';
(D) in paragraph (3), by striking `Interim' and inserting `Restoration';
and
(E) by striking paragraph (4) and inserting the following:
`(4) CLAIMS- Within 60 days of enactment of this Act the Secretary
shall promulgate a rule establishing a claims process to address current
and future claims including, but not limited to, ground water seepage, flooding,
or levee instability damages caused as a result of, arising out of, or related
to implementation of subtitle A of title X of Public Law 111-11.';
(i) in the matter preceding subparagraph (A), by striking `the
Settlement and parts I and III' and inserting `this part';
(ii) in subparagraph (A), by inserting `and' after the semicolon;
(iii) in subparagraph (B)--
(I) by striking `additional amounts authorized to be appropriated,
including the';
(II) by striking `; and' and inserting a period; and
(iv) by striking subparagraph (C); and
(B) by striking paragraph (3); and
(10) by adding at the end the following new subsections:
`(k) No Impacts on Other Interests- No Central Valley Project or other
water other than San Joaquin River water impounded by or bypassed from Friant
Dam shall be used to implement subsection (a)(2) unless such use is on a voluntary
basis. No cost associated with the implementation of this section shall be
imposed directly or indirectly on any Central Valley Project contractor, or
any other person or entity, outside the Friant Division, the Hidden Unit,
or the Buchanan Unit, unless such costs are incurred on a voluntary basis.
The implementation of this part shall not result directly or indirectly in
any reduction in water supplies or water reliability on any Central Valley
Project contractor, any State Water Project contractor, or any other person
or entity, outside the Friant Division, the Hidden Unit, or the Buchanan Unit,
unless such reductions or costs are incurred on a voluntary basis.
`(l) Priority- All actions taken under this part shall be subordinate
to the Secretary's use of Central Valley Project facilities to make Project
water available to Project contractors, other than water released from the
Friant Dam pursuant to this part.
`(m) In General- Notwithstanding section 8 of the Reclamation Act of
1902, except as provided in this part, including Title IV of the Sacramento
and San Joaquin Valleys Water Reliability Act, this part preempts and supersedes
any State law, regulation, or requirement that imposes more restrictive requirements
or regulations on the activities authorized under this part. Nothing in this
part shall alter or modify the obligations, if any, of the Friant Division,
Hidden Unit, and Buchanan Unit of the Central Valley Project, or other water
users on the San Joaquin River or its tributaries, under orders issued by
the State Water Resources Control Board pursuant to the Porter-Cologne Water
Quality Control Act (California Water Code sections 13000 et seq.). Any such
order shall be consistent with the congressional authorization for any affected
Federal facility as it pertains to the Central Valley Project.
`(n) Project Implementation- Projects to implement this title shall be
phased such that each project shall follow the sequencing identified below
and include at least the--
`(1) project purpose and need;
`(2) identification of mitigation measures;
`(3) appropriate environmental review; and
`(4) prior to releasing Restoration Flows under this part, the Secretary
shall--
`(A) complete the implementation of mitigation measures required;
and
`(B) complete implementation of the project.'.
SEC. 205. DISPOSAL OF PROPERTY; TITLE TO FACILITIES.
Section 10005 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended--
(1) in subsection (a), by striking `the Settlement authorized by this
part' and inserting `this part';
(i) by striking `(1) IN GENERAL- The Secretary' and inserting `The
Secretary'; and
(ii) by striking `the Settlement authorized by this part' and inserting
`this part'; and
(B) by striking paragraph (2); and
(A) in paragraph (1), by striking `the Settlement' and inserting
`this part';
(i) by striking `through the exercise of its eminent domain authority';
and
(ii) by striking `the Settlement' and inserting `this part'; and
(C) in paragraph (3), by striking `section 10009(c)' and inserting
`section 10009'.
SEC. 206. COMPLIANCE WITH APPLICABLE LAW.
Section 10006 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended--
(A) in paragraph (1), by inserting `unless otherwise provided by
this part' before the period at the end; and
(B) in paragraph (2), by striking `the Settlement' and inserting
`this part';
(2) in subsection (b), by inserting `, unless otherwise provided by
this part' before the period at the end;
(A) in paragraph (2), by striking `section 10004' and inserting `this
part'; and
(B) in paragraph (3), by striking `the Settlement' and inserting
`this part'; and
(A) by inserting `, including without limitation to sections 10004(d)
and 10004(h)(4) of this part,' after `implementing this part'; and
(B) by striking `for implementation of the Settlement'.
SEC. 207. COMPLIANCE WITH CENTRAL VALLEY PROJECT IMPROVEMENT ACT.
Section 10007 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended--
(1) in the matter preceding paragraph (1),
(A) by striking `the Settlement' and inserting `enactment of this
part'; and
(B) by inserting: `and the obligations of the Secretary and all other
parties to protect and keep in good condition any fish that may be planted
or exist below Friant Dam including any obligations under section 5937
of the California Fish and Game Code and the public trust doctrine, and
those of the Secretary and all other parties under the Endangered Species
Act of 1973 (16 U.S.C. 1531 et seq.).' before `, provided'; and
(2) in paragraph (1), by striking `, as provided in the Settlement'.
SEC. 208. NO PRIVATE RIGHT OF ACTION.
Section 10008(a) of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) by striking `not a party to the Settlement' after `person or entity'
; and
(2) by striking `or the Settlement' before the period and inserting
`unless otherwise provided by this part. Any Central Valley Project long-term
water service or repayment contractor within the Friant Division, Hidden
unit, or Buchanan Unit adversely affected by the Secretary's failure to
comply with section 10004(a)(3) of this part may bring an action against
the Secretary for injunctive relief or damages, or both.'.
SEC. 209. IMPLEMENTATION.
Section 10009 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended--
(1) in the header by striking `; settlement fund';
(i) by striking `the Settlement' and inserting `this part';
(ii) by striking `, estimated to total' and all that follows through
`subsection (b)(1),'; and
(iii) by striking `, provided; however,' and all that follows through
`$110,000,000 of State funds';
(i) in subparagraph (A), by striking `(A) IN GENERAL- The Secretary'
and inserting `The Secretary';
(ii) by striking subparagraph (B); and
(i) by striking `Except as provided in the Settlement, to' and
inserting `To'; and
(ii) by striking `this Settlement' and inserting `this part';
(3) in subsection (b)(1)--
(A) by striking `In addition' through `however, that the' and inserting
`The';
(B) by striking `such additional appropriations only in amounts equal
to'; and
(C) by striking `or the Settlement' before the period;
(i) in the matter preceding subparagraph (A), by striking `the
Settlement' and inserting `this part';
(ii) in subparagraph (C), by striking `from the sale of water pursuant
to the Settlement, or'; and
(iii) in subparagraph (D), by striking `the Settlement' and inserting
`this part';
(B) in paragraph (2), by striking `the Settlement and' before `this
part'; and
(5) by striking subsections (d) through (f).
SEC. 210. REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF CONSTRUCTION
COSTS.
Section 10010 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended--
(A) in paragraph (3)(D), by striking `the Settlement and' after `this
part'; and
(B) in paragraph (4)(C), by striking `the Settlement and' after `this
part';
(2) in subsection (c), by striking paragraph (3);
(3) in subsection (d)(1), by striking `the Settlement' in both places
it appears and inserting `this part';
(i) by striking `Interim Flows or Restoration Flows, pursuant to
paragraphs 13 or 15 of the Settlement' and inserting `Restoration Flows,
pursuant to this part';
(ii) by striking `Interim Flows or' before `Restoration Flows';
and
(iii) by striking `the Interim Flows or Restoration Flows or is
intended to otherwise facilitate the Water Management Goal, as described
in the Settlement' and inserting `Restoration Flows'; and
(i) by striking `except as provided in paragraph 16(b) of the Settlement'
after `Friant Division long-term contractor'; and
(ii) by striking `the Interim Flows or Restoration Flows or to
facilitate the Water Management Goal' and inserting `Restoration Flows'.
SEC. 211. REPEAL.
Section 10011 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is repealed.
SEC. 212. WATER SUPPLY MITIGATION.
Section 10202(b) of the San Joaquin River Restoration Settlement Act
(Public Law 111-11) is amended--
(1) in paragraph (1), by striking `the Interim or Restoration Flows
authorized in part I of this subtitle' and inserting `Restoration Flows
authorized in this part';
(2) in paragraph (2), by striking `the Interim or Restoration Flows
authorized in part I of this subtitle' and inserting `Restoration Flows
authorized in this part'; and
(A) in subparagraph (A), by striking `meet the Restoration Goal as
described in part I of this subtitle' and inserting `recover Restoration
Flows as described in this part';
(B) in subparagraph (C)--
(i) by striking `the Interim or Restoration Flows authorized in
part I of this subtitle' and inserting `Restoration Flows authorized
in this part'; and
(ii) by striking `, and for ensuring appropriate adjustment in
the recovered water account pursuant to section 10004(a)(5)'.
SEC. 213. ADDITIONAL AUTHORITIES.
Section 10203 of the San Joaquin River Restoration Settlement Act (Public
Law 111-11) is amended--
(A) by striking `section 10004(a)(4)' and inserting `section 10004(a)(3)';
and
(B) by striking `, provided' and all that follows through `section
10009(f)(2)'; and
(2) by striking subsection (c).
TITLE III--REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF CONSTRUCTION
COSTS
SEC. 301. REPAYMENT CONTRACTS AND ACCELERATION OF REPAYMENT OF CONSTRUCTION
COSTS.
(a) Conversion of Contracts-
(1) Not later than 1 year after enactment, the Secretary of the Interior,
upon request of the contractor, shall convert all existing long-term Central
Valley Project contracts entered under subsection (e) of section 9 of the
Act of August 4, 1939 (53 Stat. 1196), to a contract 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, not later than 1 year after enactment, any Central Valley Project
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 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 most current
version of the Central Valley Project Schedule of Irrigation Capital Allocations
by Contractor, as adjusted to reflect payments not reflected in such schedule,
and properly assignable for ultimate return by the contractor, no later
than January 31, 2013, or if made in approximately equal annual installments,
no later than January 31, 2016; such amount to be discounted by the Treasury
Rate. An estimate of the remaining amount of construction costs as of
January 31, 2013, as adjusted, shall be provided by the Secretary of the
Interior to each contractor no later than 180 days after enactment;
(B) require that, notwithstanding subsection (c)(2), construction
costs or other capitalized costs incurred after the effective date of
the converted 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) provide that power revenues will not be available to aid in repayment
of construction costs allocated to irrigation under the contract.
(4) All 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, 2016.
An estimate of the remaining amount of construction costs as of January
31, 2016, as adjusted, shall be provided by the Secretary of the Interior
to each contractor no later than 180 days after enactment; and
(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.
(b) Final Adjustment- The amounts paid pursuant to subsection (a) shall
be subject to adjustment following a final cost allocation by the Secretary
of the Interior 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 of the Interior 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 ownership and full-cost pricing limitations of any provision
of Federal reclamation law shall not apply to lands in such district.
(2) Notwithstanding any repayment obligation under paragraph (3)(B)
or paragraph (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), 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.
(d) 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 any 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.
(e) Statutory Interpretation- Nothing in this part shall be construed
to affect the right of any long-term contractor to use a particular type of
financing to make the payments required in paragraph (3)(A) or paragraph (4)(A)
of subsection (a).
(f) Definition of Treasury Rate- For purposes of this section, `Treasury
Rate' shall be defined as the 20-year Constant Maturity Treasury rate published
by the United States Department of the Treasury as of October 1, 2012.
TITLE IV--BAY-DELTA WATERSHED WATER RIGHTS PRESERVATION AND PROTECTION
SEC. 401. WATER RIGHTS AND AREA-OF-ORIGIN PROTECTIONS.
Notwithstanding the provisions of this Act, Federal reclamation law,
or the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)--
(1) the Secretary of the Interior (`Secretary') is directed, in the
operation of the Central Valley Project, to strictly adhere to State water
rights law governing water rights priorities by honoring water rights senior
to those belonging to the Central Valley Project, regardless of the source
of priority;
(2) the Secretary is directed, in the operation of the Central Valley
Project, to strictly adhere to and honor water rights and other priorities
that are obtained or exist pursuant to the provisions of California Water
Code sections 10505, 10505:5, 11128, 11460, and 11463; and sections 12200
to 12220, inclusive; and
(3) any action that affects the diversion of water or involves the
release of water from any water storage facility taken by the Secretary
or the Secretary of the Department of Commerce to conserve, enhance, recover,
or otherwise protect any species listed under the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.) shall be applied in a manner that is consistent
with water right priorities established by State law.
SEC. 402. SACRAMENTO RIVER SETTLEMENT CONTRACTS.
In the implementation of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.), in the Bay-Delta and on the Sacramento River, the Secretary
and the Secretary of Commerce are directed to apply any limitations on the
operation of the Central Valley Project or to formulate any `reasonable prudent
alternative' associated with the operation of the Central Valley Project in
a manner that strictly adheres to and applies the water rights priorities
for `Project Water' and `Base Supply' provided for in the Sacramento River
Settlement Contracts. Article 3(i) of the Sacramento River Settlement Contracts
shall not be utilized by the United States as means to provide shortages to
the Sacramento River Settlement Contracts that are different than those provided
for in Article 5(a) of those contracts.
SEC. 403. SACRAMENTO RIVER WATERSHED WATER SERVICE CONTRACTORS.
(a) In General- Subject to subsection (b) and the absolute priority of
the Sacramento River Settlement Contractors to Sacramento River supplies over
Central Valley Project diversions and deliveries to other contractors, the
Secretary is directed, in the operation of the Central Valley Project, to
allocate water provided for irrigation purposes to existing Central Valley
Project agricultural water service contractors within the Sacramento River
Watershed in compliance with the following:
(1) Not less than 100% of their contract quantities in a `Wet' year.
(2) Not less than 100% of their contract quantities in an `Above Normal'
year.
(3) Not less than 100% of their contract quantities in a `Below Normal'
year.
(4) Not less than 75% of their contract quantities in a `Dry' year.
(5) Not less than 50% of their contract quantities in a `Critically
Dry' year.
(b) Protection of Municipal and Industrial Supplies- Nothing in subsection
(a) shall be deemed to (i) modify any provision of a water service contract
that addresses municipal and industrial water shortage policies of the Secretary,
(ii) affect or limit the authority of the Secretary to adopt or modify municipal
and industrial water shortage policies, (iii) affect or limit the authority
of the Secretary to implement municipal and industrial water shortage policies,
or (iv) affect allocations to Central Valley Project municipal and industrial
contractors pursuant to such policies. Neither subsection (a) nor the Secretary's
implementation of subsection (a) shall constrain, govern or affect, directly
or indirectly, the operations of the Central Valley Project's American River
Division or any deliveries from that Division, its units or its facilities.
(c) Definitions- In this section:
(1) The term `existing Central Valley Project agricultural water service
contractors within the Sacramento River Watershed' means water service contractors
within the Shasta, Trinity, and Sacramento River Divisions of the Central
Valley Project, that have a water service contract in effect, on the date
of the enactment of this section, that provides water for irrigation.
(2) The year type terms used in subsection (a) have the meaning given
those year types in the Sacramento Valley Water Year Type (40-30-30) Index.
SEC. 404. NO REDIRECTED ADVERSE IMPACTS.
The Secretary shall insure that there are no redirected adverse water
supply or fiscal impacts to those within the Sacramento River watershed or
to the State Water Project arising from the Secretary's operation of the Central
Valley Project to meet legal obligations imposed by or through any State or
Federal agency, including, but not limited to those legal obligations emanating
from the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) or this Act,
or actions or activities implemented to meet the twin goals of improving water
supply or addressing environmental needs of the Bay Delta.
TITLE V--MISCELLANOUS
SEC. 501. PRECEDENT.
Congress finds and declares that--
(1) coordinated operations between the Central Valley Project and the
State Water Project, previously requested and consented to by the State
of California and the Federal Government, require assertion of Federal supremacy
to protect existing water rights throughout the system; and
(2) these circumstances are unique to California.
Therefore, nothing in this Act shall serve as precedent in any other State.
Union Calendar No. 280
112th CONGRESS
2d Session
H. R. 1837
[Report No. 112-403]
A BILL
To address certain water-related concerns on the San Joaquin River, and for
other purposes.
February 27, 2012
Reported with an amendment, committed to the Committee of the Whole House
on the State of the Union, and ordered to be printed
END
