109th CONGRESS
2d Session
H. R. 6377
To authorize the implementation of the San Joaquin River Restoration
Settlement.
IN THE HOUSE OF REPRESENTATIVES
December 6, 2006
Mr. RADANOVICH (for himself, Mr. POMBO, Mrs. NAPOLITANO, Mr. CARDOZA, Mr.
COSTA, and Mr. GEORGE MILLER of California) introduced the following bill;
which was referred to the Committee on Resources
A BILL
To authorize the implementation of the San Joaquin River Restoration
Settlement.
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 `San Joaquin River Restoration Settlement Act'.
SEC. 2. PURPOSE.
The purpose of this Act is to authorize implementation of the Stipulation
of Settlement dated September 13, 2006 (referred to in this Act as the `Settlement'),
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. 3. DEFINITIONS.
In this Act, 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.
SEC. 4. IMPLEMENTATION OF SETTLEMENT.
(a) In General- The Secretary of the Interior (referred to in this Act as
the `Secretary') 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.
(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 10, 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 Act, nothing in this Act shall modify or amend the rights and obligations
of the parties to any existing water service, repayment, purchase or exchange
contract.
SEC. 5. 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 Act, 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 Act.
(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 4.
(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 Act 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 Act 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 9(c).
SEC. 6. COMPLIANCE WITH APPLICABLE LAW.
(1) IN GENERAL- In undertaking the measures authorized by this Act, 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 Act 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 4, and for which environmental review is
required, the Secretary may provide funds made available under this Act
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 Act 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. 7. 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 section 9(d); and
(2) those assessments and collections shall continue to be counted towards
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. 8. NO PRIVATE RIGHT OF ACTION.
(a) In General- Nothing in this Act 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 Act 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. 9. 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 (5) 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
4(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 4(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 funds provided in paragraphs (1) through
(5) of subsection (c), there are also authorized to be appropriated not
to exceed $250,000,000 (at October 2006 price levels) to implement this
Act 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), proceeds under subsection
(c)(3) other than an amount equal to what would otherwise have been deposited
under subsection (c)(1) in the absence of issuance of the bond, and proceeds
under subsection (c)(4)), the amount of in-kind contributions, and other
non-Federal payments actually committed to the implementation of this
Act or the Settlement.
(2) OTHER FUNDS- The Secretary is authorized to use monies from the 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 Act.
(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, to be available for expenditure without
further appropriation:
(1) Subject to subsection (d), at the beginning of the fiscal year following
enactment of this Act, 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) Subject to subsection (d), the capital component (not otherwise needed
to cover operation and maintenance costs) of payments made by Friant Division
long-term contractors pursuant to long-term water service contracts beginning
the first fiscal year after the date of enactment of this Act. The capital
repayment obligation of 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 a bond issue, federally-guaranteed loan, or other appropriate
financing instrument, to be issued or entered into by an appropriate public
agency or subdivision of the State of California pursuant to subsection
(d)(2).
(4) Proceeds from the sale of water pursuant to the Settlement, or from
the sale of property or interests in property as provided in section 5.
(5) 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) Guaranteed Loans and Other Financing Instruments-
(1) IN GENERAL- The Secretary is authorized to enter into agreements with
appropriate agencies or subdivisions of the State of California in order
to facilitate a bond issue, federally-guaranteed loan, or other appropriate
financing instrument, for the purpose of implementing this Settlement.
(2) REQUIREMENTS- If the Secretary and an appropriate agency or subdivision
of the State of California enter into such an agreement, and if such agency
or subdivision issues 1 or more revenue bonds, procures a federally secured
loan, or other appropriate financing to fund implementation of the Settlement,
and if such agency deposits the proceeds received from such bonds, loans,
or financing into the Fund pursuant to subsection (c)(3), monies specified
in paragraphs (1) and (2) of subsection (c) shall be provided by the Friant
Division long-term contractors directly to such public agency or subdivision
of the State of California to repay the bond, loan or financing rather
than into the Fund.
(3) DISPOSITION OF PAYMENTS- After the satisfaction of any such bond,
loan, or financing, the payments specified in paragraphs (1) and (2) of
subsection (c) shall be paid directly into the Fund authorized by this
section.
(e) 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.
(f) No Additional Expenditures Required- Nothing in this Act 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.
(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.
(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 paragraph (2), would exceed the remaining Federal funding authorized
by this Act (including all funds reallocated, all funds dedicated, and
all new funds authorized by this Act 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
Act in an amount at least sufficient to cover the higher estimated Federal
costs.
SEC. 10. 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)).
(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 law 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 minimis: 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.
(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.
(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.).
END
