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[110 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:36789.wais]
S. Hrg. 110-93
SAN JOAQUIN RIVER RESTORATION
SETTLEMENT ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON
ENERGY AND NATURAL RESOURCES
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
on
S. 27
TO AUTHORIZE THE IMPLEMENTATION OF THE SAN JOAQUIN RIVER RESTORATION
SETTLEMENT
__________
MAY 3, 2007
Printed for the use of the
Committee on Energy and Natural Resources
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COMMITTEE ON ENERGY AND NATURAL RESOURCES
JEFF BINGAMAN, New Mexico, Chairman
DANIEL K. AKAKA, Hawaii PETE V. DOMENICI, New Mexico
BYRON L. DORGAN, North Dakota LARRY E. CRAIG, Idaho
RON WYDEN, Oregon CRAIG THOMAS, Wyoming
TIM JOHNSON, South Dakota LISA MURKOWSKI, Alaska
MARY L. LANDRIEU, Louisiana RICHARD BURR, North Carolina
MARIA CANTWELL, Washington JIM DeMINT, South Carolina
KEN SALAZAR, Colorado BOB CORKER, Tennessee
ROBERT MENENDEZ, New Jersey JEFF SESSIONS, Alabama
BLANCHE L. LINCOLN, Arkansas GORDON H. SMITH, Oregon
BERNARD SANDERS, Vermont JIM BUNNING, Kentucky
JON TESTER, Montana MEL MARTINEZ, Florida
Robert M. Simon, Staff Director
Sam E. Fowler, Chief Counsel
Frank J. Macchiarola, Republican Staff Director
Judith K. Pensabene, Republican Chief Counsel
------
Subcommittee on Water and Power
TIM JOHNSON, South Dakota, Chairman
BYRON L. DORGAN, North Dakota BOB CORKER, Tennessee
RON WYDEN, Oregon LARRY E. CRAIG, Idaho
MARIA CANTWELL, Washington CRAIG THOMAS, Wyoming
KEN SALAZAR, Colorado JIM DeMINT, South Carolina
BLANCHE L. LINCOLN, Arkansas GORDON H. SMITH, Oregon
JON TESTER, Montana JIM BUNNING, Kentucky
Jeff Bingaman and Pete V. Domenici are Ex Officio Members of the
Subcommittee
Mike Connor, Counsel
Josh Johnson, Republican Professional Staff Member
C O N T E N T S
----------
STATEMENTS
Page
Boxer, Hon. Barbara, U.S. Senator from California................ 5
Candee, Hamilton, Senior Attorney, Co-Director, Western Water
Project, Natural Resources Defense Council, San Francisco, CA.. 26
Cantwell, Hon. Maria, U.S. Senator from Washington............... 1
Chedester, Steve, Executive Director, San Joaquin River Exchange
Contractors Water Authority, Los Banos, CA..................... 34
Corker, Hon. Bob, U.S. Senator from Tennessee.................... 2
Dooley, Daniel M., Esq., representing Friant Water Users
Authority, Lindsay, CA......................................... 18
Feinstein, Hon. Dianne, U.S. Senator from California............. 2
Grindstaff, P. Joseph, Deputy Secretary for Water Policy,
California Resources Agency and Director, California Bay-Delta
Authority, Sacramento, CA...................................... 31
Ishida, Allen, Chairman, Tulare County Board of Supervisors,
Visalia, CA.................................................... 42
Limbaugh, Mark, Assistant Secretary for Water and Science,
Department of the Interior..................................... 7
Robbins, Kenneth M., General Counsel, representing Merced
Irrigation District, Merced, CA................................ 38
APPENDIXES
Appendix I
Responses to additional questions................................ 51
Appendix II
Additional material submitted for the record..................... 61
SAN JOAQUIN RIVER RESTORATION SETTLEMENT ACT
----------
THURSDAY, MAY 3, 2007
U.S. Senate,
Subcommittee on Water and Power,
Committee on Energy and Natural Resources,
Washington, DC.
The subcommittee met, pursuant to notice, at 10 a.m., in
room SD-366, Dirksen Senate Office Building, Hon. Maria
Cantwell presiding.
OPENING STATEMENT OF HON. MARIA CANTWELL, U.S. SENATOR FROM
WASHINGTON
Senator Cantwell. I want to call to order this hearing
before the Water and Power Subcommittee. It is my pleasure to
welcome everyone to this morning's hearing, and specifically
the witnesses who traveled across the country to be with us
here today. We appreciate their efforts.
The purpose of this hearing is to receive testimony on S.
27 sponsored by Senator Feinstein and Senator Boxer, which
authorizes the implementation of the San Joaquin River
Restoration Settlement.
As I understand it, the Settlement is the culmination of
years of litigation and tough negotiation among some very
diverse interest in California. These parties have now come
together with a plan to address one of the toughest issues
facing Natural Resource managers in the West--the restoration
of salmon fisheries in the heart of a highly productive
agriculture region. For years now, along the west coast, people
from all walks of life have worked together to ensure that
salmon runs in this region are healthy and thriving.
Unfortunately, the hard work has not paid off in the way
that we had hoped. By the late 1990's, west coast salmon runs
had declined to only 10 to 15 percent of what they had been in
the 1800's. Currently, 26 district populations of Pacific
Salmon and Steelhead Trout are listed as either endangered or
threatened under the Endangered Species Act, and there is
obviously much more work to be done.
Up and down the Pacific coast, salmon are not only an
important food and economic resource, they are also a cultural
icon. Salmon recovery is both possible and vital. Only with the
return of abundant, self-sustaining populations of wild salmon
and Steelhead to the Pacific States, can we fully honor tribal
treaties, protect salmon-based communities, and safeguard the
$4 billion in salmon recovery that's already been made in
investments by American taxpayers, and obviously by the Pacific
Northwest electric rate payers over the past 25 years.
In northern California and the Northwest States, salmon are
an indicator of the health of our land, of our streams, and of
our economy. The bill before us today represents an opportunity
to go on the offensive, and restore salmon to areas in which
they have long been gone, and to do that, we have to make sure
that these supporting, competing interests work together.
So, I look forward to working on this bill, and to gain
some additional insight from those testifying today.
As I noted, Senators Feinstein and Senator Boxer are the
sponsors of this legislation, and we welcome them to provide
their perspectives on this bill before the subcommittee.
I know that both of you are pressed for time, but I'd also
like to invite Senator Corker, the ranking member of the
subcommittee, to make his opening comments, and then we will
allow you to make your statements, and obviously, then,
followed by the administration.
So, Senator Corker, thank you very much for joining me at
this subcommittee hearing today.
STATEMENT OF HON. BOB CORKER, U.S. SENATOR
FROM TENNESSEE
Senator Corker. Madam Chairwoman, thank you, and I think
you probably know a little bit more about this subject than I
do, but thank you.
And, it's a pleasure to be here with the San Joaquin Water
Settlement in California, to discuss it, I welcome both of my
esteemed colleagues from California, Senators Feinstein and
Boxer. And thank you for coming to the subcommittee hearing.
I'm pleased to see the parties involved in this case after
18 years of contentious litigation have decided to settle. The
goals of the settlement, to restore and maintain fish
populations, while not adversely impacting water supplies to
long-term water contractors, is commendable.
I recognize the work the witnesses have put into the
settlement, and look forward to hearing from each of you. As
you provide your remarks, I would like to hear you discuss
three issues, and that is, the financial mechanisms needed to
ensure a full settlement, how third-party impacts are going to
be addressed, and how successes will be determined under the
settlement.
Again, I thank you, I thank the witnesses for your
presence, and thank you, Madam Chairwoman, for conducting this
hearing. I look forward to hearing the testimony today.
Senator Cantwell. Thank you, Senator Corker.
Senator Feinstein, and Senator Boxer, again, welcome before
the subcommittee.
Senator Feinstein, would you like to start?
STATEMENT OF HON. DIANNE FEINSTEIN, U.S. SENATOR
FROM CALIFORNIA
Senator Feinstein. Thank you very much. Both of us
appreciate this courtesy. There's an old saying in California,
``Whiskey's for drinkin', and water's for fightin'.'' And
there's no area where this has been more the case than the
future of the San Joaquin River.
This River historically supported large salmon populations,
but since the late 1940's, approximately 60 miles of the River
have dried up in most years. And there have been lengthy court
battles.
The Natural Resources Defense Council and the environmental
community sued the Friant Water Users and the Department of the
Interior. The litigation has gone on for 18 years now.
But a year and a half ago, all of that changed. Judge
Karlton, in the Eastern District of California, ruled that if
the parties couldn't come to a settlement, he would settle it
for them. And, all the parties believe that the judge would
likely rule in favor of releasing much larger amounts of water
from Friant Dam than the settlement requires.
In addition, the judge's imposed solution would lack the
benefit of months of compromise negotiations between the
parties, and other groups not part of the litigation, on how to
restore the River, while preserving the many parties' different
interests.
And so, all of the parties decided--believe it or not--that
a settlement would be in their best interest, and they asked
for my help, and the help of Congressman Radanovich to push
them towards settlement. All agreed the alternative to
settlement would be worse.
Despite all expectations, each side did make concessions.
They did come to an agreement, but the process wasn't finished.
The settlement required Federal implementing legislation to
become fully effective. And, so I invited all of the parties to
the litigation, and other parties who felt their concerns had
not been addressed, back to Washington to hammer out the
details of the legislation.
The negotiations went on for hundreds of hours, over a
period of weeks, last September. They were tough negotiations.
They often went on late into the night. We went over every line
of this legislation. And when it ended, I asked if anybody had
objections over any provision. We went provision by provision.
If they did, then we would discuss and caucus, and come back
with language that everyone could agree on.
And finally, we reached a point where everyone around the
table agreed on the legislation. And then I asked each of the
parties to sign, and indicate that they would support it--both
in public and in private--and they did.
After the voters of California passed Propositions 84 and
1E at the November election, which provided at least $100
million, and potentially hundreds of millions in State funding
for this restoration project, I asked the settling parties, the
State and other congressional sponsors of this settlement
effort to agree to one final modification to the financing
provisions of this legislation.
This final modification which I requested, requires a 50
percent match in non-Federal contributions as a pre-condition
for spending any new Federal appropriations that are authorized
by this bill.
So, we're here today. Here's what the legislation will do.
It will help transform the San Joaquin into a living river, and
ensure that the hardworking men and women in the Friant Service
Area will continue to have a stable water supply.
The legislation indicates how the settlement agreement is
going to be implemented. It involves the Department of the
Interior, the Department of Commerce, the Bureau of
Reclamation, and essentially gives the Secretary of the
Interior the additional authority to: one, take the action to
restore the River, provides the oversight; two, reintroduce the
California Central Valley Spring-run Chinook salmon; three,
minimize water supply impact on Friant water users; and, four,
avoid reductions in water supply for third-party water
contractors.
The parties bridged the gap for one simple reason--it gives
all sides certainty on how the river will be restored, and the
water will be used.
The Natural Resources Defense Council will be able to see
that the San Joaquin River is restored, without further
litigation. The Friant Water Users Authority will know that its
water supply will remain at manageable level. The third-party
water contractors will be able to avoid all but the smallest
impacts as a result of the settlement, except on a voluntary
basis. And the State of California now has partners in efforts
to restore the river, improve water supply and protect
threatened species.
Around the table were my friend and colleague, Senator
Barbara Boxer, and when she could not attend, she had her staff
present, I believe her Chief of Staff, present at all meetings,
Representatives George Radanovich, Richard Pombo, Dennis
Cardoza, Jim Costa, and Deven Nunes, representatives of the
State of California, and the Federal Government, the Friant
Water Users Authority, the Natural Resources Defense Council,
as well as numerous third-party water contractors from the
Central Valley--they were all there. And this is the first time
I can remember five members of the House of Representatives
actually being there for virtually most of all meetings.
This indicates how critical this issue is to the entire
Central Valley. The negotiations, as I said, went late into the
evening, but each side came together in good faith, and
compromised on a number of key issues. And, in the end, the
Natural Resources Defense Council, the Friant Water Users
Authority, the State of California and all third parties have
agreed to support the settlement and the legislation, and they
pledged to do what's necessary to see that it's approved by
Congress.
I believe the parties involved in these negotiations came
up with a workable solution. And I believe the parties will
continue to work in good faith to address any remaining water
supply reductions for Friant.
At my request, Friant has prepared a 76-page list of water
supply project options. These include projects to build
groundwater banking and recharge facilities. To construct
facilities to link the separate water distribution systems of
the Friant district, and to increase the capacity of major
water conveyance facilities, for the projects that need Federal
funding. As an appropriator, I stand by to do what I can to
help, and I know my colleague, Senator Boxer will, as well.
We expect many projects like these to be in place before
full restoration flows beginning in 2014. But here's the risk--
if we don't pass this legislation, and the settlement is not
enacted, then the future of the San Joaquin won't be charted by
the people who use the water, it will be decided by a judge,
who will demand that far more water be released than is
envisioned by the current settlement agreement--with far less
certainty, this is the key--over how that water will be used.
Therefore, if the judge just releases water, there can be
no certainty that it can be planned at times, and the flows in
a manner which will accommodate the salmon, as well as water
users.
So, I'm here to ask you to pass this legislation. Again, I
repeat, it is a settlement between parties, it is not
legislation that Senator Boxer or I sat down to write to solve
a problem--we may have solved it differently, I don't know.
But, what I do know is that 18 years of court litigation is too
long, and right now you have representatives from the parties
of issue that are here today--this is not an easy thing to do,
it's not an easy thing to do for these people to compromise,
but they have done it, and they've done it with the equal
interests of their farming interests, the water users'
interests, and the interests of returning this spring-run
salmon.
Senator, you asked, what guarantee is there? What oversight
will there be? There is no real guarantee, but the Department,
the State and the Federal Government have the ability to
maintain some oversight over this, to see that it is done, to
learn from mistakes in water release, and to try to regenerate
this important salmon run.
We believe it can be done, and we believe it's going to
take some careful planning, some experimentation, but one thing
I really do believe, after sitting at that table for I don't
know how many hours, is that there is truly goodwill now, among
these communities. And so we have the opportunity to do
something which has never been done before.
I thank you, and I appreciate your consideration.
And, may I be excused? I have a Data Breach bill on markup
in Judiciary.
Senator Cantwell. Thank you, Senator Feinstein, we
appreciate you being here on this important legislation, and I
know that you do have to go to a markup of your own bill in
another committee, so we'll excuse you, unless Senator Corker
has a comment or question.
Senator Corker. It was outstanding testimony, and it sounds
like you've done an outstanding job in reaching settlement. I
thank you for coming before us today.
Senator Feinstein. Well, thank you, I appreciate that,
thank you.
I'll turn it over to my colleague.
Senator Cantwell. It's a pleasure to have the chairman of
the Environment and Public Works Committee to testify before
the Subcommittee on Water and Power, so, Senator Boxer, thank
you for being here.
STATEMENT OF HON. BARBARA BOXER, U.S. SENATOR
FROM CALIFORNIA
Senator Boxer. Thank you. I want to say to my friend,
Senator Feinstein, just for one moment before she leaves, I
want to say publicly, a great big thank you to her, for her
patience in sitting at that table. And just her focus on
achieving this, I was so glad to be her assistant in this
matter, and I'm so thrilled to be a co-sponsor of the
legislation, and I'm very pleased to be there today. So, go
forward and do good work.
But this really was something to see, because as the
Senator said, in our State when you mention water, people just
sit up. If you look at how our State grew, and all of the water
wars, you would understand it, and we have many more that will
come before you at another day, which I won't go into now.
I want to thank both of you Senators for being so kind to
allow us to present this to you. I also want to thank Senators
Bingaman and Domenici, so if I might do that, and then I will
summarize. Mine is a lot briefer, but I do have some pictures
to show you, which I think will be interesting.
The San Joaquin River Restoration Settlement Act is a great
bill for California's environment, its economy, its quality of
life, and as you heard, it's a result of years of debate,
compromise, lawsuits, wranglings, everything. And, when I was
asked at those meetings, what we saw was, you know, people who
just can't see eye to eye, finally just force themselves to see
eye to eye. The environmental community want to restore this
into a great river again, and the agricultural community, who
depends on the water for livelihood.
So, I want to show you the Friant-Kern Canal--this is an
152-mile long structure that carries water in a southerly
direction from Millerton Lake to Kern River. The Friant-Kern
Canal, along with the 36-mile long Madera Canal, provide 1
million acres of farmland in central California with a vital
source of irrigation water.
The gross agriculture production of these lands in
California's Central Valley exceeds $3 billion annually, so
water is the lifeblood. In addition, it also provides the
essential water to cities and communities within the project
area.
And then, of course, I'm going to show you something you
know very well--a grape field--this is the produce that
Americans enjoy every day, but there are consequences to
diverting so much water to agriculture. Dry rivers--this dry
spot is just one of what averages to be 60 miles each year that
runs dry on the San Joaquin, and that's right, one of
California's great rivers, its second largest, runs dry for
one-fifth of its total length.
It's meant that the once-great salmon runs of the San
Joaquin no longer exist, and it's hurt fisherman and Indian
tribes, and recreational business, and our way of life. But the
bill we're considering is going to give the San Joaquin a
second chance, and again, try to meet everyone's needs.
This river was born in the midst of the granite peaks and
verdant forests of California's high Sierra Nevada. The great
stream reaches all the way to the Delta, and the San Francisco
Bay. The San Joaquin River is very much a part of our great,
rich natural heritage.
Fishing--there are many parts of the river that are
beautiful, we have the opportunity to make it a living river,
along its entire length.
So, colleagues, as you've heard, this bill is a result of
decades of struggle, and countless hours of negotiations. It
demonstrates that agriculture, environmentalists and interested
stakeholders can work together to do good things for our
community. A health and revitalized San Joaquin River will
prove that an agricultural economy can exist side-by-side with
a healthy environment. And, it has been difficult to get where
we are today, but I think we're at a very key moment here, with
the help of Congress, we can move forward.
And, I think, Senator Corker, you have a very fair
question. And I would say, now that you know a little bit more
of the background and the struggles, and the fact that the
Court is ready, willing and able to impose a settlement, that
acts as--I think--an enforcer. Knowing what could happen is far
worse than what we have here, and what we can do here.
So, I look forward to working with you on this committee,
with Senator Feinstein, and all of the stakeholders, our
colleagues in the House, to seize this chance to make this
great vision a reality. Again, I thank you so very much. And as
far as technical questions of the bill, I would ask that those
be directed to Senator Feinstein's staff, because as far as
technically, I don't have the--I didn't write it, I am the co-
sponsor of it, so I don't think I can answer technical
questions.
But, on the big picture, just know how hard we worked to
get this where it is. Know how hard it was for the
stakeholders, who really have a lot of emotions at stake in all
of this, whether they're farmers, and you know, they know the
work they do and how they need the water, or the recreational
industry, the environmentalists--it's very tough, but this is a
wonderful achievement, I think, by Senator Feinstein, and I am
very honored to just be a helper in the whole thing, and I hope
you can also help us to make this become a reality.
Thank you very much.
Senator Cantwell. Thank you, Senator Boxer, for your
testimony, and I don't know, Senator Corker, if you have any
questions or comments for Senator Boxer?
Senator Corker. I think any technical questions, as you
mentioned, we'd ask Senator Feinstein's staff. Thank you for
coming before us, and it sounds as if you all have got a great
relationship between the two Senators, and----
Senator Boxer. We do.
Senator Corker. And a great resolve for the citizens of
California. So, thank you for coming.
Senator Boxer. Senator, thank you so much.
And, Madam Chairman, thank you very much.
Senator Cantwell. Thank you, Senator Boxer.
We'll now go to our first panel, which is going to be Mr.
Limbaugh, the Assistant Secretary for Water and Science at the
Department of the Interior.
Welcome Mr. Limbaugh, we appreciate you being here this
morning to give testimony in regards to S. 27.
STATEMENT OF MARK LIMBAUGH, ASSISTANT SECRETARY FOR WATER AND
SCIENCE, DEPARTMENT OF THE INTERIOR
Mr. Limbaugh. Thank you, Madam Chairman. Senator Corker,
Madam Chairman, members of the subcommittee, I appreciate the
opportunity to be here today to discuss S. 27. My name is Mark
Limbaugh, I'm the Assistant Secretary of the Interior for Water
and Science. I have a written statement I'd like to ask be
submitted for the record, and just give some oral comments,
thank you.
The Department supports S. 27. As you know, this bill
implements a settlement of an 18-year old legal dispute, NRDC
v. Rogers, et al. Through the good faith efforts of the
settling parties, the Natural Resources Defense Council, Friant
Water Users Authority and representatives of the Federal
agencies, and with the help of Senator Feinstein and Senator
Boxer, Representative Radanovich and the other representatives
of the California delegation, an opportunity exists to resolve
this litigation in a way that will restore the San Joaquin
River in California, and increase water supply certainty to
farmers in the Friant Division, Bureau of Reclamation Central
Valley Project.
The settlement agreement is based on two goals: to restore,
and maintain fish populations in good condition in San Joaquin
River, below Friant Dam to the confluence of the Merced River,
and to reduce and avoid adverse water supply impact to all of
the Friant Division long-term contractors that may result for
the flows provided for in the settlement.
S. 27, in turn, directs that funds are to be used to meet
both the water management, and restoration goals outlined in
the settlement. The bill directs the use of the Friant
surcharge, annually paid to the CBPIA restoration fund to
implement the settlement. This surcharge is expected to average
about $8 million per year, or $160 million over the 20 year
period.
In addition, up to $2 million annually of other CBPIA
restoration fund payments from the Friant users would also be
available for settlement purposes.
S. 27 also dedicates the capital component of water rates
paid by Friant Division water users toward implementation.
Worth roughly $220 to $240 million over the 20 year period.
Under this bill, these funds would be deposited in a newly-
established San Joaquin River Restoration Fund, to pay directly
for implementing the settlement. In addition, S. 27 authorizes
up to $250 million of Federal appropriations to contribute
toward implementation, but as Senator Feinstein pointed out,
requiring an equivalent non-Federal cost share.
The State of California's recent passage of Propositions 84
and 1E should provide about $200 million additional dollars in
State funds for restoration.
Having said all of this, the total cost and the specificity
of these actions still contain significant uncertainty, and
this is a source of concern to all parties. We must also
remember that implementation of the settlement, including this
authorization legislation does not imply a limitless Federal
commitment to funding implementation costs.
Now, we recognize the importance of addressing unintended
impacts of third parties in the implementation of the
settlement, but several steps have been taken to involve them
today. Water users on the west side of the Central Valley,
users of tributaries of the San Joaquin River downstream of
Friant Dam, the exchange contractors, and other parties
concerned about river management issues reviewed the settlement
documents before they were executed.
Numerous briefings were held during 2006, where the
settling parties explained the proposal in detail, responded to
questions, and listened to comments. The settling parties made
modification to some of the documents, and provided the third
parties with detailed, written responses to their comments. In
addition, language was added to the legislation before it was
introduced to strengthen protections for third-party impact.
Reclamation has worked closely with a group of third-
parties on a Memorandum of Understanding which was signed this
last February. It articulates their concerns, and commits
Reclamation to work closely with them throughout the
implementation of the settlement.
Finally, in supporting S. 27, the administration remains
committed to implementing other salmon restoration programs
along the Pacific Coast. In particular, we will still continue
to work with the State of California and the Hoopa Valley and
Yurok tribes to implement the Trinity River Restoration Record
of Decision.
Madam Chairman, this concludes my testimony, and I'd be
happy to answer any questions that you may have, thank you.
[The prepared statement of Mr. Limbaugh follows:]
Prepared Statement of Mark Limbaugh, Assistant Secretary for Water and
Science, Department of the Interior
Mr. Chairman and members of the Subcommittee, I appreciate the
opportunity to appear before you today to discuss S. 27, the San
Joaquin River Restoration Settlement Act. S. 27 provides authorization
and funding for the Secretary of the Interior to implement the terms
and conditions of the Stipulation of Settlement (Settlement) dated
September 13, 2006, in Natural Resources Defense Council, et al. v.
Kirk Rodgers, et al., which was approved by the U.S. District Court on
October 23, 2006. The Department supports S. 27.
During the eighteen years since this case was filed, relations
between stakeholders in the San Joaquin River basin, including the
State of California, Reclamation water users, environmentalists, and
Federal agencies, have often been contentious. However, through the
good faith efforts of the ``Settling Parties,'' namely Natural
Resources Defense Council (NRDC), Friant Water Users Authority (FWUA),
and representatives of the Bureau of Reclamation, Fish and Wildlife
Service, National Marine Fisheries Service, and the Department of
Justice for the United States, an opportunity has been presented to
resolve this litigation in a way that will both restore the San Joaquin
River and increase water supply certainty to farmers in the Friant
Division. My testimony today will provide an overview of the Settlement
and the importance of this authorizing legislation.
brief background
The Bureau of Reclamation has water service contracts with 28
entities made up of cities and water districts of various sorts that
rely on the water supply from the Friant Division, one of the key
features of the Central Valley Project. Friant Dam is located on the
upper San Joaquin River, where it forms Millerton Lake, and became
fully operational in the late 1940s. Our understanding is that about
15,000 farms rely on Friant water supplies.
Except for flood-control operations, Friant Dam/Millerton Lake is
operated to meet minimum downstream flow requirements and maximize
water deliveries. As a result, approximately 60 miles of the 153 river
miles between Friant Dam and the confluence of the Merced River have
been dried up in most years, except during seasonal flood control
releases. Prior to construction of Friant Dam, the stretch of river
downstream of the dam supported a healthy fishery, including salmon
runs, which the dam effectively eliminated.
In 1988, a coalition of environmental groups led by NRDC filed suit
challenging the federal defendants' compliance with the National
Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) in
connection with the renewal of the long-term water service contracts
between the United States and the Central Valley Project, Friant
Division contractors. Most of the Friant Division long-term contractors
intervened as additional defendants.
Through amended complaints, the plaintiffs subsequently included a
claim asserting that pursuant to Sec. 8 of the Reclamation Act of 1902,
the federal defendants must operate Friant Dam in accordance with
California Fish and Game Code Sec. 5937. California Fish and Game Code
Sec. 5937 requires the owner or operator of any dam in California to
allow sufficient water to flow through or around the dam in order to
keep the downstream fishery in ``good condition.'' During the initial
phase of the litigation, the District Court ruled that the contracts
were not entered into in violation of NEPA requirements, but held that
approval of the renewal contracts violated procedural requirements of
the ESA. The District Court did not rule on the Sec. 5937 claim. On
June 24, 1998, the Ninth Circuit Court of Appeals affirmed most of the
District Court's rulings but remanded to the District Court the issue
of the applicability of California Fish and Game Code Sec. 5937 to the
operation of Friant Dam.
From 1998 to 2003, without direct involvement by Federal
defendants, FWUA and NRDC attempted to settle the remanded issue. In
2003, those discussions were terminated, and on July 19, 2003, the
plaintiffs amended their complaint by adding the Secretary of Commerce
and the National Marine Fisheries Service as additional defendants and
adding claims asserting that the long-term renewal contracts do not
conform to the requirements of the Central Valley Project Improvement
Act (CVPIA). In an Order issued on August 27, 2004, Judge Karlton
concluded that Reclamation violated California Fish and Game Code
Sec. 5937, and scheduled a trial on the issue of remedy for that
violation.
During the summer of 2005, at the request of Subcommittee Chairman
George Radanovich and Senator Dianne Feinstein, FWUA and NRDC
reinitiated settlement discussions. In November 2005, the Federal
government was invited into those discussions, and in spring 2006, the
State of California was also approached about the negotiations since
the negotiators foresaw that the State would have a significant role in
the implementation of any settlement. On September 13, 2006, the
Settling Parties filed the Settlement, including proposed Federal
implementing legislation, with the Court. The Settlement Agreement is
based on two goals and objectives:
1. To restore and maintain fish populations in ``good
condition'' in the main stem of the San Joaquin River below
Friant Dam to the confluence of the Merced River, including
naturally reproducing and self-sustaining populations of salmon
and other fish.
2. To reduce or avoid adverse water supply impacts to all of
the Friant Division longterm contractors that may result from
the Interim Flows and Restoration Flows provided for in the
Settlement.
restoration goal
The Settling Parties have carefully studied San Joaquin River
restoration for many years and as part of the Settlement have
identified the actions and highest priority projects necessary to
achieve the restoration goal. These include among others: expanding
channel capacity, improving levees, and making modifications necessary
to provide fish passage through or around certain structures in the
river channel. Also called for are year-round flows in the San Joaquin
River, including those areas that have been without continuous flows
for decades. This action would be taken to restore and maintain fish
populations in good condition, including naturally reproducing and
self-sustaining populations of Chinook salmon and other fish in the
153-mile stretch of the river between Friant Dam and the confluence of
the Merced River.
water management goal
Recognizing that the Settlement's Restoration Flows will reduce the
amount of water available for diversion at Friant Dam, the Settlement
also includes provisions to protect water availability for the 15,000
farms that currently rely on these supplies. One million acres of some
of the most productive farmland in the country as well as many towns
and cities along the southern San Joaquin Valley's East Side receive
all or a major portion of their water supplies from the Friant
Division. The Settlement recognizes the importance of this water to
those farms and calls for development of water management solutions to
provide these users water supply certainty for the long term. Such a
program would include a Recovered Water Account to make surplus water
available at a reduced rate to farmers who have contributed water to
the Restoration Flows and a flexible combination of recirculation,
recapture, reuse, exchange and/or transfer programs. Additional
groundwater banking may also be explored.
phased approach
Restoring continuous flows to the approximately 60 miles of dry
river will take place in a phased manner. Planning, design work, and
environmental reviews will begin immediately, and interim flows for
experimental purposes will start in 2009. The flows will be increased
gradually over the next several years, with the goal of reintroducing
salmon by December 31, 2012.
The flow regime called for in the Settlement continues unchanged
until 2026, with the U.S. District Court retaining jurisdiction to
resolve disputes arising under the Settlement.
After December 31st, 2025 the court, in conjunction with the
California State Water Resources Control Board, could consider any
requests by the parties for changes to the Restoration Flows.
importance of legislation
As the implementation of this historic Settlement begins, I can't
emphasize enough how important it is for Federal authorizing
legislation to be approved and signed into law. Passing this
legislation soon will demonstrate the kind of support and commitment
from the Federal government that is necessary to prove we are serious
about making this settlement and its twin goals a reality. Some initial
funding and authority exists for Interior agencies to work with our
State partners to initiate planning and environmental review
activities, which we have already begun to do. Without authorizing
legislation such as S. 27, however, we lack sufficient authority to
implement the actions in the Settlement. Moreover, beginning in fiscal
year 2008 we will have insufficient funding to stay on the aggressive
schedule called for in the Settlement to complete the necessary
planning and environmental reviews for initiating construction
activities and ultimately restoring flows into the San Joaquin River
from Friant Dam. Such delays would send the wrong message regarding the
Federal support for implementation.
restoration funding
The proposed legislation is consistent with the recommendation in
the Settlement regarding funding sources to support implementation of
these projects, including the use of current payments from farmers and
cities served by Friant Dam, redirection of Federal funds from the
Reclamation Fund, state bond initiatives, and authorization for
additional Federal appropriations as long as there is a non-Federal
cost share. Funds are to be used to meet both the Water Management and
Restoration goals.
More specifically, the proposed legislation, consistent with the
Settlement, allows for the continuation of and the dedication of the
``Friant Surcharge,'' an environmental fee charged pursuant to the
Central Valley Project Improvement Act (CVPIA) of $7 per acre foot of
water delivered to Friant Contractors. This fee is expected to average
about $8 million per year ($160 million over the 20-year period). Up to
$2 million annually of other CVPIA Restoration Fund payments made by
Friant water users under the CVPIA ($40 million over the 20-year
period) would also be directed for implementation of the Settlement.
The legislation also calls for the dedication of the capital
component of water rates paid by Friant Division water users to the
Settlement implementation (approximately $220-240 million over the 20-
year period). These are funds that at present go to the Reclamation
Fund in the U.S. Treasury to repay the capital costs of construction in
the Friant Division. Under this bill, these funds would be deposited
into a newly established San Joaquin River Restoration Fund to pay
directly for implementing the Settlement. The Settlement provides that
the monies contributed to the Settlement from the Friant Surcharge and
capital repayment obligation may be used to fund bonds, guaranteed
loans or other finance instruments issued by agencies or subdivisions
of the State of California.
In addition, the legislation authorizes up to $250 million of
additional Federal appropriations to contribute to the implementation
and requires a non-federal cost-share of an equivalent amount.
Funding by the State of California will also support the
Settlement. Last November, State propositions 84 and 1e were passed by
the California voters and should provide about $200 million of State
bond funds for projects that will directly contribute to the
restoration efforts.
Although the Settling Parties have agreed on a suite of actions to
be taken to restore flows and salmon runs, the total cost and the
specificity of those actions still contain significant uncertainty. The
Parties anticipate that a multi-agency technical team established to
implement the Settlement would develop additional design details
typically found in a Feasibility-level study needed to take the
proposed actions. The Parties also anticipate that the estimated costs
projected to be required to meet the restoration goal (i.e. $250
million-$800 million) would be further refined during the initial phase
of implementation.
This uncertainty in project costs has been a source of concern to
both the Administration and the State of California. As project
partners, we realize that the Federal appropriations proposed in this
legislation, in addition to the funding sources already described, may
be integral to implementing the settlement. However, the Administration
is not willing to commit to seeking any particular level of funding
until further planning and engineering studies are completed that
identify with more certainty the total estimated cost of this Program.
All the parties to the Settlement must also realize that implementation
of this settlement, including this authorizing legislation, does not
imply a limitless Federal commitment to fund whatever it costs.
status of implementation
As already mentioned, some initial funding and authority exists for
Interior to work with our State partners to initiate planning and
environmental review activities, and we have been doing just that.
Interior, through Reclamation and the Fish and Wildlife Service, is
working with the other Settling Parties, the State of California, the
affected Third Parties (discussed below), and other Federal agencies
regarding the implementation process and other related matters. A
multi-agency Program Management Team including California Dept. of
Water Resources, California Dept. of Fish and Game, and U.S. Fish and
Wildlife Service, National Marine Fisheries Service, and Reclamation
have begun efforts to initiate an implementation process, including
public outreach, planning, design, and environmental reviews. This
multi-agency team is developing a Program Management Plan (PMP),
scheduled for completion this Spring, that will describe the
implementation process, the scope and timeline of the activities,
studies to be completed, and the process to involve and receive input
from interested third parties as well as the broader public. The PMP
will address strategies to meet both the Restoration Goal and the Water
Management Goal described in the Settlement. As a further demonstration
of the Administration's commitment to implementing this settlement, the
President's FY 2008 Budget for Reclamation presumes a re-direction of
capital repayment receipts away from the Reclamation Fund and into the
newly-created San Joaquin Restoration Fund; it also presumes the
allocation $7.5 million of funds from the CVPIA Restoration Fund to the
San Joaquin Restoration Fund. However, these actions in the Budget
presume enactment of the legislation.
third parties
We fully recognize and appreciate the importance of involving
affected third parties in the implementation of the Settlement, and
several steps have been taken to meaningfully involve them in the
development and implementation of the Settlement. Prior to the
execution of the settlement documents, copies of the draft documents
were made available in Sacramento, Fresno, and San Francisco for review
by interested third parties, subject to confidentiality agreements.
Representatives of water users on the west side of the Central Valley;
water users from tributaries to the San Joaquin River downstream of
Friant Dam; the Exchange Contractors, who receive water from the Delta
in lieu of water they would otherwise divert from the San Joaquin River
below Friant Dam; and other parties concerned about river management
issues (collectively, ``Third Parties'') took the opportunity to review
the Settlement documents. In addition, the Settling Parties conducted
numerous briefings throughout the Central Valley, which were attended
by approximately 70 Third Party representatives. At those briefings,
the Settling Parties reviewed the proposed Settlement in detail,
responded to questions, and listened to comments. Following those
briefings, a number of entities submitted written comments on the
Settlement documents. Their primary areas of concern were related to
the ESA take provisions, operation & maintenance, funding, meaningful
participation in implementation of the program, and water rights. After
consideration of comments from Third Parties, the Settling Parties made
modifications deemed appropriate to some of the settlement documents
and further provided the Third Parties with a comprehensive written
response to their written comments. In addition, language was added to
the legislation before it was introduced to strengthen protections for
Third Party interests.
Since the Settlement was signed and the legislation was drafted,
the Bureau of Reclamation has been working closely with a group of
Third Parties with downstream concerns on a Memorandum of Understanding
(MOU), which was reviewed by the Settling Parties and was signed on
February 26, 2007 by Reclamation and the Third Parties involved.
The MOU articulates the interests of these Third Parties and agrees
that Reclamation will work closely and involve the Third Parties
throughout the implementation of the Settlement on matters pertaining
to their interests.
In supporting this settlement, the Administration remains committed
to implementing other salmon restoration programs along the Pacific
coast. The San Joaquin settlement that would be implemented by S. 27
provides a model of how stakeholders can come together to rebuild
historic salmon populations and restore communities. We are open to
exploring how this model could be used to help implement other similar
restoration programs.
conclusion
This monumental agreement ends an 18-year legal dispute over the
operation of Friant Dam and provides increased certainty to Friant
Division farmers who rely on CVP water deliveries while returning flows
and salmon runs back to the San Joaquin River. S. 27 would provide the
federal authorization and funding needed to move into implementation.
We believe that this historic agreement is the start of a truly
collaborative process that will result in a restored river for all. I
strongly recommend that this committee act swiftly on this legislation
to allow the Federal government to move forward without delay and to
send a message of support to the Parties and our implementing partners.
Mr. Chairman, this concludes my testimony. I would like to
reiterate my appreciation to the subcommittee for your interest in this
settlement. I would be happy to answer any questions at this time.
Senator Cantwell. Thank you, Mr. Limbaugh, for that
testimony.
You indicate that the feasibility level designs have not
been done on actions needed to restore the salmon runs,
particularly on channel restoration. In thinking about the
funding, obviously, this is something that, I think comes to
mind on this. Is it clear that the funding in the bill, which I
think is about $650 million of Federal, and $250 million of
State dollars, will be sufficient to complete the activities
that are required in the settlement?
Mr. Limbaugh. Madam Chairman, we believe so. There is a
range of possibilities. The State has looked at a total cost of
the settlement and the legislation basically comports to within
that range of total cost. There are many studies that are out
there that are actually record in the litigation that could be
used to look at further designs, further studies, and looking
at implementing restoration and water management goals that
contemplate it by itself.
Senator Cantwell. If additional funding is necessary to
complete the actions of the settlement and such funds aren't
provided, will there be a breach in the settlement? How do we
resolve that?
Mr. Limbaugh. Senator, the settlement contemplates the
direct funding approach, taking existing funds that are being
paid for by California parties and putting them into a
Restoration Fund, so from the outset, the expectation is that
we will have ``X'' number of dollars, and as I highlighted in
my testimony, about $8 million a year from the surcharge, and
about, between $10 million and $12 million a year from the
capital repayment to actually put on the grant, and any
additional funds, I would think, as time arises, we have agreed
to allow the settlement to--and the legislation to include an
authorization of up to $250 million of Federal funding through
appropriations process to be matched by other non-Federal
funds.
It is our understanding that this should be enough funding
to accomplish the goals of the settlement.
Senator Cantwell. Have you been in discussion with NOAH and
Fish and Wildlife Services, and California Fish and Game about
evaluations of the Restoration Plan? About flows and
restoration habitats?
Mr. Limbaugh. Senator, it's my understanding that Fish and
Wildlife Service has been involved from the start, it's also my
understanding that NOAH Fisheries has been involved to the
extent that they could be, and as far as California Fish and
Game, I think so. So, we have been involved with all of those
agencies, and throughout this process in looking at the
possibilities of implementing, so----
Senator Cantwell. How would you characterize the Interior
Department's view of the settlement in the successful results
that you think might be achieved? I mean, are you very excited
about the settlement, you think that what's been outlined here,
you're very enthusiastic about what you think the results of
that would be and returning, creating a salmon fishery again?
Mr. Limbaugh. Well, Senator, that's a very good question
and I believe we are excited about the settlement.
Senator Cantwell. I mean, if you had to give it a grade,
what would you give it?
Mr. Limbaugh. Well, we don't see these kinds of
opportunities every day. You have an 18-year old litigation
risk that has been out there, parties fighting amongst
themselves for many years, that does not provide for the
certainty that people need to go on with their lives, and to
make investments and to look to the future in terms of how
their environment's going to be for their grandchildren and
their great-grandchildren.
And so, when you look at that opportunity that we have to
actually implement something that people have worked out on the
ground, and that can have a vision, that can work together, and
get rid of this black cloud that hangs over some of the water
users, or the other side, the other parties to the settlement
terms of restoring the river, I think moving forward and having
some positive relations and positive benefits to this basin and
to the State of California, I think it's a grade A.
Senator Cantwell. And, in regards to salmon recovery--I
guess I'm asking as someone representing the Department of the
Interior and in consultation with these other Federal agencies,
and obviously, you know, wearing my Pacific Northwest hat, we
always want to make sure that the agencies are fighting for
good science, and looking at these plans as they believe that
they will be successful. And so, I very much appreciate people
coming together, as they have, but I want to understand how
enthusiastic you are about the requirements, or the
implications as it relates to salmon recovery.
Mr. Limbaugh. Well, the recovery of the fishery, Senator,
is part of the uncertainties that I've mentioned. To take a
river that's been dry for 60 years, or 40 years--however long
it's been, you know, in and out, intermittently dried up.
It'll be interesting to see whether we can get a viable
fishery. But the point is, is that we're working towards that
goal, we do have the fisheries agencies involved, I believe
they're excited about this settlement, and I think it's
basically a much better approach than what we have now. And so,
I think, if you look to the possibility of restoring a salmon
run on the San Joaquin, this settlement gets us a lot closer
than any other effort that's out there.
Senator Cantwell. I do have some more questions, Senator
Corker, do you have any questions?
Senator Corker. I just have a couple, thank you.
You talked about the opportunity that this is, and it does
sound like a unique opportunity, I also know after being around
here a few months, there are opportunities every day to fund
things. Is the administration willing to budget for the amounts
of money necessary to see this through?
Mr. Limbaugh. Senator, the legislation contemplates a
direct funding stream that's there. While agreeing to further
appropriations, we certainly at this point do not agree to any
further budget that's dependent on the necessary cost-sharing
requirement that's in the appropriations language.
But, the directed funding, we believe, is enough to get
this program off the ground, it's something that's already
going to the Treasury that would simply be directed into that
local area to restore the River, and accomplish water
management goals.
Senator Corker. Well, I guess I'm a little confused--I
understand about the direct payments, but my understanding was
also you all were needing to set aside another $10 or $15
million to go with the State and local match--is that not the
case?
Mr. Limbaugh. Well, like I say, Senator, it depends on
whether the matching dollars are there, I think that's the
number one thing. If they are, and the need is there, then we
would certainly take a hard look at budgeting for that funding.
But, at this time, we only contemplate the directed funding
to begin this process of getting this restoration underway. In
other words, I can't commit to future budgets, but I can commit
to supporting the terms of the settlement, and supporting the
authorization of the settlement through the legislation.
Senator Corker. Do you contemplate, then, the future
funding will be necessary? This is all--obviously, authorizing
legislation, but give us your view of what will occur over the
next 10 or 15 years?
Mr. Limbaugh. Well, the contemplation that the legislation
looks at is a combination of some innovative financing, using
revenue streams to float bonds, or to look at getting some up
front funding to start the restoration process, so that would
kick-start this whole program, rather than relying on just so
much a year.
And so, as we go forward, we would have to look and see
what the needs would be. I would think we're looking at--
probably within 5 years, there may be a need for additional
funding. But, it depends on whether that matching funding is
there. Again, it's the kind of thing that we would watch, we
were going to be integrally involved in the Restoration efforts
through the Bureau of Reclamation, the Fish and Wildlife
Service, and through the State of California, working together
to implement this settlement. We would look forward to those
kinds of decisions in the future, to do this.
But, at this time, we believe the directed funding is
enough to get this thing kick started.
Senator Corker. Just one more question--if you would, just
briefly describe the tools that you all have available to make
the water available to the 15,000 farms that are adjacent to
the river? Talk to us a little bit about the flexibility you
use to make that available, and also cause it to be a place for
salmon?
Mr. Limbaugh. Well, Senator, the legislation and the
settlement contemplates a water management goal study to look
at what are the best ways to minimize the impact to the water
users in the Friant Water Users Authority from the use of water
agreed to in the settlement to be used for river restoration
and the salmon fishery. And, we would certainly look at a wide
variety of projects--I know Senator Feinstein mentioned that
she directed the Friant Water Users to come up with a report
that highlighted, I guess, over 60 is what she said--projects
that could be used to minimize the impact or recycle, restore
that water to the farmers for their use.
Some of the tools that I'm familiar with are water banking,
where you would actually use excess flood flows to bank water
in the ground, and then pump it back later when you need it,
others are conservation measures, others are management and
technology measures that could be used to circulate water
throughout that project, where it makes sense, and be able to
utilize that water more efficiently and more effectively, in
minimizing the impact of the use of the additional water for
the river restoration.
So, those are the kinds of tools that I'm familiar with, I
know that Friant Water Users have an extensive list, we would
certainly be taking that list under advisement as we look to
studying this effort, and studying the water management goals,
come up with some that are doable, that are cost-effective, and
that will work to make this settlement a sustainable
settlement.
Senator Corker. Thank you. It sounds as if--I know this is
a very, very complex issue and it's taken a lot of years and
great effort by the Senators and others to work this out, it
sounds very much like it's kind of a work in progress, and a
lot of it will be determined as it moves ahead, is that
correct?
Mr. Limbaugh. Senator, yes, I think it is a work in
progress, I also look at it as an opportunity to bring, to help
keep the parties together, to move forward together, to have a
vision together that will get us out of the courts, and into
managing the resource for the benefit of the future
generations, for the benefit of the fishery, and for the
benefit of those farm families that are under the gun right now
in terms of where the court seems to be going.
So, I do believe that it will be a work in progress, as
many settlements are, but I tell you, it's much better pathway
to go than to continue to duke it out in court.
Senator Cantwell. Thank you, Senator Corker, very much.
We've had a vote that started a few minutes ago, and so
we're going to try to wrap up this panel and then have a 15-
minute recess before we start the next panel, but if I could,
Mr. Limbaugh, get you to just give me an idea on a couple of
things, as succinctly as you can, that I can cover, but--you
were just discussing the water management plan, and obviously,
there is going to be reduced water supply. Do you think that we
have the right plan for the substantial part of the shortage
that's going to occur, you know, in the Friant Water Users
area?
Mr. Limbaugh. Senator, I think the settlement contemplates
the plan to be started once the settlement and the legislation
is complete, but we do have a head start with the work that the
Friant Water Users have done, the Bureau of Reclamation
certainly has some studies from the past that have looked at
how they could better manage water in the Friant unit----
Senator Cantwell. But the Department of the Interior
believes that there is enough there for a mitigation plan? You
think it'll be mitigated?
Mr. Limbaugh. The study is there to be done, I believe that
the mitigation can be accomplished with the tools that we've
noted.
Senator Cantwell. Okay, and what about the Hoopa Valley
Tribe? Is that the correct pronunciation?
Mr. Limbaugh. Yes.
Senator Cantwell. Is it your view that S. 27 raises a
conflict of interest between the Federal trust responsibility
for Trinity River fisheries in the San Joaquin settlement?
Mr. Limbaugh. No, I don't believe so. We continue to fund
the efforts on the Trinity, we have looked at both the
Restoration Fund, and the Water Related Resources Account to
fund those efforts on the Trinity, and we continue to be
committed to implementing the Record of Decision on the
Trinity, so, they're really two separate projects. Obviously,
funding is tight, we have to do with what we have to do with,
but we will certainly work very hard to ensure that the Trinity
River Record of Decision is completed.
Senator Cantwell. Okay, and in addition to S. 27, is the
administration open to using surplus Reclamation Fund revenues
to meet the growing number of critical water needs in the West?
Mr. Limbaugh. Well, Senator, the Reclamation Fund is
controlled by the Congress, and----
Senator Cantwell. Your opinion?
Mr. Limbaugh. Pardon me?
Senator Cantwell. In your opinion, do you think we should
use those funds for the various water needs.
Mr. Limbaugh. My opinion doesn't count in this instance,
Senator.
Senator Cantwell. Well, I think this is an important issue,
we're probably going to have a follow-up hearing on this. But,
I think there are critical water needs throughout the West, and
how we can best meet those needs, this obviously shows you what
happens when we don't plan on a broad basis.
And, obviously, no one wants to say that the solutions to
these issues are many years of conflicts, and then settlement.
So if there are ways that everybody can work on the front end
of the problem, knowing what we're facing, and maybe some
resources to do that.
Sitting on the Energy Committee now for several years, it
always amazes me every time a water bill is brought forth,
every member of the committee participates with their own
examples, and frustrations of what's happening in their areas.
So, we'll look forward to having you back, maybe with more----
Mr. Limbaugh. Senator, I just want to add--I look forward
to working with you on that, because I think those are very
important issues and certainly we need to work together on
trying to figure out a pathway forward on a lot of those
issues.
Senator Cantwell. And just as succinctly as you can say--
what happens if we don't pass this bill? Obviously, we're
saying that the implications of not doing this this year are
severe, so----
Mr. Limbaugh. Well, Senator, certainly time is of the
essence on the settlement, to get it going. It's been 18 years.
I'm not sure how the settling, other settling parties feel,
you'll have to ask them, but in terms of not passing the bill,
I don't believe we have a settlement until the legislation is
passed.
Senator Cantwell. Thank you.
So, the subcommittee will be recessed for 15 minutes,
hopefully we'll reconvene at 11 a.m.
[Recess.]
Senator Cantwell. And we'll welcome our second panel to
testify.
I want to mention a housekeeping issue, that the
subcommittee has received a number of additional statements,
exhibits, testimonies regarding the bill before us today, those
items, as well as written submissions of all of the witnesses
testifying will be made part of the record.
So, welcome, gentlemen. We have Mr. Dan Dooley,
representing the Friant Water Users Authority; Mr. Howle Candee
of the Natural Resources Defense Council; Joe Grindstaff with
the State of California; Steve Chedester with the San Joaquin
River Exchange Contractors Authority; Mr. Ken Robbins,
representing the Merced Irrigation District; and Allen Ishida,
with the Tulare County board of supervisors.
Thank you, gentlemen, very much for being here, we welcome
each of you, and I think, since you're lined up that way, Mr.
Dooley, do you want to begin?
STATEMENT OF DANIEL M. DOOLEY, ESQ., REPRESENTING FRIANT WATER
USERS AUTHORITY, LINDSAY, CA
Mr. Dooley. Thank you, Madam Chair, it's a pleasure to be
here, and I look forward to trying to respond to any questions
you might have.
I'm Dan Dooley, of Dooley Herr & Peltzer, I represent a
number of the members of the Friant Water Users Authority which
is composed of 22 public agency irrigation and water districts
from the Merced County line on the north, to the southern end
of Kern County on the south. Each of those members, public
agencies, is represented by an elected board of farmer-
directors, and I am pleased to say that they supported this
settlement unanimously, in proving the terms of the settlement
last July. Each of those boards of directors considered the
terms of the settlement, and voted to approve it.
And I might mention that there are 120 some-odd elected
board members on those 22 public agencies, there was one no-
vote against the settlement by one of the agencies. So, it's
uniformly, I think, supported by the farmer board members of
the people I'm representing today.
You've heard a lot about the 18 years of litigation, I'm
one of the people who's been involved for all of those 18
years. And it has been a very contentious battle, obviously the
stakes were very high. And there have been, I think, a couple
of benchmark determinations that have caused my clients to
believe that it was time to consider a settlement.
Particularly, in 1998 a decision of the trial court was
appealed to the 9th Circuit, where he had determined that the
State law that requires the release of the water for fishery
was one of the Federal--or was one of the State laws that was
applicable to the Reclamation project, under section 8 of the
1902 Reclamation Act.
There's been a lot of speculation that this, a case, if
we'd gone to trial would be appealed to the Supreme Court, and
the Supreme Court would rule in our favor. Candidly, we filed a
writ of certiorari on that Federal question in 1998, and the
Supreme Court did not take the case. So, the Federal question
has essentially been resolved, and avenues of appeal are non-
existent.
So, what we're confronting now is the implementation of the
State law, and after the court ruled that the Bureau of
Reclamation had violated the State statute by not releasing
enough flows for fisheries downstream of the dam, he then
scheduled a trial on the remedy, which is, how much water? And,
it was in preparation for that trial that it became clear to us
in the exchange of technical reports among our experts, that
there was an opportunity to discuss settlement.
And so, that's why we got to this point. We were looking
for certainty. We wanted to know how much water we had from
year to year, and not have that amount be regulated annually by
a court that had retained jurisdiction to implement a judgment,
and not have certainty as to our water supply.
And so what this settlement does for the Friant Water Users
is, it gives us a cap on how much water we have to provide, in
particular hydrologic circumstances, so that we know from year
to year how much water is available to us, and how much is
required to restore the river.
It also caps our financial obligations at levels that we've
determined are acceptable, and those financial obligations are
redirected, in some cases, to support the implementation of the
settlement. And, there is an independent water management goal
that's been referred to, and we believe that the worse-case
scenario of how much water we would lose--which is about 15
percent of our historic deliveries--can be substantially
reduced by the implementation of additional groundwater
management programs, water management programs, and exchange
programs among and between various water users. That, by the
implementation of those programs, we will substantially reduce
the water supply impact on our client.
And, Senator Feinstein referred to a report that she
requested that the Friant Water Users prepare, and I have a
copy of this report, which I'd like to offer for the record of
this hearing, to make sure that your committee staff receives
sufficient copies of it. This is the report that details a
variety of water management programs that we believe can be
utilized to offset the water supply impacts on the Friant
farmers.
I think in the final analysis, I would say that what all of
the parties realized is that we were more apt to minimize water
supply impact and have a successful restoration program if we
were working together, rather than fighting the implementation
of a court judgment.
And, it took us 18 years to get to that point, but I think
I can tell you that the Friant Water Users Authority
enthusiastically supports the implementation of this settlement
as an alternative to the litigation, and we respectfully
request that you approve and move forward S. 27, which has a
number of provisions that are necessary to implement the
settlement.
Thank you very much, and I'm obviously available for
questions.
[The prepared statement of Mr. Dooley follows:]
Prepared Statement of Daniel M. Dooley, Dooley Herr & Peltzer, LLP,\1\
Representing Friant Water Users Authority, Lindsay, CA
Madam Chair and members of the subcommittee, it is an honor and
privilege to appear before this Committee, and to ask your support for
legislation implementing an historic agreement that resolves a long-
standing conflict on the San Joaquin River. I am Daniel M. Dooley, a
partner in Dooley Herr & Peltzer, LLP. I serve as general counsel for
many of the irrigation and water districts that compose the Friant
Water Users Authority. Along with Kole Upton, Chairman of the Friant
Water Users Authority, I was a principal negotiator of this historic
Settlement of the 18-year-old lawsuit known as NRDC, et al. v. Rodgers,
et al. Mr. Upton was unable to be here but has provided a written
statement, which I ask be included in the record of this hearing.
---------------------------------------------------------------------------
\1\ DOOLEY HERR & PELTZER, LLP represents the Fresno Irrigation
District, Lewis Creek Water District, Lower Tule River Irrigation
District, Porterville Irrigation District, Saucelito Irrigation
District, Stone Corral Irrigation District, Tea Pot Dome Water
District, and Tulare Irrigation District, all of whom are long-term
Friant Division Central Valley Project water contractors. Additionally,
Dooley Herr & Peltzer, LLP represents the Hill's Valley Irrigation
District, Pixley Irrigation District, and the Tri-Valley Water
District, all of which are long-term Cross Valley Canal Central Valley
Project water contractors.
---------------------------------------------------------------------------
On September 13, 2006, the Friant Water Users Authority, Natural
Resources Defense Council and U.S. Department of the Interior
cooperatively reached what can only be termed a historic moment. As
representatives of Friant, the NRDC and its coalition, and the federal
government gathered at the federal courthouse in Sacramento, documents
were being electronically filed within the U.S. District Court of Judge
Lawrence K. Karlton to settle the San Joaquin River litigation that has
been so contentious, and which has placed such a dark cloud over
Friant's future, for the past 18 years.
My testimony today will focus on this Settlement and why it is good
for society as a whole and all the parties. I will discuss how this
carefully crafted Settlement provides a process to restore a river in a
manner that maintains a vibrant economy and society and how it offers
protection, in so many ways, for third parties who are downstream
stakeholders.
Most importantly, I will assert to you that this extraordinary
Settlement offers a positive and productive path forward into a future
in which all of us can use our resources and talents in a cooperative
effort rather than one that is wastefully devoted to continued
bickering and fighting. This Settlement is not perfect, but it is by
far the most practical option for each of the parties, and particularly
for the members of the Friant Water Users Authority and the water users
they serve.
I commend the legislators and policy makers--Federal, State, and
Local--who have done so much to reach this remarkable point in time. In
particular, Madam Chair, the settling parties and the people and
organizations we represent are grateful for the leading roles that
Senator Feinstein along with Congressman Radanovich willingly took to
bring us back to the negotiating table and bridge our differences in a
way that has made it possible for all of us to embrace this Settlement
and its provisions.
The Friant Water Users Authority consists of 22 member agencies
that receive water from the Friant Division of the Central Valley
Project. The Friant service area consists of approximately 15,000
mostly small family farms on nearly one million acres of the most
productive farmland in the nation along the southern San Joaquin
Valley's East Side. The Friant Division sustains underground water
supplies relied upon by residents, businesses and industries in the
cities within the Friant service area and delivers surface water to
cities and towns that include Fresno, Friant, Orange Cove, Lindsay,
Strathmore and Terra Bella.
The Friant interests were motivated to find a way to settle the
NRDC's lawsuit over the San Joaquin River because of our determination
to preserve the valley's way of life. Friant Dam and water delivered
through the Madera and Friant-Kern canals have always provided a great
deal of opportunity. For the past 18 years, the water supply of water
from Friant has been under a dark cloud. We have had every reason to
believe that those who farm and the communities that exist because of
Friant could end up losing all or a major portion of their water
through a judge's decision in the NRDC case or because of some other
challenge.
Such a possibility was and is unacceptable. Farmers cannot farm
without an adequate and affordable water supply. Further, farmers must
have some certainty before committing to plant a crop. As this case
began down a fast track toward trial to determine how much water was
required to restore the river, we were provided with an opportunity to
sit down and try again to reach a mutually agreeable settlement.
background
It goes without saying that this case has been seemingly endless,
frequently frustrating, incredibly challenging, internally complicated,
often controversial and always expensive.
It began in 1988 just as the U.S. Bureau of Reclamation was
beginning to renew Friant's long-term 40-year contracts. NRDC and its
coalition of environmental and fishing interests challenged the
government's decision to renew Friant water service contracts without
an Environmental Impact Statement. Of course, it didn't stay that
simple. NRDC's complaint was amended seven times over the next 15 years
to include other claims. One of those was a claim under the Endangered
Species Act, and still another contended that the operation of Friant
Dam was in violation of California Fish and Game Code Section 5937,
which requires dam operators to release sufficient water to keep fish
in good condition below the dam. Most of the earlier claims are no
longer relevant. But the river flow issue--the most crucial of all to
Friant users--came to be the litigation's focus over the past several
years, especially during an earlier four-year settlement effort that
was, unfortunately, not successful.
After the 9th Circuit Court of Appeals ruled that the application
of the state law to Friant Dam was not facially preempted (and the
United States Supreme Court denied a writ seeking review), the case
reached a crucial turning point in August 2004 when the judge ruled
Section 5937 imposes a continuing duty to release sufficient water from
Friant Dam into the San Joaquin River to restore former historic salmon
runs and fishery conditions. The trial court assigned liability to the
Bureau of Reclamation. The court never determined how much water would
be needed to satisfy the state law or whether that amount would be so
large that it would be preempted by the federal law, but set the case
for a trial that was to have started in February 2006 to determine the
``remedies''--the amount of the releases. In 2005, the parties began
preparing for that trial and, in the process, gained valuable new
scientific information from the expert reports prepared by our
respective trial witnesses about possible restoration strategies.
The judge admonished the parties that the law did not permit him to
finely tune a solution in the way the parties could through a
negotiated settlement. The judge's admonition resonated with the Friant
contractors. It seemed to say what many of us had long suspected--that
if the judge decided this case, there was going to be a great deal of
Friant water used as a ``remedy'' down the river. And without a
settlement, there wasn't going to be any of the extensive and
critically needed work done in the channel and to structures to provide
any sort of on-the-ground hope that salmon could be lured back by water
alone. The judge would likely have retained jurisdiction to increase
water releases in order to accomplish the restoration. There was,
however, a strong likelihood that Friant's water users and the economic
and social structure in the San Joaquin Valley that depends upon this
water supply could very well be severely impacted.
That was the situation fall of 2005 when Senator Feinstein and
Congressman Radanovich began a non-partisan effort to get Friant, NRDC
and the government to try again to negotiate a mutually agreeable
Settlement. It should be obvious that Mrs. Feinstein and Mr. Radanovich
were amazingly persuasive! They asked the parties to respect two
critical principles. The first was to respect the need for water supply
and financial certainty in the Friant community. The second was to
respect the need for certainty that the restoration effort would
actually occur. The concept was a good old-fashioned compromise.
In exchange for restoring the San Joaquin River below Friant Dam,
Friant's new water dedication for the fishery's needs would be capped
at certain amounts based upon hydrologic conditions. That instantly
provided Friant water users with what had long been missing in prior
settlement discussions--a declaration of water supply and quantity
certainty for decades into the future. We were well aware in taking
this key compromise and filling in the details that such an agreement
would result in use of a portion of the Friant Division water supply
for Restoration Flows. And, yes, it represents water that our already
water-short area can't afford to lose. Friant also recognized that the
cap on water for Restoration Flows would remove what promised to be
years of continued uncertainty over the Friant water supply that would
result in socioeconomic disruption of the eastern San Joaquin Valley
if, after trial, the judge ordered water releases and retained
jurisdiction to modify restoration flows annually.
Of equal importance to that certainty and the river's restoration
was development of the Settlement's unique means of using good,
innovative water management to provide means to recover, re-use and
recirculate water in an attempt to mitigate impacts on Friant water
users. Also of great importance to Friant was another crucial
compromise that capped Friant's financial contribution to river
restoration at present levels--which add up to tens of millions of
dollars each year paid into the CVP Improvement Act's Restoration Fund
and Friant Surcharge.
By April of 2006, the parties were able to inform Judge Karlton
that agreement had been achieved on numerous issues, including
restoration goals, water flows, ways of managing and recovering water
and a host of other issues. At the end of June, the attorneys announced
that they had agreed to a Settlement in principle and would recommend
approval to each of the constituencies.
the settlement agreement
The Settlement Agreement itself is constructed around two
important, equal and parallel goals:
<bullet> The Restoration Goal is to restore and maintain a self-
sustaining salmon population below Friant Dam to the confluence
of the Merced River.
<bullet> The Water Management Goal is to reduce or avoid adverse
water supply impacts to all of the Friant Division long-term
water contractors.
The Restoration Goal includes three essential elements. Those
include:
<bullet> A number of improvements providing for channel capacity,
related flood protection, fish passage and fish screening.
These will take place in two phases. By the end of 2013,
projects to be completed include a salmon bypass channel around
Mendota Pool, increasing channel capacity between the Eastside
Bypass diversion and Mendota Pool to 4,500 cubic feet per
second; increasing the channel capacity (in Reach 4B) below the
Sand Slough control structure to 475 cfs; modifying the Sand
Slough control structure to provide for fish passage and
appropriate routing of water; screening the Arroyo Canal
diversion; and modifying Sack Dam and the Eastside and Mariposa
Bypass channels for fish passage and low flow conditions; and
providing seasonal fish barriers to screen fish at Salt and Mud
Sloughs. The second phase improvements are to be completed by
the end of 2016. These include increasing Reach 4B channel
capacity below the Sand Slough control structure to 4,500 cfs
unless it is determined not to substantially enhance
achievement of the Restoration Goal; modifying the Eastside
Bypass diversion structure to provide appropriate fish
screening and passage; and isolating gravel pits near Fresno
from the river.
<bullet> Flow releases from Friant Dam, beginning in 2009 with
experimental Interim Flows and with full Restoration Flows
beginning in 2014; with quantities determined according to
hydrographs based upon water year types in order to provide
fishery habitat water. These Restoration Flows may be
supplemented by Buffer Flows of up to 10% of the daily
hydrograph and can be further augmented with water purchased
from willing sellers. Procedures are also specified for
flexible management of Restoration Flows to account for
temperature and biological factors so that implementation of
the Settlement will avoid causing harm to other downstream
fishery programs. The flow schedule can't be modified until
after December 31, 2026 and any change would require a court
filing and a referral to the State Water Resources Control
Board.
<bullet> Reintroduction of salmon and other varieties of fish into
the upper San Joaquin River. The Fish and Wildlife Service is
to apply to the National Marine Fisheries Service for a permit
to reintroduce salmon and NMFS must decide on such application
by April 30, 2012. Fall and spring run salmon are to be
reintroduced by the end of 2012.
The Water Management Goal and its implementation embrace two
critical elements. They include:
<bullet> Development and implementation of a plan to recirculate,
recapture, reuse, exchange, or transfer water released for
Restoration Flows within bounds of the Settlement's terms and
all applicable laws, agreements and environmental policies. One
example of the type of program that Friant believes would be
included in this plan would be repair work on the Friant-Kern
and Madera Canals to bring these conveyance facilities back to
their originally designed capacities in order to facilitate the
transfer and/or exchange of water.
<bullet> Creation of a Recovered Water Account that provides an
opportunity for Friant Division long-term contractors to
recover water they have lost to Restoration Flows at a reduced
water rate in wet water conditions. Friant Division long-term
contractors providing water for Restoration Flows will be able
to purchase water for $10 an acre foot during certain wet
conditions when water is available that is not necessary to
meet contractual obligations or Restoration Flows. This
provision is designed to increase water banking and management
programs and boost incentives for districts to actively
participate while reducing the Settlement's water supply
impacts.
Some of the Settlement's Other Features include and address:
<bullet> State of California Participation: This contemplates that
the State will of necessity participate in implementing many
provisions. A Memorandum of Understanding has been negotiated
with various State agencies. It specifies how Friant, the NRDC
coalition, federal government and the State will integrate
implementation activities. The State has expressed a desire for
its Resources Agencies to be actively involved. We expect the
State to provide technical and funding resources. Specific
agreements will be negotiated with the State regarding specific
Settlement actions. It should also be noted that Proposition 84
was approved by the California voters in November of 2006 and
includes $100 million for San Joaquin River restoration.
<bullet> Funding: There are very specific provisions related to
Settlement funding, including provisions relating to the
character of the capital investment, limitations on Friant
Division long-term contractor payments, identification of
existing funding resources and additional appropriations
authorization. The Settlement provides that costs will not add
to CVP capital obligations. It also commits Friant Division
long-term water contractors to continue paying the CVPIA
Restoration Charge and Friant Surcharge for the life of the
Settlement but caps Friant's obligations at those amounts. The
Friant Surcharge would be dedicated to implementing the
settlement, as would Friant's capital repayment portion of CVP
water rate payments. Up to $2 million annually of the Friant
CVPIA Restoration Charge payments will be made available for
implementing the Settlement. In addition, the Settlement
authorizes appropriations authority for implementation totaling
$250 million. (Some of these identified sources of funding are
not subject to the appropriations ceiling or to annual
appropriations and may not be subject to scoring for budget
allocation purposes.) State funding from various revenue
streams, including state bond measures, is anticipated. Funding
identified in the Settlement will be available to implement the
Water Management Goal as well as the Restoration Goal.
<bullet> Other Claims Resolved: The Settlement resolves all claims
pending in the existing litigation, including those challenging
the validity of the Friant Division long-term renewal
contracts.
<bullet> Third Party Impacts and Participation: There has been a
great deal of concern voiced about third party impacts. All of
us clearly understand and the Settlement acknowledges that
implementation will require a series of agreements with
agencies, entities and individuals who are not parties to the
litigation. The Interior Department is to coordinate with
interested third parties (including third parties who own or
control lands or facilities affected by Settlement
implementation), and for public participation in Settlement
implementation. Provisions of the MOU with the State
contemplate joint efforts to provide mechanisms for non-party
participation in Settlement implementation. Further, and as a
result of a series of intense negotiations last September, a
number of changes and additions were agreed to the legislation
before you today; these changes resolved the third party
concerns, and all participating in those discussions have
signed a pledge that as a result of the changes, they will
support the Settlement and the legislation and oppose changes
that are not agreed to by all of the parties.
<bullet> Management and Administration: A Restoration Administrator
position is to be established to help implement the agreement
and advise the Interior Department on how the river restoration
hydrographs are to be implemented, when buffer flows may be
needed, what river channel and fish passage improvements will
be made, how reintroduction of salmon will be accomplished, how
and when interim flows releases will be made, and the targets,
goals and milestones for successful implementation of the
fishery program and coordination of flows with downstream
tributary fishery efforts. Appointment will be for a six-year
term. Friant and NRDC have identified a candidate for the
Restoration Administrator position and are in the process of
securing his appointment. A Technical Advisory Committee will
be created to advise the Restoration Administrator. It will
include two representatives each from the plaintiffs' coalition
and Friant defendants as well as two members mutually agreed
upon, but none are to be federal employees. Two members will
represent ex officio the two California agencies primarily
involved with implementation of the Settlement, the California
Department of Water Resources and the California Department of
Fish and Game. Terms are to be for three years.
<bullet> Long-Term Friant Water Service Contract Amendments: When the
Friant Division's long-term renewal contracts were enacted in
2001, they included a stipulation requiring necessary contract
amendments to reflect and be consistent with any Settlement
agreement. Such a provision is part of the Settlement. Friant's
long-term contracts will be kept in place with no further
National Environmental Policy Act or Endangered Species Act
compliance actions required.
<bullet> Resolution of Disputes: Procedures are included for
attempting to resolve disputes by meeting and conferring.
Should that be unsuccessful, services of a neutral third party
are to be used. Finally, the parties could turn to the U.S.
District Court.
federal legislation
This issue is before the Subcommittee because some Interior
Department actions called for in the Settlement require Congressional
authority. As you have seen, an exhibit to the Settlement contains
proposed legislative language. It is referred to as the ``San Joaquin
River Settlement Act.'' Passage of this legislation in substantially
the same form as has been agreed to by the parties signing the pledge
is critical because any party could void the Settlement if the
necessary legislation were not enacted on a timely basis. Further,
State of California funds to implement the Settlement are now
available, and additional funds will be available on July 1, 2007.
Enactment of this legislation is critical to effectively utilize the
State funds and to keep implementation of the Settlement on the
admittedly aggressive schedule agreed to by the parties.
mitigation of water supply impacts
The Friant Water Users have carefully evaluated the water supply
delivery impacts of restoring Restoration Flows to the San Joaquin
River. In addition to flood flows and surplus water supplies, Friant
estimates the average annual impacts to historic deliveries to long-
term Friant contractors to be approximately 170,000 acre feet.
Unmitigated, this annual impact would have significant adverse impacts
on the Friant service area and the communities existing therein. These
potential impacts are of concern to the Friant contractors and many
community interests along the eastern side of the southern San Joaquin
Valley.
The Friant Water Users Authority and its member districts have
undertaken to prepare a report that identifies a number of specific
programs and projects that could be undertaken to substantially, if not
completely, mitigate the water supply impacts. Some of provisions of
the report identify options for recirculation, recapture and reuse of
water that should be considered by the Secretary of Interior when
developing the plan required by Paragraph 16 of the Settlement. Other
provisions identify activities that the Friant Water Users Authority
and its members are considering to further reduce the direct water
supply impacts resulting from the initiation of Restoration Flows as
well as the indirect impacts on the communities in the Friant service
area. These programs and projects include, but are not limited to:
<bullet> Projects and programs that should be considered by the
Secretary in developing the plan for recirculation, recapture
and reuse of Restoration Flows that is required by the
Settlement and the legislation;
<bullet> Rehabilitation and enhancement of Friant Division conveyance
facilities to permit greater utilization of surplus River water
to maximize the effectiveness of integrated regional and
district programs and projects;
<bullet> Integrated regional management projects and programs that
create improved integrated water management activities between
districts and among groups of districts; and
<bullet> Improved district groundwater banking, conveyance,
distribution and water management programs and facilities.
I offer a report that summarizes these programs and projects and
includes a detailed exhibit for inclusion into the record of this
hearing.
conclusion
Settlement of the 18-year-old litigation known as NRDC v. Rodgers
has been rightly applauded in much of the nation's press as an
outstanding achievement. The Friant Water Users Authority and its
member agencies appreciate that sentiment and view the Settlement as
historic, and the beginning of a new era in which the policies and
activities of the past are blended with society's environmental
priorities of the present and future. This Settlement has been
constructed upon a newfound willingness among the settling parties to
cooperate and compromise for the common good, and to the benefit of
each of our positions.
In addition to society's general interest in the San Joaquin River,
there are three interest groups lobbying Congress on the legislation
proposed for implementing this Settlement. These parties include:
<bullet> The environmentalists interested in restoring flows and
salmon to the San Joaquin River.
<bullet> The San Joaquin Valley folks who are dependent on San
Joaquin River water for sustaining their livelihoods and homes
within the Friant Division.
<bullet> The third party interests who do not want the implementation
of the Settlement to cause material adverse impacts to their
constituents.
I submit to you that, collectively and individually, all these
interests and society itself will be far better served by this
Settlement than by Congress rejecting it. Of course, not everyone is
fully satisfied, from either the environmental coalition or the water
users community:
<bullet> Some in the environmental community may wonder why they
should settle with caps on Friant's costs and water releases
when they have won so convincingly to date in Judge Karlton's
Court. The answer for them is that this Settlement offers a
process and constructive opportunity of cooperation for salmon
restoration. With a court judgment, the attitude and approach
by the valley folks would be predominantly one of perpetual
resistance, and an emphasis on how to save as much water as
possible. Under that scenario, water would nearly certainly be
released upon orders of a federal judge, but the necessary
improvements and cooperative nature essential to an effective
salmon recovery would be entirely missing. And, if it were ever
to be achieved, if would be accomplished only be after a much
longer time with far greater amounts of water.
<bullet> Some water users may feel that this Settlement makes no
sense because, they reason, Congress six decades ago agreed to
make the Friant project a reality and decided to make it work
by drying up 60 miles of the San Joaquin River. Valley folks
may also feel a federal judge should not have the power to
overturn such a decision made long ago, and subsequently
reaffirmed, by Congress. There is a misperception by some that
a ruling unfavorable to Valley water users and agencies would
be a strong candidate for being reversed on appeal to the Ninth
Circuit or the Supreme Court. Unfortunately, Friant has already
been down that road once with this judge's decisions, including
that our contracts should be voided and that California Fish
and Game Code Section 5937 should apply to Friant Dam. His
ruling was upheld by the Ninth Circuit and the Supreme Court
would not take the case.
<bullet> The Third Party interests have sought protection and
indemnification against unfair water and fiscal costs they
assert the Settlement would be inflict upon their constituents.
We have addressed their concerns in the legislation before you.
It is important to understand that rejection of the Settlement
and proceeding to trial would not provide the third parties any
of the protections contained in the Settlement and legislation.
This Settlement, and the legislation before you, is the product of
literally thousands of hours or arduous negotiation and analysis. All
parties to the litigation, and third parties who expressed concerns
about the Settlement originally, have committed enormous good faith
efforts to structure an agreement that fairly and acceptably balances
all of the varied interests. Incredibly, we found such a balance. I
believe this Settlement sets forth a model for resolving complex water
resource disputes. The last piece is enactment of H.R. 24. I request
that this Committee move this Bill as quickly as possible so that the
parties can fully move forward to the challenging task of implementing
this historic restoration program.
Thank you.
Senator Cantwell. Thank you, Mr. Dooley.
Mr. Candee.
STATEMENT OF HAMILTON CANDEE, SENIOR ATTORNEY, CO-DIRECTOR,
WESTERN WATER PROJECT, NATURAL RESOURCES DEFENSE COUNCIL, SAN
FRANCISCO, CA
Mr. Candee. Thank you. Good morning. My name is Hamilton
Candee, and I am a senior attorney with the Natural Resources
Defense Council and the co-director of our Western Water
Project in San Francisco.
Thank you for the opportunity to testify today in support
of S. 27 to authorize the historic settlement in RDC v. Rogers,
and to restore the California San Joaquin River.
For the past 18 years, I've been a counsel of record in
this case, representing a coalition of 14 environmental and
fishing groups who, in turn, represent over 2 million people
nationwide, and 250,000 in California. With me today is Philip
Atkins-Pattenson, a lawyer at the California firm of Sheppard
Mullin Richter & Hampton, and together, he and I were
negotiators during the full year of negotiations that led to
the settlement.
The bill pending before the subcommittee will approve and
help fund a historic settlement agreement and a comprehensive
restoration process that will bestow benefits on millions of
Americans, end one of California's longest-running water
disputes, and also preserve a vibrant agricultural economy in
one of the country's most significant agricultural regions.
We are submitting materials for the record that will
address the terms of the settlement in greater detail, so my
remarks about the settlement will be very brief.
However, before I discuss the settlement and the
legislation, I would like to just say a few words about the San
Joaquin River itself, how it has been managed for the past 60
years, and why restoration is so important.
The San Joaquin is one of California's great rivers, one of
its largest rivers, and the second-longest river in the State,
and it's one of two major tributaries to the San Francisco Bay
Delta, which is the largest estuary on the west coast. The Bay
Delta is an estuary of international, ecological importance,
and also the source of drinking water, for over 22 million
people.
In the early 20th century, the mighty San Joaquin River
supported steamboat travel, and teemed with wildlife, including
one of the largest Chinook salmon populations on the entire
Pacific coast. By the early 1940's when Friant Dam was built,
the steamboats were gone and the abundant wildlife had
diminished, but tens of thousands of spring-run Chinook salmon
still survived in the river, and in fact, continued to survive
after the completion of the dam. It wasn't until the Bureau of
Reclamation began diverting so much water of the dam that 60
miles of the river downstream were dried up, that the salmon
finally disappeared.
For the past half century, over 90 percent of the river's
flow has been diverted at or immediately below Friant Dam,
mostly for irrigation purposes. But, as Senator Boxer pointed
out in her testimony, these diversions have come at a
tremendous cost to the environment, also to the recreational
and commercial fishing industries, to ground water levels in
adjacent areas, and to the lower San Joaquin River in the
Delta.
In fact, in the Delta, the de-watering of the upper San
Joaquin River has contributed to water quality impairments that
adversely affect farmers and communities in the lower part of
the river, in San Joaquin County, and to the millions of people
who rely on the Delta for drinking water.
But, just as the operation of Friant Dam has contributed to
these serious problems, the operation of Friant Dam under this
historic settlement will be part of the solution to these
problems.
I have attached to my testimony a number of materials,
including a summary of the many broad benefits of the
settlement, an initial list of supporters--which has now grown
considerably--some of the clippings and editorials in
California supporting the settlement, as well as statements
from interested officials and organizations. In fact, support
is bipartisan, we have strong support from the Governor, from
the Bush administration, but also from water users throughout
the State, including the Metropolitan Water District of
Southern California.
So we are hopeful that that strong support will help move
the legislation quickly, because as it was stated earlier in
the question and answer session, there is a risk that if the
legislation doesn't pass, we don't have the full authority to
implement the settlement, the Federal Government may not have
the money it needs, but in addition, the State money that has
been committed, the $100 million from Prop 84, and potentially
another $100 million could be at risk because the State
legislature is waiting for the Federal money to show up before
they match it with the State money.
Before I end, I just want to give a quick list of some of
the benefits of the settlement which, we believe, will be
benefits, not only for the State of California, but for all of
the different stakeholders who have been involved in these
negotiations.
First, it will restore continuous flows to the San Joaquin
River, and all the way down to the Bay Delta, which for 60
years, basically, the upper river has been disconnected from
the Bay Delta, so this is a crucial issue.
Second, it will restore the Central Valley Spring-run
Chinook salmon, and a number of other fish populations to the
San Joaquin after a period of 50 years.
It will provide certainty to the Friant Division long-term
water contractors, to the specified water releases that are
actually specified in the settlement. It will provide
flexibility to the contractors to reduce or avoid their water
supply impact with the new measures that are called for by the
settlement as a water management program.
It will provide protections to the interests of third
parties, and I should mention that that was a major priority
for the settling parties, was reaching out to the third parties
during the settlement negotiations, and then afterwards. As
Senator Feinstein indicated, that was a big part of what the
final revisions were to the legislation.
In short, we urge the committee to pass the legislation as
quickly as possible, and we thank you for your support.
[The prepared statement of Mr. Candee follows:]
Prepared Statement of Hamilton Candee, Senior Attorney, Co-Director,
Western Water Project, Natural Resources Defense Council, San
Francisco, CA
Good morning. My name is Hamilton Candee and I am a senior attorney
with the Natural Resources Defense Council (NRDC) and the Co-Director
of NRDC's Western Water Project in San Francisco. Thank you for the
opportunity to testify today in support of S. 27, a bill to approve and
authorize the historic Settlement in NRDC v. Rodgers to restore
California's San Joaquin River. For the past 18 years, I have been a
counsel of record in this case, representing a coalition of 14
environmental and fishing groups which, in turn, represent over 2
million people nationwide, and more than 250,000 Californians. With me
today is Philip Atkins-Pattenson, a partner in the California law firm
of Sheppard Mullin Richter & Hampton, who also represents the NRDC
Coalition. Both of us were directly involved in the extensive multi-
party negotiations that produced the landmark agreement that is the
subject of today's hearing.
The bill pending before the Subcommittee will authorize and help
fund a historic and comprehensive settlement agreement and restoration
process which will bestow benefits on millions of Americans while
ending one of California's longest running water disputes and
preserving a vibrant agricultural economy in one of the Country's most
significant agricultural regions. We and others are submitting
materials for the Record that will address the framework and the
details of the Settlement in greater detail. However, before I discuss
either the Settlement or the legislation, I want to first briefly
describe the San Joaquin River--how it has been managed for the past 60
years; and why its restoration is so important.
The San Joaquin is one of California's largest rivers, and
significantly, is one of two major tributaries to the San Francisco
Bay-Delta--the largest estuary on the west coast. It is an estuary of
international ecological importance and the source of drinking water
for over 22 million people. The San Joaquin River originates in the
high Sierra, and flows west past Fresno, and then north through the
heart of the San Joaquin Valley until it joins the Sacramento River in
the Delta region.
In the early 20th Century, the mighty San Joaquin supported
steamboat travel and commerce between San Francisco and Fresno; and it
teamed with wildlife, including one of the largest Chinook salmon
populations on the entire Pacific Coast. So abundant were these salmon
runs that farmers in the southern San Joaquin Valley used to pitchfork
the fish and feed them to hogs. People who lived near the present site
of Friant Dam reported being kept awake at night by the thunderous
noise of spawning salmon. By the early 1940's when Friant Dam was
built, the steamboats were gone, the abundant wildlife had diminished,
but tens of thousands of spring run Chinook salmon, as well as a
smaller fall run, still survived in the river--and in fact, continued
to survive after completion of Friant Dam. It wasn't until the Bureau
of Reclamation began diverting so much water from the dam that 60 miles
of river downstream were dried up that the salmon finally disappeared.
For the past half century, over 90% of the river's flow in most
years has been diverted at or immediately below Friant Dam, mostly for
irrigation purposes. Other witnesses will surely speak to you about the
huge agricultural economy that has benefited from these diversions. But
these economic benefits came at a tremendous cost--to the environment,
to the recreational and commercial fishing industries, to groundwater
levels in areas adjacent to the river downstream of the dam, and to the
lower San Joaquin River and the Delta, where the de-watering of the
upper San Joaquin River has contributed to chronic water quality
impairments that adversely affect farmers and communities in San
Joaquin county, and millions of people who rely on the Delta for
drinking water. But just as the operation of Friant Dam has contributed
to these serious problems, the operation of Friant Dam under this
historic Settlement will be part of the solution to these problems.
To illustrate the broad benefits of restoration and to show the
remarkably broad support for the Settlement and the restoration program
it provides for, I have attached to my testimony a number of materials,
including a summary of the broad benefits of this settlement, recent
news clippings and editorials, and statements of support from
interested officials and organizations from around California. I would
ask the Chair's permission to have all of the attachments to my written
Statement included in the final record of this Hearing.*
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* The attachments have been retained in subcommittee files.
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A number of the clippings and editorials I have attached are from
cities and towns in the Delta and they document the vital importance of
restoring the San Joaquin River to that region. Communities and farmers
in the Stockton area will see both water quality and water supply
benefits from the Settlement. And other communities and farmers
downstream of Friant Dam will also be benefited by a living river
flowing through the heart of the Valley and into the southern Delta.
The fragile Delta ecosystem and San Francisco Bay will receive a life-
giving infusion at a time when this critical estuary and its threatened
fisheries desperately need it. And for salmon fishermen and fishing
communities on California's North Coast whose livelihoods once depended
on the San Joaquin River's legendary spring-run salmon, this Settlement
heralds a return of the spring run and an important step forward in
rebuilding our recreational and commercial fisheries. Indeed, it is
hard to find a river this large anywhere that has been literally dry
for half a century and then brought back to life. It is equally hard to
find a restoration project with such profound and far-reaching
benefits.
It is because of the broad benefits of San Joaquin River
restoration for our environment, our quality of life and our economy,
that an almost unprecedented array of stakeholders from one end of the
state to the other is supporting this Settlement. When we first
announced the Settlement last September, we prepared an initial list of
supporters, which is included in the Exhibits we have submitted to the
subcommittee. Since last fall, that list has continued to increase and
now includes such diverse parties as the Metropolitan Water District of
Southern California, the Bay Area Council--which is the SF Bay Area's
leading business association--and the Madera County Farm Bureau. Each
of their letters of support is also included in the Exhibits.
Nevertheless, the Settling Parties have recognized that this
landmark agreement, while supported by the overwhelming majority of
stakeholders and beneficial to millions of Californians, must be
carefully implemented to avoid potential adverse impacts to third
parties. Mindful of that concern, the Settling Parties spent much of
the past year reaching out to third-party stakeholders, briefing them
on the proposed settlement, discussing their concerns, and where
appropriate, modifying the settlement to incorporate their perspectives
and interests. That effort continued as the settlement effort moved
from the negotiating table to the Congress last year.
In this respect, I would like to particularly thank two of the key
players in producing this Settlement and this legislation, Senator
Dianne Feinstein and Congressman George Radanovich, who not only
sponsored the original talks in 2005 that led to the Settlement, but
have consistently supported the fragile consensus that emerged from
these talks ever since. And each of them played a critical role last
fall in identifying and addressing issues of concern to numerous third
parties, starting with the first congressional hearing on the
Settlement on September 21, 2006 which was chaired by Congressman
Radanovich in the House Subcommittee on Water & Power.
At that hearing, the Subcommittee heard from two panels: the first
comprised of representatives of the Settling Parties and the State of
California, and the second comprised of interested third parties.
Immediately following the hearing, the Settling Parties were invited by
Senator Feinstein to commence negotiations with a wide range of third
parties who had asked for revisions to the then-pending proposed
Settlement legislation to address their concerns about potential
impacts of the Settlement. These negotiations included several members
of the House Resources Committee, other interested members of the
House, both of California's Senators, as well as the various parties
who testified on the third-party panel on September 21, 2006.
Significantly, the major water districts in Tulare County that receive
water from Friant Dam were represented by the Friant Water Users
Authority, and the Congressmen who primarily represents Tulare County
was also a participant in the talks. On September 27, 2006, after
extensive and difficult negotiations in Washington, DC and California,
the Settling Parties, the State of California, and all the numerous
third parties that crowded into the Senator's conference room agreed on
a large number of changes to the proposed legislation. To memorialize
this remarkable agreement, the parties signed a written Pledge of
Support, which committed all the signatories to support the Settlement
and the revised legislation, and to oppose any amendments to the
revised legislation that are not agreeable to all of the signatories. A
copy of that Pledge of Support document, along with Senator Feinstein's
press release announcing the agreement, is submitted with the Exhibits
to my testimony.
Subsequently, on October 23, 2006, the Federal Court in Sacramento
that had presided over the NRDC v. Rodgers litigation for 18 years
approved the Settlement following a hearing on a formal motion brought
by the Department of Justice, the Friant Defendants and our Plaintiff
coalition. The Court approved the Settlement without change after
considering the views of 13 interested individuals and groups who were
not parties to the litigation but who were allowed to file amicus
briefs expressing their views on the Settlement.
On November 7, 2006, the voters of the State of California passed
two Initiatives that potentially provide substantial State funding for
implementation of the Settlement. First, the voters passed Proposition
84, which contains $100 million explicitly dedicated to implementation
of the Settlement, as well as numerous other potential funding sources.
Second, the voters passed Proposition 1E, the flood infrastructure
bond, which provides several billion dollars in bond funds to upgrade
the State's flood protection. Because the Settlement calls for flood
protection upgrades to be implemented along the San Joaquin River, the
State has informed the Settling Parties that Prop 1E could potentially
provide tens of millions of dollars in additional State funding towards
Settlement implementation. In the aggregate, the State anticipates
providing at least $200 million towards Settlement implementation, as
explained in the November 30, 2006 Letter from California's Resources
Secretary Mike Chrisman to Senator Feinstein that is included in the
Exhibits to my testimony.
In December, 2006, the Settling Parties and the State of California
addressed Senator Feinstein's request to revise further the Settlement
legislation to address the issue of ``cost-sharing'' between non-
Federal sources of funding and the $250 million in new Federal funds
authorized in the legislation. The Settling Parties were able to
successfully address the Senator's concerns.
As a result of these two rounds of consensus discussions to make
final revisions to the draft legislation, on December 6, 2006, H.R.
6377 and S. 4084 were introduced in the House and the Senate with
broad, bi-partisan support, including original cosponsorship by
Senators Dianne Feinstein and Barbara Boxer and Representatives George
Radanovich, Dennis Cardoza, Jim Costa, George Miller, Grace Napolitano
and Richard Pombo. Action was not taken on the bills given the short
time left in the 109th Congress, but were reintroduced on January 4th
of this year as H.R. 24 and S. 27, on the first day of the 110th
Congress, once again with bi-partisan support in the California
delegation. We thank all of the co-sponsors for their strong support,
especially Senators Feinstein and Boxer who have been so critical to
carrying this effort forward.
This is the background of the legislation that is now pending
before you. It is unique legislation in that it has the support of the
Settling Parties--who represent 22 water districts, 14 conservation and
fishing groups, and 5 federal agencies--as well as a wide array of
California water users and landowners who were not parties to the
Settlement but who have now pledged their support for the Settlement
and this legislation. And it is strongly supported by the State of
California, which was not a party to the litigation, but has
nonetheless committed extensive financial and agency resources to the
implementation of the Settlement. We are also pleased to note that the
President's FY 08 federal budget, and Governor Schwarzenegger's FY 08
State budget, both support increased funding for the relevant
government agencies to implement the Settlement, and the 5 state and
federal implementing agencies have already begun the implementation
process.
In closing, I would like to briefly recap the benefits of passing
H.R. 24 and fully implementing the Settlement. The Settlement will:
<bullet> Restore continuous flows to the San Joaquin River--
California's second-longest river and one of two main arteries
to the Sacramento-San Joaquin River Delta, the source of
drinking water for over 22 million Californians;
<bullet> Restore the Central Valley Spring-run Chinook salmon, fall
run Chinook salmon, and other fish populations to the San
Joaquin, much of which had been destroyed by the operation of
Friant Dam over the past 60 years;
<bullet> Provide certainty to the Friant Division long-term water
contractors through the specified water releases provided for
in the Settlement;
<bullet> Preserve the San Joaquin Valley's strong agricultural
economy, while enhancing environmental values in the Valley
through restoration of a living river and associated habitat;
<bullet> Provide flexibility to the Friant Division long-term
contractors to reduce or avoid the water supply impacts
resulting from the Settlement through specified water
management techniques such as ground water banking, low-cost
water in wet years, and other measures;
<bullet> Provide protections to the interests of third parties, as
included in the current legislation and in the Settlement, and
ensuring that all of the settlement provisions will be
implemented in accordance with all applicable laws, including
the National Environmental Policy Act, the Endangered Species
Act, and State law;
<bullet> And provide for myriad opportunities for public input and
participation during the implementation of the Settlement.
NRDC, having worked together with the other Settling Parties, the
State and those third parties who have signed the attached Pledge of
Support, is extremely proud of what we have accomplished in this
Settlement and revised legislation. The Federal and State agencies and
the Settling Parties are already actively involved in the process of
Settlement implementation. The Settling Parties have also cooperatively
developed protocols and agreements for public and third party
participation and input. But it is critical for all of us that we
obtain passage of this legislation that is pending before you in order
to fully implement what Secretary Kempthorne and so many other leaders
have correctly described as an ``historic settlement.'' We ask that
Congress promptly pass S. 27, the San Joaquin River Restoration
Settlement Act, so that the San Joaquin River can flow once again and
all of the benefits of the Settlement can be realized.
Thank you.
Senator Cantwell. Thank you.
Mr. Grindstaff.
STATEMENT OF P. JOSEPH GRINDSTAFF, DEPUTY SECRETARY FOR WATER
POLICY, CALIFORNIA RESOURCES AGENCY AND DIRECTOR, CALIFORNIA
BAY-DELTA AUTHORITY, SACRAMENTO, CA
Mr. Grindstaff. I'm Joe Grindstaff, the deputy secretary
for water policy, and the director of the California Bay Delta
Authority, appearing in support of this legislation today, on
behalf of the State of California.
This truly is an incredible opportunity for us to resolve a
very difficult problem. I won't go through my written testimony
in detail, I do want to point out that the State is committed
to supporting this effort--financially, technically, in every
way we can, because it's really important for the State that we
restore this river.
We think that there are opportunities, in fact, to deal
with the water management issues, which have been some of the
more contentious issues, to help make sure that the impacts are
minimized, while we obtain the benefits of really restoring a
river that will have huge benefit as time moves on.
I won't point out that these are not just short-term
decisions, but decisions that will go on for the next 50 and
100 years, and the San Joaquin River in California is really
important when you look at climate change and potential impacts
there. The San Joaquin mountains are higher than the mountains
to the north that, where water is fed to the Sacramento River,
it's important that we restore this fishery, so that we can
maintain cold water habitat as time moves forward.
This is an important thing to do, it's incredibly
difficult, but we are committed to doing our part, and to
helping to make it work. Thank you.
[The prepared statement of Mr. Grindstaff follows:]
Prepared Statement of P. Joseph Grindstaff, Deputy Secretary for Water
Policy, California Resources Agency and Director, California Bay-Delta
Authority, Sacramento, CA
introduction
Chairman Bingaman and members of the Subcommittee, I appreciate the
opportunity to appear before you today to discuss S.B. 27, the San
Joaquin River Restoration Settlement Act. I am here to convey the State
of California's support for this legislation.
As my colleague Nancy Saracino testified before the House in March
of this year, the settlement that S.B. 27 would implement represents
unprecedented consensus on a process that will have lasting positive
impacts on the natural environment while protecting farmers and the
Central Valley economy. The settlement creates a clear obligation to
the settling parties, but more importantly, an incredible opportunity
to achieve a historical restoration of a western river.
the role of the state of california
Although not a signatory to the settlement, the State of California
has many interests in a healthy fishery and the successful restoration
of the San Joaquin River. To that end, we have already allocated a
considerable amount of our resources to facilitate restoration of this
important resource.
Recognizing the importance of an agreement that could set the stage
for restoration of the San Joaquin River, the state has expressed its
support throughout the process that ultimately resulted in the
settlement to be implemented by S.B. 27. In January of 2006, Governor
Schwarzenegger sent a letter to Secretary of the Interior Gale Norton,
in which he conveyed early state support for a solution to the long-
debated future of the San Joaquin River.
In September of last year, the State of California joined with
federal agencies and other settling parties to sign a Memorandum of
Understanding (MOU) to help implement the Stipulation of Settlement.
Soon after, California Secretary for Resources, Mike Chrisman presented
testimony at a hearing held by this Subcommittee which reaffirmed the
strong support of the state for the Settlement Agreement. This
testimony was followed by a letter from Secretary Chrisman to Senator
Feinstein on November 30, 2006, which reiterated the state's support
and outlined the state's financial commitment to the restoration
process.
California has already allocated $1.5 million dollars for
restoration activities in the current budget year. An additional $18.3
million in funding from prior bonds and Proposition 84, the Safe
Drinking Water, Water Quality and Supply, Flood Control, River and
Coastal Protection Bond Act of 2006, has been proposed in the
Governor's 2007-2008 budget to initiate restoration activities
consistent with the settlement.
Furthermore, as pledged in Secretary Chrisman's November letter,
the state is committed to looking for opportunities under Proposition
1E, the Disaster Preparedness and Flood Prevention Bond Act of 2006, as
well as other provisions of Proposition 84, in order to fund multi-
benefit projects in support of the settlement. For example, at least
$40 million dollars is available under Proposition 84 for water quality
improvement projects on the San Joaquin River.
coordination and communication among parties
State agencies, including the Resources Agency, the Department of
Water Resources and the Department of Fish and Game, federal
implementing agencies and the settling parties have already begun
collaborating to plan, design, fund, and implement actions to support
the restoration of the San Joaquin River.
If Congress approves legislation implementing the settlement, the
Department of the Interior will be tasked with new responsibilities to
carry out the commitments made in the settlement to resolve the
longstanding litigation. It will be very important for the state to
coordinate closely with the Department of Interior to ensure that
planning on restoration activities is well coordinated and funds spent
in a way that optimizes the value of the investment of scarce
resources.
In addition, it will be important to ensure that a full and open
public process allows for all interested in the restoration efforts to
be heard as we move forward. Effective communication and coordination
among all parties early on and throughout the restoration will be a
challenge, but it is a challenge which must be met.
progress towards implementation
Concurrent with the settling parties' signing of the settlement,
the State of California entered into a MOU which then became an
appendix to the Agreement and filed in federal court. The intent of the
MOU was to set out the initial framework for state collaboration with
the settling parties on implementation.
The MOU included two critical requirements. First, the Secretaries
of Interior and Commerce, along with the California Secretaries of
Environmental Protection and Resources, were required to establish a
process for the state and federal agencies to implement the settlement.
This requirement is important because the Stipulation of Settlement
assigns to the Secretary of Interior many restoration tasks that will
require California's participation and approval for them to be
achieved. We have established implementation teams with the federal
government and a process for coordination consistent with this
requirement in the MOU.
Second, the state and the settling parties are to establish a
mechanism to ensure public participation and input into the
implementation of the settlement. In addition to concern for the
environmental considerations of the restoration, the State of
California recognizes that there are many interested third parties
along the river and many that have already spent years working on
restoration efforts. To successfully restore this river, we must work
collaboratively with all of these interests.
Allow me to summarize progress to date in achieving the goals of
the MOU and settlement as well as significant coordination efforts
among the state and federal governments, the settling parties and other
interested and affected entities.
We are engaged with the settling parties in the process of hiring a
Restoration Administrator who will be charged with directing the
program manager, and will have the responsibility of assisting with the
overall implementation of the agreement. The Technical Advisory
Committee is also taking shape, Friant and NRDC have already appointed
representatives, and ex-officio state representatives have been
identified.
A five-agency Program Management Team has met on multiple occasions
and is making progress on a Program Management Plan. The Plan will
serve as the agencies' agreement for implementation of the restoration
plan and is expected to be completed by the end of April. A public
involvement process is being developed by the Program Management Team
to ensure the opportunity for input and participation throughout the
development of the plan.
The state is contracting with a nonprofit entity to oversee the
funding for the Restoration Administrator as well as other charges
related to the Technical Advisory Committee and public outreach.
Finally, work is underway to install additional water quality and
flow stations along the San Joaquin River for the purpose of monitoring
restoration efforts as they move forward.
In conclusion, we are pleased with the progress made towards
restoration thus far. In order to move forward and to begin to reap the
rewards of restoration the parties await the critical missing piece
necessarily for full scale implementation, and that is the proposed
legislation that is before you today.
conclusion
The restoration of the San Joaquin River will have enduring
statewide and national significance. The rejuvenation of a critical
fishery, restoration of devastated habitat, improvements to the water-
delivery network for more than 22 million Californians and the
irrigation lifeblood for the productive breadbasket that is
California's Central Valley: this is what we can all look forward to as
implementation advances.
A discouragingly long battle in the courts has at last culminated
in what can truly be called a landmark settlement. The San Joaquin
River will once again become a living river, flowing as nature
intended, from its headwaters in the High Sierra all the way to San
Francisco Bay.
Chairman Bingaman and members of the Subcommittee: I urge you to
consider the paramount significance of this settlement, and I
respectfully ask for you to support this legislation and make the long
overdue restoration of the San Joaquin River part of your legacy.
Thank you.
Senator Cantwell. Thank you.
Mr. Chedester.
STATEMENT OF STEVE CHEDESTER, EXECUTIVE DIRECTOR, SAN JOAQUIN
RIVER EXCHANGE CONTRACTORS WATER AUTHORITY, LOS BANOS, CA
Mr. Chedester. Good morning, Madam Chairman, my name is
Steve Chedester, I'm the executive director of the San Joaquin
River Exchange Contractors Water Authority. We're currently
referred to as the ``Exchange Contractors.'' And we are one of
those third-parties that are affected--will be affected--by
this settlement and legislation.
I'm here today to testify in our support for the S. 27. We
did testify prior to this on the House Subcommittee on Water
and Power on September 21 and did provide a letter to the
subcommittee on March 1 of this year. And, we do have concerns
with the settlement, but we do provide--we do offer support,
and we think that if this is implemented as it's crafted, we
will be protected and mitigated.
Mitigation, though, is a very big issue to us. The adverse
impacts to this are substantial, and we believe, though, that
through the process of the legislative negotiations that were
talked about earlier by the Senator and others, that we have
provided the protections and necessary means to make sure that
our growers and our landowners are protected.
The Exchange Contractors is a joint powers authority, we
represent four water agencies, and we irrigate about 240,000
acres on the west side of the San Joaquin. The majority of the
river restoration efforts and channel restoration efforts that
are going to occur because of this are going to occur within
our service area. So, we do have a very keen interest in what
happens.
We will limit our comments to the proposed legislation that
are particularly important to us. We were not parties to the
litigation, we were a third-party that was brought in,
afterwards, and therefore it is settlement of litigation, and
while it appears to be balanced, it is a compromise. And, with
that, such goes along with it.
The proposed settlement would obligate the Bureau of
Reclamation to release water down the San Joaquin River and to
reconstruct many parts of the river, to reconstruct facilities
that are ours for diversion, fish screens, levies and
mitigations for landowners who will be impacted by this
implementation of this legislation.
Costs are an issue, and we believe that we did work out a
mechanism by which a lot of the costs that will be looked at,
particularly in Reach 4b, where the river will have to be
completely restructured, provided a mechanism that a study has
to be done ahead of time, a report given back to the Secretary
on how they will design the study, whether it's feasible to go
that direction or use another direction which is called a
bypass, the flood channel, and then pursue that if it's proven
feasible. And that is a very important issue for us, especially
for those landowners along that stretch of the River.
We had four major concerns when this was first proposed,
that is, protection of our water rights, protection from ESA,
adequate funding to make sure that whatever mitigations are
proposed can be implemented. We have some examples of the
Federal Government not being able to finish a project, and we
want to make sure that the impacts from that don't occur again,
and that is why we are so vitally concerned with that.
And then, lastly would be that the third-parties have a way
to provide input into the restoration effort.
In February of this year, we were able to complete an MOU
with the Bureau of Reclamation, us and other third-parties.
That allowed us to be able to have direct input to the
settlement and how it is implemented in studies, and that was
very critical for us, and it's very, it was actually one of the
keystones for us to be able to go forward, that has occurred.
I won't recite to you our areas of legislation that are of
major concern, it's in my written testimony. I would like to
say, though, in conclusion that we believe that S. 27 is a
balanced bill. We do believe it protects fish and farms. We
appreciate the subcommittee's consideration of this legislation
and your attention to this issue. I ask that both my testimony
of September 21, 2006, and my letter of March 1, 2007 be
included in the record, I have provided that to the committee,
both electronically and hard copy. And again, if you have any
questions, I'd be happy to answer them.
[The prepared statement of Mr. Chedester follows:]
Prepared Statement of Steve Chedester, Executive Director, San Joaquin
River Exchange Contractors Water Authority, Los Banos, CA
Good morning, Acting Chairperson Cantwell and members of the
Subcommittee, my name is Steve Chedester and I am the Executive
Director of the San Joaquin River Exchange Contractors Water Authority.
We are commonly referred to as the ``Exchange Contractors.'' It is my
honor today to address you on a matter of crucial importance to the
Exchange Contractors.
I am testifying here today to offer our comments on S. 27, The San
Joaquin River Restoration Settlement Act, introduced by Senator
Feinstein of California. I previously addressed the House Subcommittee
on Water and Power on September 21, 2006 regarding the proposed San
Joaquin River settlement. In addition, since I was not able to testify
at the March 1, 2007 hearing before the House Subcommittee, I sent a
letter to the Subcommittee indicating our support for the legislation
and identifying those portions of H.R. 24 that are of particular
importance to the Exchange Contractors. Over the past several months,
we have diligently worked with the settling parties and other affected
third parties to ensure that the adverse impacts of the actions to
restore the San Joaquin River are mitigated.
The Exchange Contractors is a joint powers authority comprised of
four water entities that irrigate 240,000 acres of prime agricultural
land in the San Joaquin Valley. We are located along the San Joaquin
River directly downstream from Friant Dam to the confluence of the
Merced River. The four agency members include the Central California
Irrigation District, Columbia Canal Company, Firebaugh Canal Water
District, and San Luis Canal Company.
The Exchange Contractors are an essential party to the
implementation of this legislation as our lands are directly downstream
of Friant Dam and abut a majority of the San Joaquin River where the
fish restoration program will be implemented. In addition, our water
supply facilities and the levees that protect our lands are located in
this stretch of the river and will be impacted by the new operations
required to restore the fisheries.
The comments of the Exchange Contractors are limited to those areas
of the proposed legislation that are particularly important to us. When
considering this legislation it is important to keep in mind that it
will implement a Settlement Agreement negotiated by parties to
litigation that did not include the Exchange Contractors or many other
parties, including private landowners, affected by the terms of the
settlement. Needless to say, while we support the legislation, it is a
product of compromise.
The proposed Settlement will obligate the Bureau of Reclamation to
release water from Friant Dam in order to protect downstream fisheries.
To make this restoration possible, substantial physical changes need to
be made both to the river and to facilities downstream of the dam. For
instance, it will be necessary to rehabilitate and in some places
restore the river channel so the water can flow and fish will have
habitat sufficient for their several life stages. In addition, it will
be essential to protect the downstream water systems and the adjacent
private property and livelihoods of the farmers and other citizens
along the river.
Among the changes to the river that will be needed are in-stream
improvement measures, rehabilitation of miles of existing levees to
prevent flooding and seepage, the construction of new levees where none
exist, reconstruction of water diversion facilities and small dams that
were not constructed in a manner consistent with the new operating
regimen that will be required under the settlement, improvements to
some of the downstream flood by-pass structures, and the construction
of fish screens.
The restoration of the San Joaquin River has far reaching impacts
for all the residents of the San Joaquin Valley and the State. It is
imperative that the third parties have a voice in this complicated,
lengthy and costly process. For example, it is of vital importance that
the landowners along the San Joaquin River in the area known as Reach
4b have a voice in the restoration process. The San Joaquin River holds
to a defined channel in its upper reaches, but in the Reach 4b area
historically it would spread into many ``braided'' channels as it
reached the flat valley floor. The flows called for in the Settlement
are exponentially greater than the existing capacity of Reach 4b and
other reaches and if the river floods in the areas it will severely
impact the families that live and farm along this stretch. To address
this concern, the bill requires that the impacts of restoration in
Reach 4b be studied carefully and completely, and that prior to
introducing any high level flows a report on the feasibility of
restoring this section of the river be submitted.
Cost-benefit is one measure that will have to be considered when
studying the feasibility of using Reach 4b. It is also important that
Congress understand the challenge of moving fish through this reach.
Among these challenges will be the acquisition of 1000's of acres of
farmlands in order to create a stream channel of sufficient width and
depth to convey flow of at least 4500 cfs. In addition, new levees will
be have to be constructed to protect the adjacent lands from surface
flooding and sub-surface seepage, and a new stream channel will need to
be constructed in a fish friendly manner.
The San Joaquin River stretches for miles below the Friant Dam and
every reach has its own unique characteristics. The proposed
restoration will affect every mile of the San Joaquin River and there
are many landowners who will be affected. Therefore, it is essential
that adequate funds be appropriated from both the federal government
and the State of California. It is also essential that the affected
third parties have a place at the table to make sure this program is
implemented in a manner that mitigates the impacts it causes on
adjacent private property and facilities owned by others.
It was a central condition of the Settlement Agreement that there
be no adverse impacts to third parties. The original draft of the
proposed legislation accompanying the Settlement Agreement would have
adversely impacted the Exchange Contractors and others. Fortunately, we
were able to address these concerns in a constructive manner. With the
assistance of Senators Dianne Feinstein and Barbara Boxer and House
Members Radanovich, Cardoza, Costa and Nunez, and former Member Pombo,
the third parties, the settling parties, representatives from the State
of California, representatives from agencies of the Departments of
Commerce and Interior, and the Justice Department, developed over the
course of weeks of intensive negotiations the key terms of the
legislation that you are currently considering. As you can appreciate,
these negotiations were intensive, but we believe have resulted in a
balanced program.
The areas of major concern to the Exchange Contractors were:
<bullet> protection of the Exchange Contractors' senior water rights;
<bullet> coordination and protection of the continued operation of
our water supply facilities in a way that would not conflict
with the Endangered Species Act;
<bullet> the provision of adequate funding for the proposed
restoration program so that there would not be a partially
completed program similar to the half-completed drainage
program; and
<bullet> that the third parties would be given an opportunity, on par
with that of the settling parties, to provide input into the
development and implementation of the restoration program.
As I stated in my prior testimony before the House Subcommittee,
``inclusion of the above protections in the . . . legislation is
essential for our support . . .'' I believe we have essentially
achieved these protections. In addition, in February of this year we
completed a memorandum of understanding with the Bureau of Reclamation
that will provide us with the opportunities for input into the
implementation of the settlement that we seek. Completion of this MOU
was an essential component of our support.
In sum, I believe all of the parties to the legislative
negotiations and settlement will agree the legislation you are
considering is a balanced proposal that addresses both the needs for
fishery restoration and reliable water supply. Of course, in order to
maintain this balance, it is essential that sufficient funds be
appropriated to achieve the goals of the restoration program.
While I will not recite to you here those areas of the legislation
that are of particular concern to the Exchange Contractors and
downstream landowners, my written testimony does specifically identify
those provisions that are essential to our support of this program. I
will note that other parties have provisions that are essential to
their support, and as such, this legislation is a package. If the
substance of the legislation is significantly changed, parties may no
longer be in a position to remain supportive.
The provisions of key importance to the Exchange Contractors are:
<bullet> Water supplies above that contributed by the Friant Unit
will only come from willing sellers and not by eminent domain.
(Sec. 4(a)(3))
<bullet> The subsequent use of water released from the Friant Unit
will be made in a manner consistent with California water law.
(Sec. 4(a)(4)(B))
<bullet> The Secretary of the Interior will enter into a MOU with the
third parties. (Sec. 4(b)(2))
<bullet> Prior to implementing measures to construct, improve,
operate or maintain downstream facilities, the Secretary will
identify the impacts and mitigation measures that must be
implemented in order to mitigate impacts on adjacent and
downstream water users and landowners. (Sec. 4(d))
<bullet> The settlement will not have any impact on, amend or modify
the rights of the Exchange Contractors under their exchange
contract. (Sec. 4(g))
<bullet> If the Secretary needs to acquire property in order to
implement the settlement, in the first instance, the Secretary
will seek to acquire property from willing sellers. And, if
after acquiring property through an eminent domain it is
determined that the property is not needed, the Secretary will
offer the property back to the owners from whom it was taken.
(Sec. 5(b)(1) and (2) and Sec. 5(c)(2))
<bullet> The recognition in section 7 that the settlement comprises
the comprehensive plan for the reestablishment of fisheries in
the San Joaquin River pursuant to Section 3406(c)(1) of the
Reclamation Projects Authorization and Adjustment Act of 1992,
commonly referred to as the Central Valley Project Improvement
Act or CVPIA. (Public Law 102-575; 106 Stat. 4721) (Sec. 7)
<bullet> The legislation authorizes funds that together with funds
from the Friant contractors and the State of California should
be sufficient to address rehabilitation of that portion of the
San Joaquin River upstream of the area known as Reach 4b. (Sec.
9)
<bullet> The legislation prohibits the shifting of costs to implement
this restoration program to third parties. (Sec. 9(a)(3))
<bullet> Reach 4b will not be developed for the passage of fish until
a full study of the feasibility and practicality of expanding
this stretch of the river is completed, including cost
estimates, and addressing the question of whether it is cost-
effective. (Sec. 9(g))
<bullet> Designation of the spring run Chinook salmon to be
reintroduced into the San Joaquin River as an experimental
population pursuant to Section 10(J) of the Endangered Species
Act. (Sec. 10(b))
One item that I did not list above, but which is relevant to the
successful implementation of this legislation is that in the event the
Secretary acts in an unreasonable manner, we will have a right to
challenge that action under the Administrative Procedures Act. (Sec.
8(b))
In conclusion, it is the view of the Exchange Contractors that S.
27 is a balanced bill that protects the fish and the farmers. We are
appreciative of the Subcommittee's consideration of this legislation
and your attention to the issues of concern to us. For your
convenience, I ask that both my testimony before the House Subcommittee
on Water and Power and my letter of March 1, 2007 be included in the
record.* I have provided the Subcommittee with both hard copies and an
electronic version of those documents.
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*The items have been retained in subcommittee files.
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Thank you again for the invitation to testify before this
Subcommittee today. If you or any of the Members have questions I will
be happy to answer them.
Senator Cantwell. Thank you, Mr. Chedester, for your
testimony. We appreciate you being part of this panel today.
Mr. Robbins.
STATEMENT OF KENNETH M. ROBBINS, GENERAL COUNSEL, REPRESENTING
MERCED IRRIGATION DISTRICT, MERCED, CA
Mr. Robbins. Good morning, Madam Chair, Senator Corker, we
appreciate the opportunity to talk to you this morning.
My name is Kenneth Robbins, I am the general counsel to the
Merced Irrigation District. I also represent a group of
agencies known as the San Joaquin Tributary Association--these
are agencies that hold water rights and facilities on the
Merced River, the Tulare River, the Stanislaus River North of
the area affected.
Much has been said about the San Joaquin River having been
interrupted for 5 or 6 decades, however, not all of the San
Joaquin River has been dried up. It actually begins again at
the confluence of the Merced, where our projects provide a
water that begins the river again.
Our projects involve dams that are on those facilities that
provide both agricultural and urban water, recreation,
hydropower, flood control--all of the usual things that local
public agencies do for their citizens in these kinds of
projects.
Our concern with the settlement was, initially--I mean, the
San Joaquin River system is a very complex system--when you
wiggle one part of it, obviously it's going to affect the other
part.
Our rivers sustain a fall-run Chinook salmon, which has a
different life cycle than the spring-run, which is about to be
reintroduced into the system. Our concern was the interplay of
these two species, and the different needs for habitat they
had, that they both be accommodated.
Through the negotiation process, we believe that we have
achieved that balance, and are firmly in support of S. 27, and
appreciate the opportunity to express that support.
We have been able to place a couple of provisions into the
bill as it currently stands, that will protect all of the
agencies--not just ours--but all of the agencies from the
potential adverse impacts that an endangered species
designation might have from the reintroduction of a threatened
species, spring-run species, onto the system. It's being
reintroduced as an experimental population, which is exactly
what it is.
We're also to be protected under the legislation for the
duration of the settlement, or until 2025, I believe it is,
when the settlement itself may be re-looked at in terms of
water supply. So that all of the other tributaries to the river
will essentially achieve the same protections. Our concern has
also been how the process will actually be implemented, for
instance, the timing of water arriving at the confluence of the
Merced is an issue because of temperature differentials, needs
at different times of the year for different species.
We have successfully negotiated a Memorandum of
Understanding, as Mr. Chedester's indicated, with the Bureau,
which will allow us to input to the process that's been set up
by the settlement for being able to adapt the process of
restoring the river, and when flows will be achieved, et
cetera, so that all of the species on the river--not just the
spring-run--will be accommodated, and that's possible to do by
simple adaptations that occur relative to timing of flows, the
implementation of physical fixes to the River, and protections
that are necessary for reintroducing the species.
Finally, I think it's very important to understand that the
third-parties are very much sympathetic to the settling parties
in this issue. I mean, it has long been a concern of ours--
particularly in Merced--that we were the new head waters,
essentially, of the San Joaquin River. And that imposed burdens
upon the tributaries that were out of proportion to their size.
The reintroduction and the reopening of the San Joaquin
River will spread the burdens that are associated with water
operations on the San Joaquin amongst all of the parties, and
if the mitigation projects that are suggested by Friant are
able to be implemented, most of the parties will be reasonably
whole--both from a water-supply standpoint, and from a
regulatory operations standpoint.
So, once again, on behalf of the third-parties, the
tributary agencies on the other rivers that tributary to the
San Joaquin, we support the bill, and the balance in the bill,
and are available for questions.
[The prepared statement of Mr. Robbins follows:]
Prepared Statement of Kenneth M. Robbins, General Counsel, Representing
Merced Irrigation District, Merced, CA
Good morning, Acting Chairwoman Cantwell and members of the
Subcommittee. My name is Kenneth Robbins. I am General Counsel for
Merced Irrigation District. I am pleased to have the opportunity to
testify today regarding S. 27, the San Joaquin River Restoration
Settlement Act, introduced by Mrs. Feinstein, that would implement the
settlement agreement reached by the parties to the Friant litigation.
The Merced Irrigation District is part of the San Joaquin
Tributaries Association (SJTA), a group of five associated eastside
Irrigation Districts with water storage and hydroelectric facilities
located on the three principal tributaries to the San Joaquin River.
These agencies, in various combinations and partnerships, provide flood
control, urban, agricultural and environmental water supply, retail
electric service, and recreation facilities to California's northern
San Joaquin Valley.
The SJTA, including the Merced Irrigation District, is supportive
of the goals of the settlement. The Districts are confident the
settlement can be implemented in a manner that ensures both the
restoration of the San Joaquin River and the mitigation of impacts from
such an undertaking on third parties. The District believes the
settling parties when they say they do not intend to impose impacts on
third parties.
I testified previously on this subject before the House Water and
Power Subcommittee last fall and again in March of this year. Much of
my earlier testimony contained background information that is pertinent
to the issue before you. Rather than repeat that information, I
respectfully request that my earlier testimony and that of Mr. Allen
Short, General Manager of the Modesto Irrigation District, be
incorporated as part of the record of this hearing. The testimony is
hereafter attached. We stressed at that time that the third parties
were supportive of the settlement. We continue to support the efforts
of the settling parties and the legislation as introduced.
The legislation before you is the product of months of hard work by
the parties to the litigation as well as the third parties, and could
not have been successfully negotiated without the efforts of Senators
Feinstein and Boxer, Congressmen Radanovich, Cardoza, and Costa, and
their excellent staffs. We are grateful to them for their support of
this legislation that is so vital to the San Joaquin Valley.
The settlement package negotiated by the parties to the NRDC v.
Rodgers litigation included proposed legislation to implement the
settlement. While we felt that the legislation was a good start, it did
not, by itself, provide the kind of third party protections needed to
make good on the promise by the settling parties that the settlement
not impose substantial third party impacts.
Speaking for my client, the Merced Irrigation District, and the
SJTA, S. 27 as it now stands provides the protections that are
necessary for us to support the settlement.
I want to now focus my discussion on Section 10 of the Act. The
third parties offered language to amend the legislation originally
proposed by the settling parties. These amendments were made to protect
the Eastside districts, as well as the San Joaquin River Exchange
Contractors, other water users on the mainstem San Joaquin River, and
the U.S. Bureau of Reclamation and the California Department of Water
Resources and their contracting agencies, from the unintended
consequences of introducing a federally-listed threatened species of
Chinook salmon into the San Joaquin River. Section 10 was added to
provide for the reintroduction of Central Valley Spring Run Chinook
Salmon without impacting the third parties and to permit the
restoration of the San Joaquin River to move forward in a cooperative
manner.
The first thing to note is that Section 10(a) makes a finding that
the settlement and the reintroduction of the Central Valley Spring Run
Chinook Salmon is a unique and unprecedented circumstance requiring
clear Congressional intent to ensure that the goals of the settlement
are accomplished. Section 10(b) of the Act states that the
reintroduction of Spring Run Salmon shall be made pursuant to Section
10(j) of the ESA, provided that the Secretary of Commerce makes the
requisite regulatory findings.
Section 10(j) of the ESA authorizes the Secretaries of Commerce or
the Interior to release ``experimental populations'' of threatened or
endangered species outside the current range of the species in order to
further the conservation of the species. 16 U.S.C. Sec. 1539(j). At the
present time, NMFS has not adopted regulations concerning experimental
populations, although it is permitted to do so under the ESA. The U.S.
Fish and Wildlife Service (USFWS) however, has adopted regulations
under Section 10(j).
``Experimental population'' means a designated population,
including subsequent off-spring, which can be introduced into an area
where it is ``wholly separate geographically from nonexperimental
populations of the same species.'' 16 U.S.C. Sec. 1539(j)(1); 50 C.F.R.
Sec. 17.80(a). When a population is designated ``experimental,'' it is
treated as if it were listed as a threatened species, rather than
endangered. 16 U.S.C. Sec. 1539(j)(2)(C); 50 C.F.R. Sec. 17.82. A
``nonessential experimental population'' means an experimental
population whose loss would not appreciably reduce the likelihood of
the species' survival in the wild. 50 C.F.R. Sec. 17.80(b). If an
experimental population is deemed nonessential, no critical habitat
designation is made for the population. 16 U.S.C. Sec. 1539(j)(2)(C);
50 C.F.R. Sec. 17.81(0. In addition, for purposes of Section 7
consultations, nonessential experimental populations are treated as
species proposed to be listed under Section 4 of the ESA, rather than
threatened or endangered. 16 U.S.C. Sec. 1539(j)(2)(C)(i).
The SJTA believes that in order to protect third party interests
from unintended impacts of the settlement, it is both reasonable and
essential for the Secretary of Commerce to issue a final rule pursuant
to Section 4(d) of the ESA that will govern the incidental take of the
Central Valley Spring Run Chinook Salmon prior to its reintroduction in
the San Joaquin River. Included in the final 4(d) rule should be a
provision to ensure that third parties not suffer water supply impacts
as an indirect effect of the San Joaquin River restoration and that
current lawful operations in the San Joaquin River watershed--including
tributary water supply and hydroelectric operations on which the SJTA
districts and their citizens are critically dependent--would not be
subject to ``take'' under the ESA. S. 27 contains a provision that
provides that the reintroduction of the Central Valley Spring Run
Chinook Salmon not impose more a than de minimis water supply
reductions, additional storage releases, or bypass flows on third
parties. We support this language as it is currently written.
With regard to the ``wholly separate'' criterion, the
reintroduction of Central Valley Spring Run Chinook Salmon to the San
Joaquin River should qualify as no other populations of Central Valley
Spring Run Chinook Salmon exist on the San Joaquin River or its
tributaries. Indeed, to reintroduce them, individuals or eggs of
Central Valley Spring Run Chinook Salmon on the Sacramento River will
have to be transported to the San Joaquin River, likely in multiple
years.
With respect to the required finding that the experimental
population's loss would not appreciably reduce the species' likelihood
of survival, it would be difficult to understand how the Secretary
could find that the population to be reintroduced is ``essential to the
continued existence of the species'' and still remove it from a much
more friendly habitat--particularly in light of its threatened status
rather than endangered. One would reasonably conclude that the fish
would not be taken from their original habitat for such an experiment
if they were in fact ``essential.''
This protects all San Joaquin River and tributary water, power and
flood control operations in three ways. First, if the experimental
reintroduction of Central Valley Spring Run Chinook Salmon cannot be
sustained based upon the actions of the settling parties, the Eastside
Districts will not be required to release additional water, change
operations, or commit resources to make up the shortfall. Second, if
the experimental reintroduction is successful, such success will
demonstrate that the current lawful operations of the five Eastside
districts have no detrimental effect on the reintroduced Central Valley
Spring Run Chinook Salmon. Third, the designation of the reintroduced
Central Valley Spring Run Chinook Salmon as a nonessential experimental
population protects the water users while the experiment is in effect
and allows an opportunity for the third parties, the State of
California, the settling parties and the federal government to develop
a longer term Habitat Conservation Plan.
S. 27 also protects the Merced, Turlock and Modesto Irrigation
Districts from having to mitigate impacts to the experimental
population of Central Valley Spring Run Chinook Salmon prior to 2026
when their hydroelectric projects are relicensed by the Federal Energy
Regulatory Commission (FERC) in 2014 and 2016. The Merced Irrigation
District and the other eastside districts need the same level of
protection as is afforded to the U.S. Bureau of Reclamation under the
terms of the settlement. Under the settlement there is no re-opener for
twenty years, until 2026, for the release of additional water from
Friant Dam. The Third Parties need this same protection for their FERC
relicensing. Merced Irrigation District's current FERC license expires
in 2014, while Modesto Irrigation District and Turlock Irrigation
District will seek to relicense their Don Pedro Project in 2016. The
National Marine Fisheries Service has mandatory conditioning authority
under Section 18 of the Federal Power Act and Section 7 of the ESA to
condition these licenses with terms and conditions related to the
reintroduced, experimental population of Central Valley Spring Run
Chinook Salmon. The Districts are agreeable to have a reopener clause
in their new FERC licenses to specifically address the population's
status when the experiment is concluded or reviewed in 2024.
In recognition of this unique circumstance, S. 27 provides that the
Secretary of Commerce exercise its authority under Section 18 of the
Federal Power Act by reserving its right to file prescriptions until
after the settlement terminates or December 31, 2025. This protects all
FERC projects on the San Joaquin River and its tributaries from
potential unreasonable mandatory conditions placed in their licenses to
protect a reintroduced, experimental population. The time to address
this issue is when flows on the entire river system may be revisited
for Spring Run Salmon as set forth in the Settlement Agreement.
Following the agreement on the legislation which is now S. 27, the
Stipulation of Settlement was approved by Judge Karlton on October 23,
2006. The SJTA filed an amicus curiae brief supporting the proposed
settlement and also identifying for the judge the potential third party
impacts from the settlement as proposed. Those concerns have been
satisfactorily alleviated by S. 27.
The third parties, including the SJTA, plan to be active
participants in the restoration efforts on the San Joaquin River. The
final major activity involving the third parties was the development of
a Memorandum of Understanding (MOU) with the United States Bureau of
Reclamation. The settlement and the draft legislation did not provide a
direct vehicle for third party participation. To that end we have
approved a MOU that will allow the third parties to provide meaningful
input into the restoration activities and to coordinate our ongoing
operations on the tributaries and mainstem with those of the
Restoration Administrator and the other restoration participants.
The MOU is necessary because the five eastside irrigation districts
of the SJTA have expended substantial amounts of water and money to
restore the Fall Run Chinook Salmon fishery on the Merced, Tuolumne and
Stanislaus Rivers. These efforts include active participation in, and
funding for the San Joaquin River Agreement, the Vernalis Adaptive
Management Plan (VAMP), Federal Energy Regulatory Commission (FERC)
proceedings, on-going district funded fishery and habitat studies and
monitoring and restoration activities, and the Merced River Fish
Hatchery. These efforts were covered in my September 21, 2006,
testimony to the House Water and Power Subcommittee.
This concludes my testimony. Madam Chairwoman, thank you for the
invitation to testify before this Subcommittee today. I will be happy
to answer any questions members of the Subcommittee may have.
Senator Cantwell. Thank you, Mr. Robbins.
Mr. Ishida, thank you for being here.
STATEMENT OF ALLEN ISHIDA, CHAIRMAN, TULARE COUNTY BOARD OF
SUPERVISORS, VISALIA, CA
Mr. Ishida. Madam Chair, Senator Corker. My name is Allen
Ishida, I am a third-generation Tulare County citrus farmer,
Friant water user, and the chairman of the Tulare County board
of supervisors.
I appreciate this opportunity to appear before you to
provide my perspective of the San Joaquin River settlement. I'm
not representing a third-party, we were not invited to the
party. So, we're just out in limbo.
As an elected official, we look at this settlement
differently. It is not just a settlement between farmers and
environmentalists, it's a bigger issue to us than farmers and
environmentalists.
In the documents that I placed into the record earlier,
there are resolutions supporting mitigation for loss of the
surface water from Tulare and Kern County Boards of
Supervisors, and all eight of our Tulare County incorporated
cities. There are also resolutions requesting specific
mitigation measures.
There are letters supporting mitigation from the Community
Water Center/the California Rural Legal Assistance Foundation,
Self-Help Enterprises, and the Plain View Mutual Water Company.
There are some maps, which are very vital to understanding
the issues of our residents in Tulare County which pertain to
nitrate contamination of our groundwater.
Tulare County does not want to impede the implementation--
--
Senator Cantwell. Mr. Ishida, do we have a copy of that
map?
Mr. Ishida. It was submitted.
Senator Cantwell. It's been submitted to staff, we will try
to--we have a larger map, but I think you're indicating
something more--if staff could get a copy of the map from Mr.
Ishida, that would be helpful. Thank you.
Thank you, Mr. Ishida, sorry to interrupt your testimony.
Mr. Ishida. The top couple are representations of the
nitrate contamination issues we have in Tulare County.
Tulare County does not want to impede the implementation of
the settlement, but as I will outline in my testimony, we're
very concerned about water supply, and the economic impacts
within our county that will result from the implementation.
The county has suggested a number of mechanisms, for
inclusion in the legislation to mitigate those impacts, at
best, our suggestions have been rejected by the settling
parties.
However reluctant we may be to initiate some action, we may
have to explore the rights and remedies that can enforce to
enjoin the settlement's implementation.
Water, food, shelter are the three basic elements to life.
We, as elected officials, have a responsibility to secure safe
drinking water for our residents.
Tulare County is in one of the fastest-growing regions in
California. Our population will increase from 400,000 to
600,000 people within the next 20 years. Over 53 percent of our
population is Latino, over one-third of our population,
according to the 2000 Census, is under the age of 19. It is
currently estimated that our population right now is about,
over 60 percent of our population is under the age 27. So, we
are a very young county, and we will grow substantially just
from the residents that we currently have.
The future of Tulare County will depend on the quality and
quantity of water available to our residents. We have 288
public water systems in our unincorporated areas, and 42
percent of the systems currently have nitrate problems. And,
please refer to the map.
Most of these water systems are within 3 miles of the
current Friant Canal, and approximately 70 percent of our
Latino population lives within this zone.
The result of the proposed water released from the
settlement will have a significant negative impact on our
communities. The resulting overdraft will further decrease our
water quality.
In closing, I must emphasize that any changes to surface
water delivery from the Friant Dam, absent mitigation, will
undermine the very foundations of our economic success and
prosperity.
Thank you.
[The prepared statement of Mr. Ishida follows:]
Prepared Statement of Allen Ishida, Chairman, Tulare County Board of
Supervisors, Visalia, CA
My name is Allen Ishida, a third generation citrus grower in the
Lindsay--Strathmore area and the Chairman of the Tulare County Board of
Supervisors. I have spent over 20 years in the commercial real estate
business selling farm and subdivision properties in California before
returning to our family farm. I appreciate the opportunity to appear
before you to provide my perspective of the San Joaquin River
Settlement.
Let me begin by saying that this settlement threatens to turn back
the clock on an economic and environmental decision that was
deliberately made by your predecessors to address regional water
reliability. Therefore, the legislation being debated today represents
a significant departure from the seventy years of public policy that
created the most productive agricultural region in the world. Let me
also say that I do not oppose the efforts of the settling parties to
resolve the San Joaquin River dispute. I believe the restoration of the
river is a noble goal.
The original lands my family began farming were once dry land
barley fields. My father, uncles and grandfather developed this land
into citrus because of the availability of the new surface water from
the Friant Dam and the micro climate that is ideal for citrus. The
citrus industry in Tulare County is now a 500 million dollar business.
Our original properties are still solely reliant on the surface water
provided by Friant because the underground water is not available in
sufficient quantities. My family and I felt confident in the federal
government's implied promise to continue supplying water. We therefore
have invested our future in farming. During the 1970's and 80's, with
my father and brother, we purchased additional lands that had available
underground water. Whatever shortfall in water delivery from the San
Joaquin River Settlement, we will hopefully be able to make up the
difference by pumping from the underground aquifer.
The previous statement is from my perspective as a farmer. My
perspective as an elected official in one of the fastest growing
regions in California and my experience in the commercial real estate
profession is very different. 1 am very aware of the negative impact
pumping water from the under ground aquifer will have on the future
development and quality of life in my county and neighboring counties.
This settlement has a far greater impact on more than 400,000 Tulare
County residents who were not direct participants to this settlement.
Tulare County's population is projected to increase to over 600,000 in
the next 20 years. The future of our county will depend on the quality
and quantity of water available to our residents.
One of the main reasons for building the Friant Dam was to secure
an additional water supply to address ground water depletion due to
pumping water for agricultural and domestic uses, which resulted in the
1920's and 1930's. The new surface water provided by Friant reduced the
depletion of our underground water. However, this situation is not
static, and the demand for water to meet the growing demands of urban,
agricultural and environmental uses in the San Joaquin Valley now means
that the Valley currently experiences a water supply deficit of 1.1
million acre-feet in an average year, and 2.6 million acre feet in a
drought year. This deficit will grow if the Settlement is adopted as
proposed with out any mitigation plan for water supply losses. These
numbers show that we need additional surface water, not less.
In fact, I call your attention to three studies * from the
Northwest Economic Associates, University of California, and Friant
Water Users Authority that came to the conclusion that ground water
levels would nearly double in depth and pumping costs would
significantly increase as a result of the water releases required in
the Settlement. According to the studies, there would be serious
economic impacts to the region due to the loss of jobs and the
reduction of agricultural production.
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* The studies and other attachments submitted by Allen Ishida have
been retained in subcommittee files.
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Providing water in the quantity and quality to our communities is
one of the major challenges we are currently facing in Tulare County.
We have significant water quality issues with saline and nitrate levels
above California State water quality standards.
For example, the City of Lindsay (population 11,000), which
receives approximately 60% of its water from Friant, had to locate its
supplement water well 3 miles outside of the city limits because of
water quality. We currently are looking for new well sites for several
of our unincorporated communities whose water quality does not meet
state standards. The result of these proposed water releases from the
Settlement will have a significant negative environmental impact on our
communities. The potential increased overdraft of our underground water
table will further decrease our water quality.
In closing, I must emphasize that any changes to water deliveries
from the Friant Dam, absent mitigation, will undermine the very
foundation of economic success and prosperity in the Central Valley. A
promise to mitigate the loss of surface water from the San Joaquin
River Settlement is not adequate for my constituents. We are asking for
concrete mitigation language in the implementation legislation.
Thank you for this opportunity to express our concerns.
Senator Cantwell. Thank you, gentlemen, for all of your
testimony. And, as I said earlier, we're taking testimony from
other people that aren't here, just submitted statements and
exhibits, and we'll obviously leave the record open for 2
weeks, too.
But, Senator Corker, did you want to start with a round of
questions?
Senator Corker. Actually, I wanted to thank you for a great
hearing, and thank our witnesses for their testimony. I'm going
to need to step out, our staff will remain, and I'm certain,
especially with the last witness, there will be a lot of
questioning from you, and we look forward to the answers. But,
thank all of you for being here, and thank you for working so
hard on a very complex settlement.
Thank you.
Senator Cantwell. Thank you, Senator Corker.
Mr. Candee, I think I'll start with you, if I could. Why do
you think the Restoration Plan in the settlement will be
successful in restoring a sustainable salmon run?
Mr. Candee. Well, first of all, this is not the first time
that the parties to the litigation tried to reach settlement.
In the late 1990's there was an earlier attempt to reach
settlement, we actually put the case on hold for 4 years, and
with some support from the State of California and the Federal
Government, the Friant Water Users and the environmental
plaintiffs jointly commissioned a number of studies. One of the
things we studied is how to accomplish a complete restoration
effort, involving the fisheries and riparian restoration, et
cetera. A lot of scientific work was done, and from that work
we, I think, both sides came to the conclusion that spring-run
salmon was actually a very good species to focus on as the
primary opportunity for restoration.
As Mr. Grindstaff indicated, there are a lot of aspects
about the San Joaquin system that will support San Joaquin
salmon restoration, and spring-run salmon restoration, and, in
fact, I think a lot of the fishery agencies, and certainly a
lot of the fish biologists in the academic community think that
this may be one of the best chances to bring back this species.
So, we're optimistic, we think that the flows that are
called for in the settlement, the hydrographs are designed to
increase our chances of success with the least amount of impact
to the water supplies to the Friant farmers, and part of the
reason that the flows are being delayed, they're not going to
be implemented right away, is so that additional work can be
done on fish passage improvements, and other channel
improvements, to again, increase the likelihood of success.
Senator Cantwell. So, you think all of those things, is
that what you're saying?
Mr. Candee. Exactly.
Senator Cantwell. Restoration, fish passage, the flows.
Mr. Candee. Right.
Senator Cantwell. You think it is a combination of all of
those.
Mr. Candee. Yes. I mean, I think that fundamentally it's
the water that's been missing. The salmon species is incredibly
resilient, and as I mentioned in my testimony, even after
Friant Dam was built and it started to go into operation, the
spring-run salmon came back, and the State Department of Fish
and Game was successful in keeping the spring-run salmon going,
so the water is the most critical thing. These other things are
additional measures that will help--not only with the
restoration effort, but will, in particular, help reduce the
necessary amount of water, and therefore the water supply
impact.
I think one reason why there was a settlement was that it
was clear that it was in everybody's interest to try to work on
those other measures, but the key thing is the flows, and the
flows that are in the settlement have not only the flows that
we think as a base are necessary, but there's additional
flexibility for adding a buffer flow, when needed, and then
there's additional flexibility to purchase additional water,
when needed, from willing sellers.
Senator Cantwell. What about section 10? I'd like to ask
you about that, because the bill specifies a number of
protections for third-parties in declaring that spring-run
Chinook shall be reintroduced as an experimental population
pursuant to the ESA--so, does that diminish the discretion of
the Secretary of Commerce, what they would normally have in
reintroducing a species as an experimental population? Do you
think that impacts their discretion?
Mr. Candee. The National Marine Fisheries Service was
actually in the room when that section was revised, in Senator
Feinstein's conference room, and the question that the Justice
Department, the Commerce Department, the Interior Department
were asked repeatedly, is: Can you live with this? This
approach?
One of the things that they told us in those negotiations
was that there has not been a lot of experience at the National
Marine Fisheries Service with reintroduction of listed species,
but there has been more experience at the Fish and Wildlife
Service, and they look to the Fish and Wildlife Service for
guidance. And their own internal review indicated that the
experience of the Fish and Wildlife Service indicated that they
would probably do exactly what's mapped out in section 10,
anyway. That that would be the course of action they would be
likely to act on.
So, we in the environmental community, and I think the
Government people as well, and Senator Boxer's staff and
Senator Feinstein's staff were all trying very hard not to
constrain the implementation of the Endangered Species Act, and
elsewhere throughout the settlement bill, it's clear that this
is supposed to be implemented consistent with Federal law.
Senator Cantwell. Okay, Mr. Dooley, obviously representing
the Friant Water Users--there's an article in the Sacramento
Bee that referenced a study that said that the settlement
requirement put about 3,000 people out of work, as a result of
agriculture production falling, 159 million annually. Do you
believe that study? And if you do, why did you agree to the
settlement?
Mr. Dooley. Well, let me restate what I said earlier. We
agreed to the settlement because the alternative of letting the
judge determine the result was likely to be far worse. And, so,
quite candidly, it was a business decision that the way to
minimize the impacts of restoration of flows to the San Joaquin
River was through a negotiated settlement as opposed to the
meat cleaver approach that the judge was likely to impose upon
us.
And, the judge was likely to retain jurisdiction and if
fish didn't come back in year one, he had the flexibility to
increase the flows in the following year, so we would not know
from year to year how much water would be required.
That study was prepared by our expert, and it assumed that
if you restored the flows contemplated by this settlement, or
that were proposed by the Plaintiff's expert, and made no other
changes in the way the project was operated, assumed that it
was operated as it has been historically operated, that's what
the impacts were likely to be.
Of course, we don't intend to operate as we historically
have, and included in the settlement are provisions that
provide for recapture of some of the water that's released for
restoration, and for implementation of other water management
measures that would substantially reduce the impacts over time.
We fully expect that many of those measures will be in
place before the full restoration flows begin in 2014. So, in
my humble opinion, and I should emphasize that I'm a fifth
generation Tulare County farmer, and certainly our family's
operation is in the area impacted by the delivery of Friant
supply, I have a keen personal interest in making sure that
there aren't longstanding, significant, adverse effects of this
settlement.
But I fully believe that before it's all said and done,
there will be no land taken out of production as a result of
the implementation of this settlement, that the--that my
clients, the water managers within the Friant Water Authority,
will be as creative in the future as they have been in the
past, and implement programs that will effectively mitigate the
impacts of the restoration of flows on the river.
Senator Cantwell. What about the concerns raised by Mr.
Ishida?
Mr. Dooley. Well, I would say this--all of my clients share
the basic concern about not having longstanding water supply
losses in the area. The question is: How do you address those
losses? We have shared some concerns with Mr. Ishida about his
proposed amendment, because it presupposes a particular fix on
recirculation, which we're not prepared to say, at this stage,
to say is the, necessarily, the right fix. We certainly think
it's one of the things that should be evaluated by the
Secretary of the Interior in preparation of the plan that's
required by the settlement and the legislation.
There are agricultural concerns about groundwater quality,
certainly, that are existing today, and quite candidly, in my
opinion, are unrelated to whether there's a settlement or not.
Those water quality issues need to be addressed, and
regardless of whether there's a settlement of this longstanding
litigation, I think one thing can be said for sure, that the
Friant Water Users Authority intend to push very hard to make
sure the water management goal of the settlement is fully
implemented. And we believe that if it is, that there will be
substantial, if not complete, reduction or mitigation of the
water supply impacts of restoration of flows.
But, the bottom line is that we were able to negotiate a
settlement that results in about a 15 percent reduction in our
water supply and we were fearful of a 30 or 35 percent
reduction in our water supply, if the judge was left to make
the determination. So, we think in terms of the long-term
future, certainty of water supply, this settlement goes a long
ways to providing that certainty and gives us a lot of tools to
make sure we can develop additional water management programs
to offset the losses.
Senator Cantwell. Thank you for that answer. I think it's
safe to say there's a lot riding on the water management plan
in this settlement agreement.
Mr. Dooley. Of course there is.
Senator Cantwell. Mr. Ishida, what specific language are
you looking for?
Mr. Ishida. I believe we're looking for concrete mitigation
solutions in the litigation. I believe as Mr. Dooley does, I
believe we can solve the loss of the surface water through
mitigation efforts, it depends on how much money the Federal
Government and the State government and the county government
has to mitigate, to spend for the mitigation.
I would like some concrete assurance in the legislation
stating that there will be mitigation for this water loss.
We've had, experienced in the past where the Bureau has
promised mitigation efforts, and they still haven't been built.
So, I'm just trying to protect our residents.
Senator Cantwell. Thank you. If I could, Mr. Robbins, you
mentioned that the irrigation districts that you represent are
trying to address the related issues to the fall Chinook run.
Are these decisions that, or actions that you're taking based
on the biological opinions?
Mr. Robbins. No, the biological opinion doesn't apply to
the fall-run, it's not either threatened or endangered, it is a
species of concerned.
But, of course, if spring-run comes back into the system,
and is reintroduced, that changes the mix entirely. The needs,
the timing of water, the temperature of water, a change--there
is a different between spring-run and fall-run. So, our issue
was to make sure that whatever was implemented would be
adaptable, so that it could be managed, that both species could
survive and flourish, and that one would cancel the other out.
Now, we fully expect to see a spring-run back on our
tributaries, not just on the San Joaquin--I mean, that would be
a natural function of the reintroduction of the species, and
that's why eventually, we would expect to deal with them on the
tributaries as well. And that's why you see in the legislation
the experiment, the 10(j) language, followed by the Federal
Power Act language, to ensure that the protections afforded in
the settlement go all the way through the experiment period, or
at least through 2025 are present. But, we will have to address
this at some point in the future.
Senator Cantwell. Okay, Mr. Grindstaff, your testimony
indicates that California is prepared to spend, or will spend,
I should say, $18.3 million for the 2007-2008 budget in support
of the settlement.
Mr. Grindstaff. That's correct.
Senator Cantwell. What is the extent of the channel
restoration, levy reinforcement, water management and
mitigation efforts?
Mr. Grindstaff. Well, the first thing we really need to do
is to develop the plan more substantively. So, this $18 million
goes a long ways towards getting the plan to the place where we
can implement it. The State of California probably has upwards
of a couple hundred million dollars that could be dedicated
towards the purposes of this restoration.
First, there's $100 million specifically dedicated in Prop
84, there's additional money for water management activities
for the San Joaquin Basin, it's a part of Prop 84, we have a
number of pots of money that will be specifically available.
We have, in what's called Proposition 1E, money available
for dealing with levies and plug management. So, our
expectation is that there are a lot of resources available,
they will need to be matched with Federal funding, and the
State legislature, as you can imagine, they are asking us, is
the Federal Government willing to step up and be apart of this,
so that when we dedicate our State resources, we can be assured
that the Federal Government will be a part of this effort? But,
we have money available that's allocated to the San Joaquin,
and we have the potential for significant additional resources,
provided, of course, that we really have the Federal Government
step up.
So, moving ahead on this bill is really important from that
perspective. I personally have been asked the question by
members of our State legislature: Are you really going to get
support on the Federal side? They haven't felt that the Federal
Government has always come through and I think we have
agreement this year that $18 million is going to go through,
and we're going to fund this, but they really would like to see
something move, so that there is that commitment.
Senator Cantwell. Having been a former State legislator, I
can understand that question, but now being in this body----
Mr. Grindstaff. Now you're on the other side.
[Laughter.]
Senator Cantwell. I want to know that they're going to put
up the resources.
Mr. Grindstaff. They are, they are going to, and they have,
in fact, for this coming year, committed to the $18 million.
Senator Cantwell. Thank you.
Mr. Chedester, can you tell me about Reach 4b and your
concerns and what we need to do there? And, can we achieve
that? Can we achieve the flows and capacity that we need to?
Mr. Chedester. Coming from a technical background, you just
need enough money, you can build anything. So, yes, is it
possible. But, I think to your question, is that Reach 4b today
cannot handle the flows, the restoration flow. There's no
doubt. The flows that are required in the settlement are about
4,500 cubic feet for second, the flow of that channel today is
probably 100 or 200. So, substantial changes in the system will
be required, or at least studied.
The settlement in the legislation contemplates that Reach
4b might be the path that gets used for the fish passage, or
there's a corresponding levy system, it's called a flood-bypass
system that exists that might also be used.
Legislation says we need to do a study in that area to see
what, if it's feasible to use 4b, because of those flow issues
that you would take so much resources, money, to mitigate,
design and build a flood, deconstruct a river there, and maybe
it's better to use another pathway. That's one of the first
things that in the legislation that we have to take a look at.
That study then comes back to the Secretary and they take a
look at that with all the other costs, and make sure that they
have enough resources to go forward, and then decide which way
to go.
So, the answer to the question today, can we handle it? No.
If we try to put those kind of flows down there today, it would
flood out tens of thousands of acres.
Senator Cantwell. So, what do we do if we find out that we
can't enhance that section of the river to the capacity we'd
like?
Mr. Chedester. I believe there is a flood bypass system
that is in existence, and it's called the East Side Bypass, and
it could be used to push the flows through, and actually
today--if you did nothing today, flows go down that river, not
in Reach 4b, but right where that bypass begins, again, it's
kind of a complicated system, but flows of that magnitude go
through that part of the river, the bypass, today. So, you
could handle those flows, today, through that system, the
problem is, it's not designed for fish habitat, it is designed
as a flood bypass, which means it has no vegetation in it.
Senator Cantwell. Mr. Grindstaff, is there a dollar amount
that you've looked at for this part of the project?
Mr. Grindstaff. There's not a dollar amount that I am aware
of, it is something that we need to look at closely, and figure
out how we would deal with the issue.
Senator Cantwell. But would you say it's a significant
portion of the settlement? Improvements that need to be made?
Mr. Grindstaff. It may be, I'm not an expert in this area.
Senator Cantwell. Mr. Dooley.
Mr. Dooley. Madam Chair, if I could respond, I think all of
the settling parties, and certainly the Department of Water
Resources, have taken a look at sort of gross cost numbers, and
there's a significant range that was developed which is
dependent, in part, on what standards you have to build levies
to.
But, everybody's estimate is that, the Reach 4b issue is a
significant part of the cost, whether it's the high estimate,
or the low estimate, it's--proportionally, it's a significant
part of the cost for a lot of the reasons that Mr. Chedester
mentioned. And, I think one of the reasons the legislation has
the provisions in it, is none of us want to have that Reach
consume all of the available funds for implementing the
settlement. If it isn't feasible to restore the historic
channel, then I think we all believe it would be significantly
less expensive to do the work necessary in the bypass channel
to manage the flows in that section of the river.
But, the point is, we're not in a position to make that
determination until additional design and engineering work is
done to determine whether it is feasible or not.
Senator Cantwell. Well, I want to thank all of you for your
testimony today, I'm sure that my colleagues will appreciate
you being here today, we will leave the record open, as I said,
for 2 weeks for additional questions from members, and if you
could respond expeditiously to that, I would appreciate it.
I thank you for your work in working together to achieve
this settlement. I think that you are on the doorstep, though,
of a tremendous amount of continuing work. I'm not sure what
this portends for the rest of us who deal with these challenges
throughout the Pacific Northwest, hopefully you will pioneer
some good, successful results that we can learn from, and
certainly we can learn from the fact that 18 years bringing us
to where we are today, there probably are some paths to shorten
that for other communities.
So, thank you for sharing your experiences with us today,
the Committee is adjourned.
[Whereupon, at 11:55 a.m., the hearing was adjourned.]
APPENDIXES
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Appendix I
Responses to Additional Questions
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Responses of Daniel M. Dooley to Questions From Senator Bingaman
Question 1a. Your testimony indicates that the average annual
impacts to the Friant Water Users from the settlement will be a
shortage of 170,000 acre-feet.
Do you think that the Water Management Goal in the settlement is
certain enough to mitigate a substantial portion of this shortage?
Answer. The Water Management Goal contained in paragraph 16 of the
Settlement requires the Secretary of the Interior to ``develop and
implement'' a plan for recirculation, recapture, reuse, exchange or
transfer of the Interim Flows and Restoration Flows required by the
Settlement for the purpose of reducing or avoiding impacts to water
deliveries to all of the Friant Division long-term contractors.
Paragraph 16 also requires the implementation of a Recovered Water
Account to make water available to Friant Division long-term
contractors at reduced prices during wet hydrologic conditions.
At the public hearing on May 3, 2007, I provided the Subcommittee
with a report entitled, ``San Joaquin River Restoration Program, Water
Management Goal, Potential Programs and Projects'' that was prepared by
members of the Friant Water Users Authority. Implementation of programs
and projects of the nature outlined in the Friant report can
substantially mitigate the impacts of providing Interim Flows and
Restoration Flows required by the Settlement.
It is the Friant position that the Water Management Goal is equal
and parallel to the Restoration Goal of the Settlement and that it will
require significant attention and effort as the Settlement is
implemented. Unfortunately, not all of the potential measures to
implement the Water Management Goal have been identified, which is why
the Secretary is directed to develop the plan. The plan must provide
the detail to provide certainty that the Water Management Goal is fully
implemented.
Question 1b. Will the Water Management Plan address the concerns
being raised by Mr. Ishida in his testimony (Tulare County)?
Answer. If the Water Management Goal is fully implemented, most of
the concerns expressed by Mr. Ishida at the hearing will be addressed.
As I noted in response to a question during the hearing, some of the
groundwater quality issues raised by Mr. Ishida are unrelated to
whether the Settlement is implemented or not.
Question 1c. Given the limited amount of storage in the basin, how
will surplus water be made available to your water users pursuant to
the ``Recovered Water Account'' called for in the settlement?
Answer. There are two critical components to effective utilization
of the Recovered Water Account. First, existing capacity limitation in
the Friant-Kern and Madera Canals must be addressed to create or
restore conveyance capacity to transport significant volumes of water
during wet hydrologic conditions. Second, existing groundwater recharge
and banking capacity must be expanded so that Friant long-term
contractors have sufficient storage capacity to take advantage of such
water. Many of the programs and projects identified in the report
prepared by Friant and referenced above are designed to do precisely
that.
While additional surface storage is not part of the Settlement, the
members of the Friant Water Users believe additional storage is a
critical component of long-term water security for the San Joaquin
Valley.
Question 2. 3406(c)(1) of the CVPIA, established the Friant
surcharge and states that the contractors are required to pay the
surcharge ``until such time as flows of sufficient quantity, quality,
and timing are provided . . . to meet the anadromous fishery needs . .
.''.
Do the restoration flows called for in the settlement constitute
``flows of sufficient quantity, quality, and timing''. If so, absent
the extension of payments in S. 27, would the Friant surcharge continue
to be paid until 2014 when the restoration flows are implemented?
Answer. The flows called for in the Settlement are specifically
designed to be ``flows of sufficient quantity, quality, and timing'' to
restore a salmon fishery to the San Joaquin River. They are based upon
hydrographs (included in the Settlement as ``Exhibit B'') prepared by
plaintiffs' expert fishery biologists. The Settlement also provides for
``buffer flows'' and timing flexibility to assure that the flows can be
optimized for fishery purposes.
If ``flows of sufficient quantity, quality, and timing'' were
released pursuant to CVPIA section 3406(c)(1), the Friant surcharge
would be eliminated. As a part of negotiating the Settlement, the
Friant contractors agreed to continue making the surcharge payment even
though an argument could be made that the surcharge payments should be
eliminated. The Settlement requires Friant to continue the payments. S.
27 requires the Secretary to continue to collect the surcharge and
dedicate the proceeds to implementation of the Settlement.
Responses of Daniel M. Dooley to Questions From Senator Smith
Question 1. S. 27 includes a provision directing NOAA Fisheries to
designate the reintroduced salmon on the San Joaquin River as an
nonessential, experimental population under section 10(j) of the
Endangered Species Act. I understand this designation would exempt that
population from the prohibition on ``take'' in section 9 of the ESA.
Including this provision in S. 27 implies that section 10(j) can be
utilized to designate a population as nonessential, experimental, even
when that population will later intermingle with non-designated
populations in its lifecycle. And that it can be implemented before the
reintroduction of a threatened species.
Is this your understanding of the provision in S. 27?
Answer. Section 10 of S. 27 was written in consultation with NOAA
Fisheries and is intended to memorialize how the agency indicated it
would undertake the reintroduction. It provides for the reintroduction
of California Central Valley Spring Run Chinook salmon provided the
Secretary of Commerce finds that a permit to do so may be issued
pursuant to section 10(a)(1)(A) of the ESA. Assuming the Secretary
finds that such a permit can be issued, the Secretary shall issue a
final rule pursuant to section 4(d) of the ESA governing the incidental
take of such reintroduced California Central Valley Spring Run Chinook
salmon. Section 10 of S. 27 provides that such rule shall not impose
more than de minimis water supply impacts on third parties as that term
is defined.
Neither I nor the Friant Water Users are in a position to judge
whether the use of Section 10(j) as provided in the ESA in this
instance creates any implications as to other applications.
Question 2. If Congress were to enact this bill, don't you agree
that it should promote the use of the 10(j) provision as an essential
tool to accelerate the reintroduction and recovery of threatened
anadromous fish like salmon and steelhead?
Answer. Section 10(f) of S. 27 specifically provides that Section
10 is not intended to modify the ESA or set a precedent with respect to
any other application of the ESA. While noting Section 10(f) of the
legislation, it is important to note that Section 10(j) of the ESA
provides a statutory mechanism that is intended to be used in some
circumstances. Its application in other cases should be determined by
the facts of those cases.
______
Responses of Allen R. Ishida to Questions From the Subcommittee
Question 1. Why doesn't the Water Management goal of the settlement
address your concerns? Answer
Answer. In every article I read addressing the San Joaquin River
Settlement and in the testimony that I have witnessed, no one has
addressed the cost of mitigating the loss of surface water for the
residents in the Friant Service Area. It is also clear to me that no
one is sure that $500 million in federal funds will accomplish the
stream restoration and reintroduction of salmon exclusive of the costs
of mitigation projects. The cost to mitigate the surface water loss
could potentially be greater than the river and salmon restoration.
Question 2. Have mitigation options been sufficiently developed in
your area to mandate their inclusion in this legislation?
Answer. I believe that there are options sufficiently developed for
inclusion in this legislation. I have been assured by the Friant Water
Authority that they have many mitigation projects that could be
implemented in fact that list was entered into the subcommittee record
on May 3, 2007. To this date I have not received a copy of the Friant
Water Authority potential mitigation projects nor have they offered to
share the information with me.
In item 2 you made the statement as follows: Some of the water
quality concerns you raise in your testimony would seem to be ongoing
problems that are not directly related to the settlement. You are
correct that we have been addressing ongoing problems with water
quality in Eastern Tulare County. This settlement directly impacts
water quality issues for almost all of our 400,000 plus residents in
Tulare County. For example I am a citrus grower in a county that has
approximately 100,000 acres of mature citrus tree. The citrus industry
is highly dependent on Friant Water. Please refer to the crop maps that
I entered into the record on May 3, 2007. A 15% reduction in surface
water, just in the citrus industry, will result in pumping
approximately 42,000 acre feet from the underground water table every
year. If we experience prolonged drought conditions which we have in
the recent past, farmers will pump even greater amounts of groundwater
because the federal government will not be able to deliver contracted
amounts of Class 1 Water. Pumping underground water will accelerate and
diminish the water quality for our residents that depend on
groundwater. I assure you as a farmer, I will supplement my surface
water loss by pumping from the underground water table to keep my farm
economically viable. If in 2025 the salmon run is not re-established
and more surface water is taken, this settlement will put thousands of
farmers out of business and our rural communities will fail.
Question 3. What current actions are being undertaken by Tulare
County, local water providers, and the State of California to address
those water quality concerns?
Answer. The Tulare County Board of Supervisors re-instated our
county water commission to address issues such as groundwater recharge
and water quality. The water commission will serve in an advisory
commission for the board of supervisors. They will be charged to find
solutions for our immediate and long term water needs. This commission
will have a great influence on the future growth of our county. This
commission will consist of local water experts and concerned residents.
Tulare County Board of Supervisors is on record to support a new water
storage facility on the San Joaquin River.
The Governor of California is advocating a new surface water
storage facility on the San Joaquin River. A new surface storage
facility will greatly enhance mitigation efforts resulting from the San
Joaquin River Settlement, but a new water storage alone will not solve
all of our water quality and quantity problems. That is why we have re-
activated our county water commission. The voters of California voted
in 2006 to bond money for water studies and flood control.
______
Responses of P. Joseph Grindstaff to Questions From Senator Bingaman
Question 1. From the testimony, it's clear that a number of water
quality issues currently exist in Tulare County notwithstanding this
settlement. What is the State currently doing to help address the water
quality issues in Tulare County? Will Tulare County be a focus in the
Water Management Plan called for in the settlement?
Answer. The State has been and continues to be very active in
funding water quality improvement projects in Tulare County. In recent
years, the State has provided over $1.4 million to the Upper Kings
River Water Forum, in which the counties of Fresno, Kings and Tulare,
water agencies, and cities are partnering to develop an Integrated
Regional Water Management Plan (IRWMP). The purpose of the IRWMP is to
define projects and programs to manage and develop both surface and
groundwater supplies for long-term sustainability. Improved water
quality is a major focus of the plan.
Additionally, another $1.4 million in Proposition 13 and Local
Groundwater Assistance grants has been awarded to agencies within
Tulare County to fund groundwater data collection, recharge and well
monitoring.
Tulare County is hydrologically separate from the San Joaquin River
Basin, therefore, water quality issues in Tulare County will not be a
focus in the Water Management Plan. However, a number of possible water
management actions involve Tulare County, such as the Trans-Valley
Canal and other interties, as well as water transfers and groundwater
banking both in and adjacent to Tulare County. None of the actions
proposed in the Water Management Plan will negatively impact water
quality in Tulare County. Conversely, if proposed actions can provide
water quality benefits to Tulare County, those actions would be given a
higher priority for implementation than others.
Question 2. What will be the State's priority for expending funds
given the extent of channel restoration; levee reinforcement; & water
management and mitigation efforts needed as part of the settlement?
Answer. The State intends to spend funds on restoration actions
identified and prioritized in the Settlement Agreement. Each of these
actions is being evaluated from the State's perspective to make sure
that State priorities are taken into consideration. The criteria being
used to evaluate each action include answers to the following
questions:
<bullet> How well will implementation of this action help the State
meet our flood protection goals?
<bullet> How closely does this action follow the 2005 State Water
Plan?
<bullet> How will implementation of this action benefit the people of
California?
<bullet> How will implementation of this action improve water quality
in the Delta and facilitate continued operations of the pumps?
<bullet> How will implementation of this action protect, restore, and
enhance the natural and human environments?
Additional considerations for prioritizing implementation of
actions include the leveraging of funds and the timing of funding
availability. State funds are currently being leveraged through
coordination with other programs and agencies. One illustration of such
coordination is that the USBR has funds to provide aerial mapping and
DWR has funds to establish ground control. Through this joint effort,
one foot topographic maps are currently being finalized for Reach 1 of
the San Joaquin River, below Friant Dam. This map will be used by both
the Restoration Program and the Division of Flood Management. The
timeline for when funds are available and also for when they might
expire is also taken into consideration when prioritizing actions.
Question 3. How does San Joaquin Restoration fit into the overall
``Delta Vision'' process, if at all?
Answer. Any actions on the San Joaquin River that improve the
quality of water entering the Delta are consistent with the objectives
of the Delta Vision process. The foremost of these actions is the
addition of flows for restoration purposes. The volume and the quality
of water that will reach the Delta via restoration flows have the
potential to improve water quality in the Delta itself. Additionally,
the restoration of tributary habitat for anadramous fish proposed by
the Settlement will contribute to an overall healthier Delta ecosystem.
______
Mason, Robbins, Browning & Godwin,
Merced, CA, May 21, 2007.
Hon. Jeff Bingaman,
U.S. Senate Committee on Energy & Natural Resources, Dirksen Office
Building, Washington, DC.
Re: Question arising from the Senate hearing on S. 27 dated May 3, 2007
Dear Senator Bingaman: Thank you for your kind letter of May 7,
2007. The San Joaquin Tributary Agencies generally, and the Merced
Irrigation District specifically, appreciates the opportunity to appear
before the Water and Power Subcommittee of the Energy and Natural
Resources Committee.
As a result of that hearing you posed the following question:
How might your operations be further affected by the
reintroduction of Spring Run Chinook were it not for the
protections provided by Section 10 of the bill?
Merced Irrigation District operates its Exchequer Project on the
Merced River for water supply, power generation, flood control and
recreation. In addition, the River is managed for the beneficial use of
fisheries in the Merced River which include Fall Run Chinook Salmon
amongst others.
Fall Run Salmon have a different life history than Spring Run.
Fall. Run Chinook leave the ocean and migrate into the fresh water
spawning grounds in the fall primarily from late October until late
December. They are therefore in the river system when natural side
flows from small tributaries as well as winter flood control releases
are present. It is not normally necessary to make releases from storage
to provide suitable habitat for Fall Run Salmon. except in the driest
years. Also, the temperature of the water is usually satisfactory for
spawning and rearing purposes. The salmon generally out-migrate from
the system to the ocean the following spring having spent only the
winter in fresh water. The spring flows when combined with regulated
flows are generally sufficient for the species well being. There are
those, of course; who will disagree on flow requirements but those
disagreements are generally within limited range.
Spring Run Chinook move into the system as adults in the spring
during high spring flows. Historically they would move high into the
mountains to spawn and not remain in low foothill and valley floor
areas as their life cycle includes summering over in fresh water and
then spawning in late summer or early fall. Spring Run can then either
migrate out in the spring or spend another entire year in the system
migrating out the following spring. Although this behavior can happen
with the Fall Run, it is much more prevalent with Spring Run. The net
effect is that as Spring Run Salmon approach dams that block access to
the higher elevations they begin to spawn in the lower elevations.
Water temperatures during the summer may be to high for their survival
at low elevations though most dams provide cold enough water for
survival, nevertheless, successful spawning is very problematic without
additional cold water flows in the summer for fishery protection.
As a result, a threatened species such as Spring Run could have the
eventual requirement of significantly greater volumes of water that
would otherwise be placed to other beneficial uses. In addition
management activities on the river would be subjected to added
oversight because of the presence of the species. With both species
Salmon will be present all year not just winter and spring. Water could
be required at different times of the year than is currently present
shifting the time for generation of electricity and therefore
potentially impacting the value of the power. Water levels in the
reservoir could be impacted reducing recreational opportunities.
Finally, Spring Run and Fall Run will be spawning on the same grounds
below large dams on the San Joaquin and its tributaries.
With respect, to relicensing the project before the Federal Energy
Regulatory Commission (FERC), the presence of Spring Run Salmon would
authorize the Department of Commerce through the National Marine
Fishery Service to impose mandatory conditions for fishery protections
on the District licenses regardless of its water supply or economic
impacts. Since Merced Irrigation District relicensing will occur in
2014 these impacts could be imposed long before other agencies on the
San Joaquin would need to deal with Spring Run Salmon based upon the
10(j) designation of the species.
With the reintroduction of Spring Run under Section 10(j) of the
Endangered Species Act and the FERC protections provided under the
Federal Power Act included in Section 10 of the bill, Merced Irrigation
District, and eventually all other FERC license holders on the San
Joaquin River, wilt eventually have to deal with the issue of Spring
Run Salmon but not until we know if the experiment is successful and
then only in 2025 as all other agencies subjected to this regulatory
activity as well.
I hope this adequately answers your inquiry. I am of course
available for further questions as they might arise.
Very truly yours,
Kenneth M. Robbins.
______
Natural Resources Defense Council,
San Francisco, CA, May 22, 2007.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Re: S. 27--San Joaquin River Restoration Settlement Act
Dear Chairman Bingaman: Thank you for your letter of May 7, 2007
requesting our answers to the Committee's additional questions to
witnesses from the May 3, 2007 hearing of the Subcommittee on Water and
Power regarding S. 27, the San Joaquin River Restoration Settlement
Act. Attached please find the responses of the Natural Resources
Defense Council (NRDC) to the additional questions submitted to us with
your letter.
In addition, we appreciate the Subcommittee's offer to all
witnesses to supplement the record from the hearing and are attaching
some new materials re S. 27 that were not available at the time of the
hearing which we ask be included in the record of the hearing:*
---------------------------------------------------------------------------
* The attachments can be found in appendix II.
<bullet> Letters from Association of California Water Agencies to
Sen. Feinstein and the House Subcommittee on Water & Power (May
3, 2007) supporting S. 27/H.R. 24
<bullet> Letters from National Water Resources Association to Sen.
Feinstein and the House Natural Resources Committee (May 16,
2007) supporting S. 27/H.R. 24
<bullet> Letters from Contra Costa Water District Board of Directors
to Sen. Feinstein and Rep. Radanovich (May 22, 2007) supporting
S. 27/H.R. 24
<bullet> Press Release by Congresswoman Grace Napolitano (May 17,
2007)
<bullet> ``Water: San Joaquin River restoration plan could fall
apart, witnesses warn,'' Environment and Energy Daily (May 4,
2007)
Thank you for providing us this opportunity to provide additional
information to the Committee about S. 27.
Sincerely,
Hamilton Candee,
Co-Director, Western Water Project.
Questions From Senator Bingaman
Question 1. Hal Candee (NRDC)--The Administration's testimony
indicates that feasibility-level designs have not been done on the
actions needed to restore the salmon runs, particularly channel
restoration work such as that required in Reach 4B.
If additional funding is necessary to complete the actions called
for in the settlement and such funding is not provided (i.e. actions
cost more than direct spending available from the settlement bill &
appropriations are not forthcoming), has the U.S. breached the
settlement?
What is the remedy in the event of a breach?
Answer. The Settlement and the pending Legislation contemplate a
combination of State and Federal funding sources, including the use of
various payments by Friant Water Users to the Federal Government. Some
of those funding sources are already available to the Department of the
Interior through existing authorized appropriations and have been used
by Interior to initiate Settlement implementation actions since the
Settlement was approved by the Court on October 23, 2006. In
anticipation of this fact, the United States stated explicitly in the
Settlement:
Prior to the enactment of the legislation . . . the Secretary
may exercise any existing authority to initiate the planning
and design of the improvements specified under Paragraph 11,
subject to the availability of appropriations. Paragraph 23
(emphasis added).
The United States also agreed as follows:
The Secretary shall promptly commence activities pursuant to
applicable law and provisions of this Settlement to implement
the provisions listed in Paragraph 11, provided that funds are
appropriated by Congress or available from non-federal sources
for that purpose. Paragraph 9 (emphasis added).
In undertaking the implementation of these improvements, the
Secretary may enter into such appropriate agreements, memoranda
of understanding . . . cost-sharing agreements, or other
relationships . . . as may promote the timely and cost-
effective completion of the improvements. Paragraph 10
(emphasis added).
On the same day as the United States approved the Settlement and
filed it with the Court, i.e. September 13, 2006, it also executed an
MOU with the State of California (and the other Settling Parties),
which provides inter alias:
The State has expressed strong support for this Settlement
and has pledged cooperation and the financial resources of the
State to help it proceed. (Part A--Preface)
* * *
DWR and DFG each intend to assist the Settling Parties in
identifying State funding sources which may be available to
implement the Restoration Goal and the Water Management Goal of
the Settlement . . . (Part C. 4c.)
* * *
An initiative known as [Proposition 84] . . . [provides] that
$100,000,000 shall be available to the California Resources
Secretary for the purpose of implementing a court settlement to
restore flows . . . to the San Joaquin River, and specifies
that the funds shall be available for channel and structural
improvements and related research pursuant to the court
settlement. (Part C. 4d; emphasis added).
Similarly, the Parties clarified in the Settlement that not all
actions in the Settlement require additional action by Congress:
The Parties acknowledge that certain actions to be undertaken
to implement this Settlement will require additional
authorization or appropriations by Congress, or both. Paragraph
8 (emphasis added).
Finally, the United States also made other relevant commitments
that were essential to the Parties reaching Settlement of the
litigation, including but not limited to:
The Secretary shall diligently pursue implementation of the
Restoration Goal and the Water Management Goal as set forth in
this Settlement. Paragraph 4
The dedication of funds as provided in Paragraph 21(a) shall
not preclude the Secretary from attempting to seek to secure
the appropriations of additional funds by Congress for the
implementation of this Settlement. The Secretary anticipates
seeking such appropriations through the appropriate
administrative process. . . . Paragraph 21(c).
In sum, although the issues of appropriations, conditions
precedent, force majeure, dispute resolution, and remedies for breach
of the agreement are extensively addressed in numerous sections, see
for example Paragraphs 23, 24, 25, 26, 27, 33, 35 and 36, and are too
extensive and voluminous to summarize here, they are to be read in the
context of the overarching provisions of the Settlement, and the
separate MOU with the State, concerning the mixture of new, existing
and non-federal funding sources to understand the vision of a joint
federal-state restoration effort.
Question 2. Hal Candee NRDC--The Subcommittee received testimony
for the record from Kole Upton, Chairman of the Friant Water Users
Authority. His statement indicated that the Friant Water Users wanted
to include new surface water storage as part of the settlement but that
the environmental coalition rejected this option.
Does NRDC oppose new storage as a potential measure to mitigate the
water supply impacts?
Given the change in water allocation and the need for mitigation,
not to mention the impacts that climate change is having on water
supply, should all options at least be considered and analyzed?
Answer. The settlement negotiations were the subject of a Court
Order requiring confidentiality, so I am not at liberty to describe
them but I will say that Mr. Upton's characterization is misleading.
NRDC does not oppose economical and environmentally benign new water
storage facilities. In fact, we have devoted considerable effort and
resources to supporting public funding of new ground water storage and
other new water management measures to benefit Friant water users and
other California water districts, even before the Settlement was
achieved, including our support for various state propositions totaling
billions of dollars that have helped to fund San Joaquin Valley farmers
and water districts seeking to expand their own storage capabilities
and obtain other water supply benefits. However, the idea that a
settlement of an 18 year old lawsuit focused on the federal
government's abuses of California's environment in its operation of an
on-stream surface storage facility should include building yet another
environmentally harmful on-stream surface storage facility is absurd on
its face and was never seriously considered by the Settling Parties. As
for mitigating water supply impacts of the Settlement, I would note
that I am unaware of any equivalent mitigation provided by the Friant
water users or the Bureau of Reclamation over the last 60 years to
address the egregious third party impacts caused to Delta farmers,
Delta communities, North Coast fishing communities, and numerous other
critical interests caused by the illegal operation of the Friant Unit
of the CVP and its resulting degradation of California's second longest
river. Perhaps that is the mitigation element that is missing from this
legislation. As for mitigating the impacts to those who have benefited
over the past 60 years from operation of the Friant Unit, such
mitigation has already been addressed: the Settlement and the pending
legislation contain numerous measures intended to reduce, avoid or
mitigate water supply impacts, and the Friant farmers and their
districts and the federal and state agencies have all approved those
mitigation provisions. In addition, the Friant water users have
indicated that they intend to devote their own resources, and seek
additional public resources, to pursue other water management measures
to meet their water supply needs, as they have always done and would
presumably continue to do whether or not there is a settlement.
Questions From Senator Smith
Question. S. 27 includes a provision directing NOAA Fisheries to
designate the reintroduced salmon on the San Joaquin River as an
nonessential, experimental population under section 10(j) of the
Endangered Species Act. I understand this designation would exempt that
population from the prohibition on ``take'' in section 9 of the ESA.
Including this provision in S. 27 implies that section 10(j) can be
utilized to designate a population as nonessential, experimental, even
when that population will later intermingle with non-designated
populations in its lifecycle. And that it can be implemented before the
reintroduction of a threatened species.
1. Is this your understanding of the provision in S. 27?
2. If Congress were to enact this bill, don't you agree that it
should promote the use of the 10(j) provision as an essential tool to
accelerate the reintroduction and recovery of threatened anadromous
fish like salmon and steelhead?
Answer. 1. No, that is not my understanding of the provision.
Section 10 of S. 27 sets out a provision, similar to the normal
application of section 10(j) of the ESA for designating experimental
populations and the handling of take limitations for such experimental
populations. Due to the carefully negotiated terms of section 10 of S.
27, I believe it would be unwise and unhelpful for me to try to
paraphrase its terms. However, I would note that the US Department of
the Interior did provide the Settling Parties with an informal
``section by section analysis'' of S. 27, which includes a description
of Section 10 and which we understand has been submitted to the
Committee and may be helpful in this regard.
2. Whether Congress should use or promote any particular tool to
accelerate reintroduction or recovery of threatened anadromous fish
ultimately depends on the unique factual situations around the country.
In general, we believe Congress should be promoting more aggressive
water conservation, sensible market pricing of federal water supplies,
sensible market pricing of the power derived from federal water
projects, and vigorous implementation of existing provisions of the
ESA, NEPA, the Clean Water Act, applicable state laws, and other
environmental protections if Congress is to be serious about helping
our beleaguered anadromous fish species. As for Section 10 of S. 27, it
states explicitly that the situation on the San Joaquin River ``is a
unique and unprecedented circumstance'' and that ``Nothing in this
section is intended or shall be construed . . . (2) to establish a
precedent with respect to any other application of the [ESA] or the
Federal Power Act (16 U.S.C. 791a et seq.).'' That language was
essential to reaching agreement on S. 27 and without it there would not
have been consensus support for the legislation. Accordingly, if the
intent of the question is whether Section 10 of S. 27 should be used as
``a precedent with respect to any other application of the Endangered
Species Act,'' clearly that would be directly contrary to the intent
and language of S. 27 and we would have to oppose such an approach.
______
San Joaquin River Water Authority,
Los Banos, CA, May 29, 2007.
Hon. Jeffrey Bingaman,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Re: S. 27
Dear Senator Bingaman: I am writing in response to your questions
relating to the above-referenced hearing and legislation. I am
responding to you in my capacity as the Executive Director of the San
Joaquin River Exchange Contractors Water Authority, a joint powers
agency comprised of four California water agencies (hereafter
``Exchange Contractors'').
I have paraphrased each of your questions and respond as set forth
below.
Question 1. Are the Exchange Contractors confident that the $900
million in state and federal funding is sufficient to implement the
settlement in a manner that protects the interest of the Exchange
Contractors?
Answer. The Exchange Contractors participated actively in the
efforts to negotiate the subject legislation. Our support for the
legislation to restore salmon to the upper San Joaquin River was
contingent upon the restoration program not having an adverse impact on
the Exchange Contractors' member agencies, their water supply customers
or landowners adjacent to the San Joaquin River. These farmers, whose
properties abut the San Joaquin River, would be severely impacted if
the restoration program is not conducted in a manner that mitigates, up
front, the impacts that will occur once water flow is restored to the
San Joaquin River and endangered species are present.
As I testified previously, our greatest fear is that only a portion
of the project would be built, similar to the failed efforts by the
Bureau of Reclamation to construct drainage facilities in the San
Joaquin Basin. Therefore, we insisted the legislation include a
provision requiring that any portion of the existing levee system and
any future levees to be constructed be implemented on a project by
project basis. (See Section 9(a)(2)) This provision will require
Reclamation to analyze how the program will be implemented, identify
each key phase and implement each project in such a manner that it can
be pursued to completion before proceeding to the next phase. For
example, if the upper most reach of the San Joaquin River below Friant
Dam, referred to as Reach 1, is to be restored, then the restoration
should be done pursuant to an implementation plan that addresses all
issues in that reach of the River before allowing water for fisheries
to be restored to lower reaches.
We expect, from a practical perspective, that Reclamation will
develop Reaches 1, 2 and 3 essentially at the same time. However,
before doing so, it will be essential that they determine all of the
steps necessary to create habitats sufficient to protect the various
life stages of the reintroduced spring run salmon and to protect the
adjacent landowners from any flooding or water seepage that may occur
once the restoration flows are released. It will also be essential that
downstream bypasses are utilized to divert water out of those portions
of the stream that have not been protected. In addition, until channel
improvements and all mitigation measures are completed in each
particular reach, the flows must be limited to existing capacity of the
river channel.
The legislation also requires that Reach 4B be treated separately
from the other portions of the River. (See Section 9(g)) Reach 4B is
particularly challenging because its current channel capacity is
between 20 and 50 cfs, and yet the restoration program would require
flows as high as 4,500 cfs. Reach 4B will be studied and funded
separately from the rest of the project if there are not sufficient
funds remaining to address the needs in that Reach. Further, Reach 4B
is likely the most expensive portion of the project. In the Reach 4B
area, significant amounts of acreage will have to be taken out of
production and acquired either from willing sellers or through eminent
domain. (See Section 5(b)) In addition, levees and slurry walls will be
necessary in order to prevent the adjacent farmland from being either
flooded on the surface or causing the groundwater basin to rise to a
level such that the root zone is flooded, thereby making it impossible
to productively farm the area.
Question 2. Do the Exchange Contractors believe that the settlement
requires that levee protections be incorporated with channel
restoration works? If so, how might this affect the cost estimates that
currently exist for the settlement?
Answer. Levees are an essential part of the restoration program. In
fact, levees are the main cost component of the restoration effort.
While the in-stream measures to create habitats are costly, their cost
is dwarfed by the mitigation measures that will be needed to protect
adjacent landowners and water users from the impacts of the restoration
program. As I stated in my testimony:
To make this restoration possible, substantial physical
changes need to be made both to the River and to facilities
downstream of the dam. It will be essential to protect the
downstream water systems and the adjacent private property and
livelihoods of the farmers and other citizens along the River.
Among the changes to the River that will be needed are in-
stream improvement measures, rehabilitation of miles of
existing levees to protect flooding and seepage, the
construction of new levees where none exist, reconstruction of
water diversion facilities and small dams that were not
constructed in a manner consistent with the new operating
regimen that will be required under the settlement,
improvements to some of the downstream flood by-pass
structures, and construction of fish screens.
All of the parties understood that the aforementioned work was
integral to the restoration program.
The Exchange Contractors relied on engineering work by the firm of
CH2MHill in preparing their cost estimates. CH2MHill had recent
experience on the Sacramento River constructing levees. We know that
levee construction costs and levee rehabilitation vary by site. We have
assumed that there are no special conditions existing along the San
Joaquin River that would drive levee restoration and levee construction
costs higher than those anticipated. Therefore, based upon what we know
today, we believe that the identified state and federal funding of $900
million is an appropriate estimate for the various reaches of the San
Joaquin River, with the exception of Reach 4B.
If you have any further questions, I would be pleased to respond.
Very truly yours,
Steve Chedester,
Executive Director.
Appendix II
Additional Material Submitted for the Record
----------
Plainview Mutual Water Company,
Strathmore, CA, February 16, 2007.
Supervisor Allen Ishida,
Chairman, Tulare County Board of Supervisors, 2800 West Burrel,
Visalia, CA.
Dear Supervisor Ishida: Plainview is a very poor community with
residents depending primarily on farm labor to support their families.
On behalf of the Board of Directors of the Plainview Mutual Water
Company, I wish to express my concern regarding the imminent loss of
water from the Friant Kern canal to our area. Our community water
system serves about 200 families with drinking water. One of our two
water wells has already been shut down due to high nitrate and DBCP
levels. We are totally dependent on our remaining 50 year old well
which currently meets drinking water standards. As you know we are in
the process of designing a new well with funding approved by USDA Rural
Development.
Though we are not against the settlement, our concern is that the
effects of the settlement between the US Bureau of Reclamation and the
National Environmental Defense Council will reduce the supply of
surface water in our area via the Friant-Kern canal. This will likely
result in the area's farmers pumping more groundwater which will
further lower our water table. This will result in increased pumping
costs and may increase the concentration of contaminants in our
existing and new water wells.
Attached are graphs from the State Department of Water Resources
indicating the level of water in three wells in our area that have been
monitored since the early 1960's.* As you can see, the ground water
level has improved considerably since Friant water was imported into
our area by the Lindmore Irrigation District. We are very concerned
that this level will continue to drop as a result of the loss of water
to our area.
---------------------------------------------------------------------------
* The attachments have been retained in subcommittee files.
---------------------------------------------------------------------------
We ask that you take steps to help us and other communities protect
our water resources and our community's future. Thank you for your
assistance.
Sincerely,
Francisco Martinez,
President.
______
Community Water Center,
California Rural Legal Assistance Foundation,
Visalia, CA, February 19, 2007.
Senator Barbara Boxer,
Hart Senate Office Building, Washington, DC.
Re: Mitigation to address water loss as a result of the San Joaquin
River Settlement
Dear Senator Boxer: The Community Water Center is a non-profit
organization based in Visalia, California, that works to ensure that
all communities can have access to safe, clean and affordable drinking
water. The Community Water Center and the California Rural Legal
Assistance Foundation write to you today on behalf of our many client
communities to ask for inclusion of a mitigation program to address the
impacts that the San Joaquin River Settlement will have on communities
in the Southern San Joaquin Valley.
As you may already know, there are hundreds of thousands of
residents in the San Joaquin Valley that do not have access to safe
thinking water in their homes. Most of these Californian's are low-
income people of color and live in small, unincorporated areas of the
valley and have either contaminated private wells or are served by a
small public water system whose wells cannot meet safe drinking water
contaminant limits.
In addition, there are many more communities that live on the verge
of loosing safe drinking water. In Tulare County alone, 30% of the
public water systems are just below maximum contaminant levels and rely
on a few groundwater wells to provide all of their drinking water.
Should groundwater contamination levels rise even slightly, many more
communities will be unable to provide safe drinking water to their
residents. This is true for Tulare County, but also for the other
counties of the Southern San Joaquin Valley.
The San Joaquin River Settlement will result in very real, direct
and indirect impacts on many of our states most disadvantaged
communities. While we support the settlement and the restoration of the
San Joaquin River, we urge Congress to include a ``third-party''
mitigation program to address its impacts on those of us not at the
negotiating table, and unable to fund mitigation on our own.
Specifically the Settlement will result in a reduction of clean
surface water deliveries to the Southern San Joaquin Valley through the
giant Canal system, as water is diverted back to the San Joaquin River.
This reduction will affect communities in the following three primary
ways:
1. Less fresh water will be put into our groundwater aquifers
to dilute contaminated groundwater supplies causing
contamination levels to increase. Last month the Hydrogeology
Journal published a study on the nitrate contamination in
groundwater in the eastern San Joaquin Valley, which found that
``surface water supplied for irrigation has low nitrate
concentrations and using this water would result in lower
concentrations in recharge than groundwater-derived irrigation
water. . . . (R)ecycling of groundwater through groundwater
pumping and reapplication of irrigation water was likely a
dominant process in the study area . . . (and) is likely to
result in increasing concentrations of nitrate even without
increasing fertilizer applications.'' \1\ Even small increases
will push many communities over legal limits of common
contaminants, such as nitrates, meaning millions of dollars in
new infrastructure costs and health impacts and emergency
bottled water costs for many of California's poorest families.
---------------------------------------------------------------------------
\1\ ``Temporal trends in concentrations of DBCP and nitrate in
groundwater in the eastern San Joaquin Valley, CA, USA'', Hydrogeology
Journal, January 2007.
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2. With less water coming into our aquifers, agricultural
operations, our growing cities, and industrial water uses will
turn towards increased groundwater pumping, drastically
increasing the overdraft that already affects our region.
Overdraft will mean that many private wells will go dry and
many of our poorest families may suddenly have no water at all.
Additionally, small communities will have to drill deeper
wells, which not only will cost far beyond the means of these
systems, but may result in having to use supplies with natural
contaminants that occur at deeper levels, such as arsenic,
manganese and sulfur.
3. Communities, such as Tonyville, Strathmore, Orange Cove,
Terra Bella and Lindsay, rely on treated canal water for their
primary drinking water supplies; reduced surface water supplies
will likely cause these systems to use contaminated
groundwater, which often has levels of nitrates far above legal
limits. Furthermore, given that the current contract
allocations of surface water are not meeting the existing
drinking water needs of all the communities within the place of
use, the settlement does not address the exacerbated need for
surface water of these groundwater dependent communities whose
groundwater will be further harmed through the settlement.
While California has passed bond measures that are helping small
drinking water systems with contaminants already over legal limits,
these bonds will do nothing to mitigate the impact this Settlement will
have on small, disadvantaged communities in the San Joaquin Valley. For
that we are asking Congress to create a series of mitigation programs
that will address these very real, both direct and indirect impacts
that this Settlement will have.
The following are programs that should be included in a mitigation
program:
1. Groundwater Quality Improvement Program for the Southern
San Joaquin Valley. This program should fund groundwater
improvement programs to mitigate the reduction in clean surface
water into our aquifers. The primary projects under this
program would include, but not be limited to, infrastructure
for local and regional wastewater and drinking water treatment
systems. Priority funding should be for disadvantaged, low-
income communities to lessen the input of common groundwater
contaminants, such as nitrates and salts. Complementary to the
infrastructure investments are the pollution prevention
investments including regulatory and educational programs to
require and promote best management practices for irrigated
agriculture, food processors, and dairies, all of which
contribute to our most problematic drinking water contaminant
(nitrate) in our region's aquifers. Currently there is
estimated to be over $4.4 billion needed for wastewater and
drinking water infrastructure projects in the San Joaquin
Valley.\2\
---------------------------------------------------------------------------
\2\ This number is based on estimates for water projects eligible
under the California Partnership for the San Joaquin Valley's Water
Recommendations.
---------------------------------------------------------------------------
2. Groundwater Overdraft Mitigation Program for the Southern
San Joaquin Valley. This program would fund projects that
reduce groundwater pumping in the region's over-drafted
groundwater aquifers. It should fund recycled water or dual
plumbing programs that enable less water to be used overall by
utilizing highly treated wastewater for irrigation and similar
applications. It should also fund water use efficiency
programs, both urban, rural and agricultural, and conjunctive
use or water banking programs that result in mitigating
overdraft. In addition, it should fund small systems and low-
income private well owners who have to drill further to access
clean water.
3. Community Water Access Program for the Southern San
Joaquin Valley. This program would fund feasibility studies and
implementation of regional projects that enable small,
disadvantaged communities to exchange groundwater for cleaner
surface water and build regional surface water treatment
plants. Ultimately to be sustainable, communities must have a
diverse source of water, including groundwater and surface
water supplies. Surface water is often owned by agricultural
interests and only a handful of small communities can access
those cleaner water supplies. Most communities cannot afford
the inflated cost of purchasing this water, or to construct the
necessary surface water treatment plants on their own. Through
this program and local, state and federal initiatives these
projects will finally provide sustainable solutions for local
communities that have been unable to access the surface water
that runs straight through canals bordering their homes, and
used for irrigation or sold to Southern California cities.
While we support the San Joaquin River Settlement, we urge any
implementation package to include these vital mitigation programs to
address the very real direct and indirect impacts on many of our
State's poorest communities.
Thank you for your consideration of our request. Should you have
any questions or concerns please feel free to contact Laurel Firestone
at (559) 733-0219 or Martha Guzman at (916) 446-7902. We look forward
to working with you to ensure that all Californian's can have access to
safe, clean and affordable drinking water.
Sincerely,
Laurel Firestone,
Co-Director & Attorney at
Law,
Community Water Center.
Martha Guzman,
Legislative Analyst,
California Rural Legal
Assistance.
______
Self-Help Enterprises,
Visalia, CA, February 26, 2007.
Supervisor Allen Ishida,
Chairman, Tulare County Board of Supervisors, 2800 West Burrel, Visalia
CA.
Re: Local Mitigation needed as a result of San Joaquin River Settlement
Dear Supervisor Ishida: Self-Help Enterprises (SHE) has over 42
years of experience in providing housing and community development
services in the San Joaquin Valley. SHE has assisted in the development
of over one hundred water and wastewater projects in disadvantaged
communities providing nearly 20,000 families with potable drinking
water and environmentally safe wastewater systems.
Basic access to an adequate supply of clean water is a priority
concern for all Californians, including residents of the small, low-
income, rural communities in Tulare County and the rest of the San
Joaquin Valley. There are already significant water supply and quality
issues in the Valley including Tulare County. These issues are
especially relevant to small communities and unincorporated areas where
small public water systems exist or where residents are dependent on
private domestic wells, many of which cannot meet safe drinking water
contaminant standards.
We recognize the value of the settlement between the US Bureau of
Reclamation and the National Environmental Defense Council and support
the settlement. At the same time, we are deeply concerned about the
adverse impacts the settlement will have on the local communities we
care about. The settlement will significantly reduce the supply of
surface water to Tulare County via the Friant-Kern canal. The likely
result will be increased pumping of more groundwater which will further
lower our water table. We are concerned that the net result will
exacerbate the water supply and quality conditions that already affect
economically disadvantaged communities.
There are many communities that already cannot provide safe
drinking water and many that are on the verge of loosing safe drinking
water. Should groundwater contamination levels rise even slightly due
to a reduction of the availability of fresh surface water, many more
communities will be unable to provide safe drinking water to their
residents. Now that the settlement is virtually a reality, we believe
it is necessary to move ahead and deal with these issues.
Attached are some graphs from the State Department of Water
Resources indicating the level of water in some wells in the Lindsay-
Strathmore areas.* As you can see, the ground water level has improved
considerably since Friant water was imported into eastern Tulare County
and made available in 1950. We are very concerned that this level will
drop significantly as a result of the settlement and that the water
future of our County and its disadvantaged communities will be in
jeopardy.
---------------------------------------------------------------------------
* The graphs have been retained in subcommittee files.
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Therefore, we ask that you take steps to help these communities. We
understand that a combination of resources including federal and state
will be needed to help mitigate these local impacts. We ask that you
contact the appropriate state and federal bodies to help our area which
has depended on and built its economy on this water for over a half a
century.
Sincerely,
Peter Carey,
President/CEO.
______
Association of California Water Agencies,
May 3, 2007.
Hon. Dianne Feinstein,
U.S. Senate, Washington, DC.
Hon. Nick Rahall,
U.S. House of Representatives, Washington, DC.
Hon. Grace Napolitano,
U.S. House of Representatives, Washington, DC.
Hon. Don Young,
U.S. House of Representatives, Washington, DC.
Hon. Cathy McMorris Rodgers,
U.S. House of Representatives, Washington, DC.
Re: S. 27 and H.R. 24--San Joaquin River Settlement Act
Dear Senator Feinstein and Representatives: The Association of
California Water Agencies, a statewide association of public agencies
whose 440 members are responsible for about 90 percent of the water
delivered in California, is pleased to write in support of S. 27 and
H.R. 24 the San Joaquin River Restoration Settlement Act. If passed,
this legislation will approve and fund the recent landmark settlement
on the San Joaquin River.
S. 27 and H.R. 24 authorizes the Secretary of the Interior to carry
out a comprehensive restoration program on the San Joaquin River.
Settlement parties have informed ACWA that the agreement addresses
third-party impacts and has the possibility to improve water quality
conditions in the Delta. During the implementation phase, ACWA looks
forward to working with Interior and other responsible entities to see
that the protections in the legislation are carried forward.
This settlement ends 18 years of difficult litigation and is
broadly supported by leaders throughout California, including Governor
Schwarzenegger, Senators Feinstein and Boxer and a bipartisan group of
the California congressional delegation. S. 27 and H.R. 24 are also
supported by the National Water Resources Association, the Friant Water
Users Authority, Natural Resources Defense Council, the Bureau of
Reclamation, the Department of Water Resources, and numerous other
federal, state, and local entities.
ACWA requests your leadership in moving this important legislation
forward to help restore a major tributary to the San Francisco Bay-
Delta Estuary.
Sincerely,
Stephen K. Hall,
Executive Director.
______
Contra Costa Water District,
Concord, CA, May 22, 2007.
Hon. Dianne Feinstein,
U.S. Senate, Hart Senate Office Building, Washington, DC.
Hon. George Radanovich,
U.S. House of Representatives, Rayburn House Office Building,
Washington, DC.
Subject: Support on S. 27 and H.R. 24--San Joaquin River Restoration
Settlement
Dear Senator Feinstein and Representative Radanovich: The Board of
Directors of the Contra Costa Water District (CCWD) has adopted a
position of Support on S. 27 and H.R. 24--San Joaquin River Restoration
Settlement. This bill authorizes the implementation of the San Joaquin
River Restoration Settlement. The purpose of the settlement is to fully
restore the San Joaquin River and to mitigate the impact of water
losses on those who have long-term contractual rights and obligations
to the Friant system within the Central Valley Project.
The settlement resolves years of litigation and represents a
landmark accord between environmental and fishing groups, Central
Valley farmers, and the state and federal governments to undertake one
of the most significant river restoration projects. CCWD has a long
history of concern over water quality in the San Joaquin River and its
impacts on the Delta. This legislation would give the Secretary of the
Interior the authority to take the actions to restore the San Joaquin
River which may ultimately lead to improved water quality in the Delta.
The District commends your leadership on this issue and appreciates
your hard work and dedication to your constituents.
Sincerely,
Joseph L. Campbell,
President.
______
Many in Tulare Co. Can't Count on Clean Water
By Mark Grossi / The Fresno Bee
EAST OROSI--The peaks of Sequoia National Park offer a breathtaking
backdrop for this farmworker town, but resident Maria Elena Orozco
would gladly trade the view for the pristine snowmelt from those
mountains.
She and the other 400-plus residents of East Orosi periodically get
notices reminding them not to drink the water from their taps.
The town's two wells have dangerous levels of a banned pesticide
and nitrates, which come from fertilizers, septic tanks and sewage
plants. Many residents worry about the health of their families.
``A lot of kids are having problems,'' said Orozco, 45, who has
three daughters. ``They're hyperactive and sick.''
The problem is common for residents in eastern Tulare County at the
foot of the Sierra Nevada.
Cutler, next door to East Orosi, is under a state order to clean up
nitrates in the town's drinking water.
There have been contamination problems with wells in Woodlake,
Lemon Cove, Tooleville, Woodville and Yettem. Other towns, such as
Strathmore and Lindsay, have a history of ground-water contamination,
though they have alternative water sources now.
``The east side of Tulare County has had historical high nitrate
and [pesticide levels] due to the citrus industry's pesticide and
fertilizer practices in the past,'' said Richard Haberman, supervising
sanitary engineer for the state Department of Health Services.
It is time for elected officials to deal with ``a drinking water
crisis here,'' said Laurel Firestone, co-director of the Water
Community Center, a Visalia-based nonprofit group.
``The contamination has been confirmed,'' she said. ``It's not a
mystery. So far, we don't have the political will to do something about
it.''
The center has organized residents in Cutler, East Orosi, Ducor,
Tonyville and other communities.
They push to clean up the water, drill new wells or hook up to
other sources of water, such as river supplies.
A new well can cost more than $150,000, and the price tag on a new
water-treatment plant is in the millions. Small communities must rely
on government grants and low-cost loans, most experts said.
East Orosi is in line for federal money that has been dedicated to
cleaning up water across the country.
But the problem is not just affecting public water systems, such as
the one in East Orosi. Firestone cites a state study that last year
revealed about two of every five private wells tested in Tulare County
had nitrate contamination. About 180 private well owners volunteered
for the study.
Tulare County's contamination appears to be far more widespread
than in northern Central Valley counties where the State Water
Resources Control Board tested private wells, state officials said.
Yuba, El Dorado and Tehama counties had a combined total of 11
wells with high nitrate levels. Tulare County had 75.
The most effective solution has been simply to pipe in river water,
as Lindsay and Strathmore do, said consulting engineer Dennis Keller,
who works for many area water districts. He has been involved in Tulare
County ground-water issues for 36 years.
River water--also called surface water--must go through a treatment
process before it can be used in homes. The price tag for water
treatment in the Cutler-Orosi area would be about $16 million, Keller
said.
``Over time, we've seen [public water] systems beginning to change
over from ground water to surface water,'' he said. ``We're studying
the feasibility of building a treatment plant for Cutler, Orosi and the
surrounding area.''
Water center co-directors Firestone and Susana De Anda are working
with Cutler-Orosi area residents to lobby for improvements.
Bertha Diaz, 37, of East Orosi has become active in the campaign.
Diaz spends $57 a month for water service, she said, and an
additional $61.25 a month for bottled water so her four children can
have safe drinking water.
The freeze last month created more misery for her family, depriving
Diaz of work in the citrus industry. She said she receives about $300
in state assistance, which does not cover her family's bills.
``It is a heavy burden,'' said Diaz, a single parent of a blind
child who has diabetes.
Other area residents said they are beginning to wonder whether
contaminated water is connected to unexplained stomach ailments among
children, cancer deaths and aborted pregnancies.
No medical studies have been conducted to show whether any of those
East Orosi-area health problems are related to water contamination.
But nitrates have been linked with cancer, pregnancy risks and a
blood disorder called methemoglobinemia, or ``blue-baby syndrome.''
Health experts said they have not received reports of blue-baby
syndrome in the area.
The banned farm pesticide DBCP, or dibromochloropropane, also is a
problem in east county wells.
The chemical, considered a cancer risk, can remain in ground water
for many decades after being applied.
Geology also makes the east-county towns more susceptible to
underground water problems, said Mark Bairstow, environmental health
specialist for Tulare County.
East-side wells are shallower than wells to the west. There is less
space for water in the soil between the ground surface and the bedrock
below the Valley.
``You're getting higher concentrations of nitrates because there is
less water,'' Bairstow said.
``As you move west, there's a larger volume of water.''
Activists also suspect dairies might be fouling wells with
nitrates.
Tulare County is the No. 1 dairy county in the nation, with more
than 800,000 animals--twice the number of people who live in the
county.
Authorities said nitrates can come from dairy waste, which soon
will be more strictly regulated by the Central Valley Regional Water
Quality Control Board.
But in East Orosi, authorities suspect the nitrate contamination
comes from surrounding orchards and possibly private septic systems.
No one knows for sure, but Elijio Adame, 71, said he is tired of
it.
``I've lived here since I was 13,'' he said. ``It wasn't like this
years ago. We need help now.''
______
Statement of Cannon Michael, Los Banos, CA
My name is Cannon Michael and I assist my uncle in operating our
family farm, Bowles Farming Company, Inc., located near Los Banos,
California. A good portion of the land we farm is adjacent to the San
Joaquin River along the stretch now known as Reach 4b. Having had an
opportunity for input into this legislation, I am writing you for two
purposes, first to testify in support of the legislation and second, to
share with you some concerns should the legislation not be implemented
in the way we hope it will.
I am a sixth generation Californian and my family has been involved
with agriculture since the mid 1800's. My great-great-great grandfather
came to America, like so many immigrants have, in search of the promise
of better life and freedom. He arrived in California as a young man
with little more than a dream of what could be.
The San Joaquin Valley was no land of dreams for those who settled
there in the 1800's. It has taken the united efforts of farmers,
communities, state and local agencies and the federal government to
make the valley the ``breadbasket of the world'' that it is today. The
key component in the transformation of the valley has been a reliable
supply of water. With the reliable water supply, and the protection
from flooding, the San Joaquin Valley has become the most diverse and
productive agricultural center in the world.
I come before you today to testify on behalf of the farmers and
citizens that will be affected by the proposed restoration of the San
Joaquin River. We are not just ``Third Parties'' to this Settlement; we
are families, community leaders, teachers, coaches, providers of food
and fiber for our great nation. The restoration of the San Joaquin
River has far reaching impacts for all the residents of the San Joaquin
Valley. It is imperative that the Third Parties have a voice in this
complicated, lengthy and costly process.
For those of us located in Reach 4b, having a voice in the
restoration process is of vital importance. The San Joaquin River holds
to a defined channel in its upper reaches, but historically it would
spread into many ``braided'' channels as it reached the flat valley
floor in our area. The flows called for in the Settlement are
exponentially greater than the existing capacity of Reach 4b and could
severely impact the families that live and farm along this stretch. S.
27: San Joaquin River Restoration Settlement Act, calls for the
restoration's impact on Reach 4b to be studied carefully and completely
prior to introducing any high level flows.
I understand that restoration of Reach 4B will cost in the range of
$400 million. Cost-benefit is one measure that will have to be
considered when studying the feasibility of using this reach of the
river. It is important that you understand the challenge of moving fish
through this reach. First of all, a sizeable amount of privately held
land will have to be acquired in order to create a stream channel of
sufficient width and depth to convey flow of at least 4500 cfs. The
valley floor here is very flat and the water table is high, so highly
engineered levees will be needed to protect the adjacent lands from
surface and sub-surface flooding. The new stream channel will also need
to be constructed in a fish friendly manner. Even after that, this
stretch of river has little elevation change, the slow moving water
will be warm--approaching 80 degrees during the summer, no matter how
much is released from Friant Dam. Reach 4b will, at best, be a hostile
environment for fish.
The San Joaquin River stretches for miles below the Friant Dam and
every reach has its own unique characteristics. The proposed
Restoration presents challenges for every mile of the San Joaquin and
there are many landowners who will be affected. We all need a reliable
water supply and our lands need to be protected from flooding. We are
mindful of the experience of water agencies and farmers in our area
regarding the federal government's failure to complete the San Luis
drain. We do not want to see a repeat of a half-finished project in
this restoration program. If our water supplier agencies are adversely
affected, we will be too. Therefore, it is essential that adequate
funds be appropriated and that the third parties have a place at the
table to make sure this program is implemented in a manner that doesn't
cause us harm.
In conclusion, this bill was crafted out of a collaborative effort
by the parties to the litigation, state and federal agencies and the
third party interests. This is the same type of collaborative effort
that will be needed if the restoration of the San Joaquin River can
ever truly be a success. Any changes to this bill could potentially
subvert the positive results that it represents. I respectfully ask
that you do not entertain any changes to this legislation.
______
Statement of Chris Acree, Executive Director, Revive the San Joaquin,
Fresno, CA
Thank you for the opportunity to comment on S. 27 regarding the
implementation of the Settlement Agreement. Revive the San Joaquin is a
non-profit stakeholder organization representing citizens, community
groups, and businesses that depend on the San Joaquin River as a vital
public resource. The restoration Settlement Agreement marks a major
shift in the management priorities for the river that will promote
stewardship and balanced management to ensure the vitality of one of
the State's most valuable natural resources. Support of this agreement
will recognize an emerging spirit of cooperation within a region
struggling to regain a healthy environment and build a vibrant economy.
Revive the San Joaquin is looking forward to the San Joaquin River
Restoration Program (SJRRP) and the Public Involvement Plan as a means
to begin open and constructive talks about how best to restore this
valuable public resource. It is only through this type of technical
coordination and public participation that we can begin to explore the
benefits of a revived river system, and get past the misconceptions
that keep our region divided and cut-off from our public resources. The
SJRRP will be the first attempt to manage an already productive water
supply system in a way that can realize mutual benefits for a wide
variety of users.
The San Joaquin Valley is in the midst of a crisis over water as we
inadvertently pollute and overdraft our groundwater aquifers and
destroy the last remaining remnants of our riparian ecosystems.
Returning water to the river channel will recharge aquifers more
efficiently than any off-site recharge basin, and simultaneously revive
river ecosystems. Without approval of the widely supported Settlement
Agreement, we will pass up a monumental opportunity to improve our
agricultural water supply, provide clean drinking water for
communities, expand recreational opportunities, and reinvigorate an
economy based on a lost and almost forgotten resource. Revive the San
Joaquin promises to be involved in the restoration of this resource and
contribute to the solutions that will build a stronger economy and a
healthier environment.
______
Statement of Clifford L. Marshall, Chairman, Hoopa Valley Tribe,
Hoopa, CA
For thousands of years the Hoopa Valley Tribe has resided on the
Trinity River. The Trinity River is the focal point of our culture,
religion and economy. In its natural course the river rises in the
Trinity Alps, flows through the heart of our reservation in Humboldt
County to its confluence with the Klamath River and then to the Pacific
Ocean. With the Bureau of Reclamation's completion of the Trinity River
division of the Central Valley Project (CVP) in 1963, the Trinity River
has effectively become an artificial tributary of the Sacramento/San
Joaquin watershed and the only source of imported water to the Central
Valley. The construction and operation of the Trinity River division
diverted up to 90 percent of the annual flow of the Trinity River
through a tunnel into the Central Valley for use as far south as the
San Joaquin Valley. For 45 years, that diversion has brought
astonishing wealth to water and power beneficiaries in the Central
Valley. It has also provided significant benefits to California and the
Nation.
The price of that wealth was severe reductions in Trinity River
fish populations and economic and cultural devastation to the Hupa
people and the north coast communities who rely on the Trinity River.
The seriousness of this situation is evidenced by the Secretary of
Commerce's July 2006, declaration of a Fishery Resources Disaster for
California's north coast and southern Oregon fishery under section
308(b) of the Interjurisdictional Fisheries Act of 1986 that includes
the Trinity River fishery. The disaster was caused by severely reduced
Klamath/Trinity River fall Chinook fish populations.
Decades of bipartisan effort by our Tribe and many others,
supported by past and present members of Congress and successive
Administrations, has produced critical legislation intended to restore
our river and the natural environments elsewhere in California that
have been severely damaged by the construction and operation of the
CVP. The centerpiece of the restoration effort is the Central Valley
Project Improvement Act (CVPIA) (Public Law 102-575 Title XXXIV,
October 30, 1992, 106 Stat. 4706). The CVPIA establishes environmental
restoration as a CVP project purpose and requires CVP water and power
contractors pay for restoration costs.
My testimony addresses the relationship between the San Joaquin
River restoration program that would be authorized by S. 27 and the
Trinity River restoration program authorized by section 3406(b)(23) of
the CVPIA. We support fishery restoration efforts generally in
California. However, adoption of the San Joaquin River settlement
should not come at the expense of, or in opposition to, the CVPIA's
other environmental restoration provisions, particularly the Trinity
River restoration program which is intended to protect fishery
resources that the United States holds in trust for our Tribe. We are
committed to work with the Department of the Interior and House and
Senate members on a legislative plan that honors the trust
responsibility, secures needed restoration funding, and assures timely
implementation of restoration. We have discussed this with Interior
Department representatives and believe that there is a path to fair and
feasible protection of our tribal trust resources. We urge that S. 27
not be enacted until the legislation along the lines we have described
for the Trinity River is in place.
The 2000 Trinity River Restoration Record of Decision
(ROD)implemented section 3406(b)(23) of the CVPIA. It identified a
suite of actions whose goal is effective restoration of fisheries
critical to the Hoopa Valley Tribe and the economic stability of the
fisher-dependent communities of northern California and southern
Oregon. The ROD established an administrative infrastructure including
an inter-governmental management council (Trinity Management Council
(TMC)), and stakeholder advisory group to assist the Secretary with
implementation. However, after six years of implementation, the program
suffers for lack of sufficient funding that has compromised restoration
science and program management.
In 2004, the TMC published its Trinity River Restoration Program
Evaluation, Final Report (29 March 2004). Among its findings were that
ROD implementation was being poorly documented, hindering the ability
to assess the relationships between program outputs and resultant
outcomes. Many of the findings were to be addressed by following
specific recommendations made by a TMC sub-committee in June 2006. In
March, regional officials for the Bureau of Reclamation and the U.S.
Fish and Wildlife Service pledged to provide administrative solutions
for the issues raised in the TMC report.
Chronic under-funding for the Trinity Program undermines that
pledge, however. It has led to delays in construction of habitat
projects; site construction will only be 40% completed relative to the
ROD's benchmark for 2007. Under funding also has compromised collection
of scientific data necessary to support the Adaptive Environmental
Assessment and Management (AEAM) portion of the program mandated by the
ROD. Under funding has stalled development of the Integrated Assessment
Plan (IAP), the cornerstone of the Trinity River restoration science
program's scientific component. Year after year the Tribe has taken
stop gap measures to fund restoration. In the first seven months of
Fiscal Year 2007 alone, the Tribe has advanced approximately $700,000
of its own funds to carry out key scientific components of the
restoration program because funding was not made available by the
Bureau of Reclamation in a timely fashion. In effect, the federal
trustee's decisions not to request adequate funding in the budget
process results in the tribal trust beneficiary assuming a burden that
the CVPIA intended water and power contractors to bear.
We believe that S. 27 will have a substantial impact on the Trinity
River restoration program and the fishery resources that the United
States holds in trust for our tribe. Specifically, the San Joaquin
settlement would affect the financial structure established in the
CVPIA to fund environmental restoration programs identified in that
act. Section 3406(b) identifies 23 discrete environmental restoration
activities, one of which is the Trinity River restoration program,
section 3406(b)(23). The Trinity River restoration program was
developed over the course of decades, adopted by the Secretary of the
Interior with the concurrence of the Hoopa Valley Tribe in 2000, and
judicially confirmed following challenges by CVP water and power
contractors, who now stand to benefit from S. 27 at the expense of
Trinity River restoration.
The linchpins of the CVPIA's financing mechanism for environmental
restoration are appropriations to the Bureau of Reclamation's Water and
Related Resources account and the CVPIA Restoration Fund established by
section 3407 of the CVPIA. The CVPIA identifies a number of revenue
sources to be deposited into the CVPIA Restoration Fund, including
charges assessed to water and power contractors. With respect to the
CVPIA Restoration Fund, the CVPIA requires the Secretary of the
Interior (Secretary) to collect assessments for the CVPIA Restoration
Fund sufficient to make available $50,000,000 annually on a three-year
rolling average basis (October 1992 price levels). Once the fish and
wildlife restoration activities identified in section 3406(b) of the
CVPIA are completed, the three-year rolling average balance in the
CVPIA Restoration Fund is to be reduced to $35,000,000 and the payment
ceiling for water and power users reduced to $15,000,000.
Section 3406(c) of the CVPIA specially provides for the development
of a fishery restoration program for the San Joaquin River between
Friant Dam and the Mendota Pool. During the program's development the
CVPIA directed the Secretary not to release any Friant Division water
for restoration purposes. Instead, the CVPIA imposed a surcharge on
Friant water use, which was deposited into the CVPIA Restoration Fund.
The Friant surcharge and CVPIA Restoration Fund charges paid by CVP
water and power contractors are treated as offsets against, not limits
on, the contractors' cost share obligations created by the CVPIA. See
sections 3407(a) and (b).
The San Joaquin settlement involves litigation that has been
pending for 18 years. Natural Resources Defense Council v. Kirk
Rodgers, Civ. No. S-88-1658-LKKIGGH (E.D. Calif.). Although the
litigation predates enactment of the CVPIA, the proposed settlement is
integrally involved with the CVPIA and would affect the CVPIA's key
provision for financing environmental restoration, including Trinity
River restoration. Nonetheless the Tribe was never given an opportunity
to participate in or even observe the negotiations. Section 7 of the
San Joaquin settlement stipulation, which was filed in federal court in
September 2006, states that it will benefit third parties who use San
Joaquin River or Sacramento-San Joaquin Delta water. Section 7 also
states that the settlement parties have neither the intention nor
belief that the settlement will adversely affect third parties.
However, after the settlement was finalized and made public, the Tribe
raised the funding impact issue and the Department of the Interior
concluded that the San Joaquin settlement will harm third parties
including the Hoopa Valley Tribe and other beneficiaries of the Trinity
River Restoration program by causing annually up to a 25 percent
reduction in funds available from the CVPIA Restoration Fund. This
impact results from the accounting provision in section 7 of S. 27 by
means of which the extended Friant surcharges, though deposited into
the San Joaquin River Restoration Fund, will be credited as if they had
been deposited into the CVPIA Restoration Fund. The CVPIA provides that
upon the termination of the Friant surcharge the water and power
contractors will be obligated to fill the gap in receipts to the CVPIA
Restoration Fund with increased assessments up to the statutory ceiling
in section 3407 of the CVPIA.
Section 7 of S. 27 was included at the behest of some third party
CVP water and power contractors who represented that the CVPIA did not
anticipate the termination of the Friant surcharge and that the
attendant increase in CVPIA Restoration Fund charges to water and power
contractors was inadvertent and unintended. The text of the CVPIA
contradicts that suggestion. Moreover, if financing for CVPIA
environmental restoration is modified according to section 7 of S. 27,
third party CVP contractors will reap a financial windfall and a key
funding feature of the CVPIA's environmental restoration program will
be nullified. The reduction in CVPIA restoration funding that would
result from S. 27 comes at a time when the restoration programs
identified in section 3406(b) of the CVPIA, including the Trinity River
program (3406(b)(23)), are experiencing substantial funding reductions
and substantial delays in implementation. The consequences have been
severe. In some cases, recent budgets have produced funding at less
than 50% of program needs.
The reduction in funding that would be caused by enactment of S. 27
will create a conflict of interest between the Secretary's fiduciary
duty as trustee for tribal fishing rights in the Trinity River and the
interests of water and power contractors in the Friant Division. This
conflict is set forth in the stipulation for settlement of the San
Joaquin litigation. Section 30 states that if any third party
challenges ``the terms and conditions of the settlement, Plaintiffs and
the Friant Parties agree to cooperate with the Federal Defendants in a
vigorous defense of such action as necessary.'' This essentially puts
the United States in opposition to its fiduciary responsibility to the
Hoopa Valley Tribe. Moreover, it requires the federal trustee to stand
in conflict with its tribal beneficiary on an issue of fishery
restoration that also affects thousands of non-Indians who are
dependent on fishing. This commitment by the United States to the San
Joaquin settlement is in direct conflict with judicial conclusions on
the government's duty to Trinity River restoration:
As a part of its harms-balancing analysis, the district court
concluded that ``the government is also in breach of its
general and specific independent federal trust obligation to
the Hoopa and Yurok Tribes.'' Order, 275 F. Supp. 2d at 1232.
It also stated that the purpose of the CVPIA Sec. 3406(b)(23)
was to ``fulfill[] the federal government's trust obligation to
the Indian Tribes.'' Id. at 1234. These statements are
significant in that they provide support for the court's order
implementing portions of the Preferred Alternative as
injunctive relief.
Westlands Water Dist. v. U.S. Dept. of Int., 376 F. 3d 853, 877 (9th
Cir. 2004).
Regarding Pay-As-You-Go (PAYGO), the Tribe understands and support
the concepts of this initiative and its goals of dealing with a
requirement to make the Federal Government operate within its means.
However, I am very concerned that this initiative may have negative and
unintended consequences to fulfilling federal trust obligations that
the United States owes to Indian tribes. This seems to be exactly the
problem that we are experiencing regarding restoring the Trinity River
fishery resources that is required by law. PAYGO effects as they relate
to Indian trust obligations must be kept in the proper context. Water-
related breach of trust issues were almost always the result of
improper exploitation and over allocation of water resources, as in the
case of the Trinity River. There is no doubt that the United States,
the State of California, private water and power contractors and the
citizens of the Nation gained tremendous benefits and wealth from the
diversion of Trinity River flows to California's Central Valley.
Unfortunately, the very Congressionally-mandated standards to protect
the fishery resources of the Trinity River as a condition of diverting
annual flows to the Central Valley were violated year after year by
federally-authorized water diversions. It is clear from the
administrative records of the Trinity River Division that, while
Congress only authorized slightly more than half of the annual flows be
diverted, in fact as much as 90% of the annual flows were diverted to
the Central Valley. Only after decades of studies, Indian legal
challenges and even legal challenges by water and power contractors, in
2000 actions were taken to restore 47% of the annual flows and to carry
out critical habitat restoration activities needed to restore the
fishery to pre-Trinity River Dam levels.
Despite the fact that section 3406(b)(23) is the only Indian trust
provision in the CVPIA and that the ROD approved between the Tribe and
the United States in 2000 identifies a minimum funding level of $14
million annually (in February, the Bureau of Reclamation revised the
funding need to approximately $16.5 million) to fulfill the federal
trust obligations to the Tribe, only half the funding has been made
available for this obligation. Instead, appropriations and funding
generated by Trinity flow diversions has been primarily spent on
activities in the Central Valley. Now, PAYGO seems to be the most
recent excuse not to restore the Trinity River fishery or fulfill the
federal trust obligations to our Tribe. PAYGO was never intended to
become a mechanism to undermine or set aside the Federal Government's
trust obligations to Indian tribes but this seems to be the result. If
PAYGO is applicable to Trinity River fishery restoration activities
then it must be applied based on a standard of providing appropriated
funding for the federal trust obligations first. This is the only way
that the United States can continue to honor and enforce its federal
trust obligations to Indian tribes.
The Subcommittee's attention to this testimony is appreciated. If
you have questions or are in need of further information please contact
me at the above address.
______
Statement of Kole Upton, Chairman, Friant Water Users Authority and
Director, Chowchilla Water District
Madam Chairman and members of the subcommittee, it is an honor and
privilege to appear before this Committee and testify on the San
Joaquin River Restoration Settlement in support of the San Joaquin
River Restoration Settlement Act, S. 27. I am Kole Upton, Chairman of
Friant Water Users Authority, a Director of the Chowchilla Water
District and a family farmer in Merced and Madera counties, California.
My family for decades has relied on, and beneficially used, Central
Valley Project water delivered from Friant Dam to grow food and fiber
for the people of the world.
Along with Mr. Daniel M. Dooley, a partner in Dooley Herr &
Peltzer, LLP, I was a principal negotiator of this Settlement resolving
the 18-year-old lawsuit known as NRDC, et al. v. Rodgers, et al. Mr.
Dooley recently testified before the House of Representatives on this
Settlement and his written testimony is included as part of my written
submission. Mr. Dooley is with me today and is available to respond to
questions regarding the Settlement.
The Friant service area consists of approximately 15,000 mostly
small family farms on nearly one million acres of the most productive
farmland in the world along the southern San Joaquin Valley's East
Side. The Friant Division also has one and one quarter million people
embedded in the cities within its service area. The surface water from
Friant Dam sustains the underground aquifer necessary for continued the
viability of these cities. Friant water is also delivered directly to
some of the cities and towns, such as Fresno, Friant, Orange Cove,
Lindsay, Strathmore, and Terra Bella. The Friant Water Users Authority
consists of 22 of the agencies that receive water from the Friant
Division of the Central Valley Project.
background
Why would negotiators for the Friant service area agree to a
Settlement giving up so much of this precious water and costing society
so much money? I will try to put the situation in the context of the
options available to us.
First, previous negotiations with the coalition of environmental
plaintiffs that initiated the San Joaquin River litigation 18 years
earlier had broken down several years ago. The primary cause from our
perspective was ``lack of certainty.'' For our communities and farms,
it is imperative that we have a reasonable certainty of receiving
enough surface water to grow our crops and sustain our communities. We
were unable to obtain that certainty in the previous negotiations.
Therefore, the case returned to U.S. District Court Judge Lawrence
K. Karlton. He indicated some impatience with the length of time being
taken to resolve this case and scheduled a trial to beginning February
14, 2006. He made several rulings and comments indicating that it was
not a case of whether he would order water released from Friant Dam,
but of how much water. Judge Karlton also ruled that the resulting
fishery must resemble the historic San Joaquin River fishery. This
meant water releases from Friant Dam would, of necessity, have to be
sufficient to maintain a self-sustaining salmon fishery. Our experts
felt this would result in a loss of approximately one third of our
historical supply.
The Judge's opinion affirmed the environmental coalition's position
in the previous failed negotiations in which the plaintiffs were
adamant that the solution to the case required re-establishment of a
salmon fishery. We had suggested an extension downstream of the current
warm water fishery that exists nearly 40 miles below Friant Dam. This
option would have required far less water, and a fraction of the cost
that will be required to re-structure the river for salmon restoration.
However, the environmental coalition rejected this suggestion and the
Judge affirmed its position.
Thus, we prepared to go to trial and find out how bad the judgment
would be. Senator Feinstien and Congressman Radanovich stepped in to
this scenario and suggested we try once more to work out a compromise
with the environmental plaintiffs. They added a condition of
``capping'' required flows as part of the negotiations. Both sides
agreed to the condition, and the negotiations proceeded. What you have
before you today is the product of those efforts.
On September 13, 2006, the Friant Water Users Authority, Natural
Resources Defense Council and U.S. Department of the Interior
cooperatively reached agreement on the San Joaquin River Restoration
Settlement. Congressional action is required to implement the
Settlement.
the settlement agreement
The Settlement Agreement is constructed around two important,
parallel, and equal goals:
<bullet> The Restoration Goal is to restore and maintain a self-
sustaining salmon population below Friant Dam to the confluence
of the Merced River.
<bullet> The Water Management Goal is to reduce or avoid adverse
water supply impacts to all of the Friant Division long-term
water contractors.
Mr. Dooley thoroughly covers both of these goals and the legal
parameters for both in his written comments that are included as an
additional submission with my testimony. Senator Feinstein also
requested our program for mitigation measures and it is also included
as part of my written submission.
I would like to concentrate on the importance of the effective
implementation of the Water Management Goal to the San Joaquin Valley
and its future. There are two parts of the Water Management Goal: One
is re-circulation, and the other is the Recovered Water Account (RWA).
In order for both of these techniques to be effective tools for
mitigating our losses, they must have the full support and commitment
from the appropriate federal agencies and the settling parties. This
must be a long-term commitment that can transcend changes in
administrations and personnel.
It would be of great comfort to our Valley if we could get a
realistic estimate from the appropriate agencies of the approximate
mitigation potential of both of these water management tools. Should
either or both of these tools prove to be ineffective, it may be
necessary to consider more draconian options, such as land fallowing,
in order to achieve salmon restoration without inflicting economic and
social chaos on the communities and residents along the southern San
Joaquin Valley's East Side.
mitigation measures not available
As negotiators for the Friant interests, Mr. Dooley and I are
frequently questioned as to why we ended up with this Settlement, and
why other options were not considered or included. I previously covered
the rejection of the warm water fishery option, and now will address
the other major question--why new surface water storage was not a part
of the Settlement.
Why was a new dam, such as that currently being studied for a site
known as Temperance Flat above Friant Dam and Millerton Lake, not
considered as part of the solution?
Would not such a dam provide significant water for mitigating the
losses? Would not such a dam also provide more cold water for longer
durations enhancing the potential for successful salmon restoration?
Would not a new dam provide drought protection for subsequent year
salmon runs? Would not a new dam provide the flood protection for the
enormous investment society is being asked to make to re-structure the
San Joaquin River for salmon restoration? Would not a new dam provide
additional funding by enabling the government to fulfill existing
contract shortages with water now lost because of the small size of
Friant Dam and Millerton Lake?
In my opinion, the answer to all the above questions is a
resounding, YES! However, the environmental coalition adamantly
rejected this option early in the process and indicated the plaintiffs
would not continue negotiations if we demanded inclusion of a new dam.
conclusion
So, I appear before you today with the only option available to us
other than the expected U.S. District Court ruling from Judge Karlton.
This option requires Congressional implementation. Under the terms of
the Settlement and the subsequent agreement in Senator Feinstein's
office, no change can be made to the Settlement unless there is
unanimous consent by all of the parties.
I urge the Committee to move forward on this legislation. Thank you
for the opportunity to submit written testimony, and I would be happy
to respond to questions.
______
[PRESS RELEASE]
Hon. Grace F. Napolitano, U.S. Representative From California
napolitano commends passage of fiscally responsible budget resolution
addressing historic river restoration
Washington, DC--Rep. Grace F. Napolitano (D-Norwalk) today voted to
approve a 2008 budget resolution through the passage of the conference
report on S. Con. Res. 21. The House and Senate have each now approved
the Budget Resolution Conference Report, laying appropriate groundwork
to begin passage of the necessary budget bills for 2008 and beyond.
``We have passed a budget blueprint that we can be proud of,
providing tax cuts to middle-class families, reducing the deficit,
following `pay as you go' principles, and balancing the budget in just
five years. It invests in the future though innovation in energy
independence, education for our children, and recognition of critical
environmental concerns,'' explained Rep. Napolitano.
Rep. Napolitano, Chair of the House Natural Resources Subcommittee
on Water & Power, is especially pleased that the Budget Resolution
includes language to help ensure the passage of the San Joaquin River
Settlement Act, H.R. 24. Enacting H.R. 24 means that the San Joaquin
River, the second longest river in California, will once again have the
water it needs to support a viable salmon fishery.
The language included in S.Con.Res.21 will make it easier for
Congress to secure funds to pay for the fishery restoration and water
management goals outlined in H.R. 24 by giving Congress more options to
identify where the funding source would come from.
The Democratic Budget resolution passed also includes the
groundwork for the following:
<bullet> Balances the budget in five years.
<bullet> Strengthens our national security with a commitment to
military readiness, historic investments in veterans' health
care, better homeland security, and ending waste, fraud and
abuse at the Defense Department.
<bullet> Provides health care for millions of additional uninsured
children.
<bullet> Increases education funding by 7 percent.
<bullet> Expands renewable energy and energy efficiency to reduce
global warming and dependence on foreign oil.
<bullet> Protects 20 million middle-income American families this
year from a tax increase and makes way for a long-term fix for
the Alternative Minimum Tax (AMT).
<bullet> Accommodates fiscally responsible middle-class tax cuts,
including the child tax credit and marriage penalty relief.
______
[Environment & Energy Daily, May 4, 2007]
Lucy Kafanov, E&E Daily Reporter
water: san joaquin river restoration plan could fall apart, witnesses
warn
California's two senators were joined yesterday by a coalition of
environmentalists, farmers and other parties in urging Congress to pass
legislation that would restore much of California's San Joaquin River
and its threatened spring-run Chinook salmon.
Speaking before a hearing in the Energy and Natural Resources
Committee, witnesses yesterday stressed that speed is of the essence
when it comes to enacting S. 27, which would implement a settlement
agreement reached late last year by the Natural Resources Defense
Council, the Friant Water Users Authority and the departments of
Interior and Commerce that ended 18 years of litigation between farmers
and environmental interests.
``If we do not pass this legislation, and the settlement is not
enacted, then the future of the San Joaquin won't be charted by the
people who use its water,'' said Sen. Dianne Feinstein (D-Calif.), the
author of the bill. ``It will be decided by a judge who will demand
that far more water be released than is envisioned by the current
settlement agreement, with far less certainty on how it will be used.''
In an interview outside the hearing room, NRDC's senior attorney
Hal Candee elaborated on Feinstein's point.
``Any party can dissolve the entire settlement if the legislation
is not passed,'' Candee said. ``But more seriously, if the funding is
not made available . . . the federal government may be constrained in
how much they can start implementing without additional funding.''
Moreover, the state of California made its funding contingent on
Congress passing the bill, Candee said. And the California Legislative
Analyst's Office suggested that state lawmakers zero out all state
funding, even though it has been committed, until Congress acts.
``There is a concern in California that the federal government is
not always a reliable partner,'' Candee added. ``The clear message
coming back from the state Legislature is that if Congress doesn't pass
this by next year, it will be very hard to justify continued state
funding.''
Some initial funding already exists for the federal government to
work with California to initiate planning and environmental review
activities, said Bureau of Reclamation's Assistant Secretary for Water
and Science Mark Limbaugh.
paygo concerns
Feinstein and Rep. George Radanovich (R-Calif.) introduced
identical legislation in the 109th Congress, but lawmakers ran out of
time to move the bill. The House Natural Resources Committee already
looked at Radanovich's H.R. 24, while the Senate Water and Power
Subcommittee took up Feinstein's bill yesterday.
While there has been almost no opposition to the legislation, some
have questioned why passing the legislation is taking so long.
According to one source involved with the agreement, the committees
had meant to take up the bills earlier but were waiting for the
Congressional Budget Office to release its score of the bill amid PAYGO
concerns.
When CBO finally released its analysis last month, it estimated the
legislation would cost the federal government some $500 million over
the next 19 years.
Under House PAYGO rules, which require offsets for increases in
direct spending or decreases in revenue, lawmakers will have to find
$240 million over the next decade to make up for the cost of
implementing this legislation. Specifically, this means finding offsets
for the $217 million in direct spending authorized by S. 27 and $23
million in lost revenues to the government over the same period of
time.
While Limbaugh testified in support of the legislation, Corker
expressed some concern about sustained funding for the agreement,
asking Limbaugh whether the Bush administration is willing to budget
the amounts necessary to see the program through.
``I can't commit to additional budgets, but I can commit to
supporting the terms of the settlement and supporting the authorization
of the settlement through this legislation,'' Limbaugh said.
an 18-year battle
The settlement was filed with the U.S. District Court for the
Eastern District of California in September and requires federal
legislation to become fully effective.
The San Joaquin River historically supported large salmon
populations, but since the late 1940s, approximately 60 miles of the
river have dried up, a trend the settlement-legislation hopes to
reverse. The river's water depth was artificially lowered by the Bureau
of Reclamation's Friant Dam, built in the 1940s to stimulate the San
Joaquin Valley's agricultural growth. But it also dried up portions of
the San Joaquin River in western Merced and Fresno counties and
resulted in a dramatic decline in the salmon population that once
flourished there.
Some 15,000 farms--which grow everything from citrus to tree fruits
to grapes and almonds--rely on the Friant Dam water.
Third-party groups--including the Westlands Water District in
Fresno and the San Joaquin River Exchange Contractors Water Authority--
have expressed concern they would end up footing part of the bill for
river channel improvements if the legislation goes through. Third
parties are also concerned about potential liability under new
Endangered Species Act burdens resulting from the reintroduction of the
threatened spring-run chinook.
The San Joaquin is the state's second longest river and helps
irrigate about 1 million acres of Central Valley farm land. The
Sacramento-San Joaquin River Delta provides drinking water to more than
22 million people.
The settlement proposes restoring 153 miles of the San Joaquin
River from Friant Dam to south of Stockton, requiring water releases in
amounts that will help meet the various life stage needs of spring and
fall run Chinook salmon. This means that the dam could release some
250,000 acre-feet of water in most dry years and more than 500,000 in
wet years. One acre-foot is equivalent to 326,000 gallons, or roughly
enough to meet the annual drinking water needs of five people.
Fishing advocates and environmentalists sued Reclamation in 1988
when water users' contracts came up for renewal. The suit alleged that
Friant contracts violated California Fish and Game code, NEPA and ESA
and sought to divert water from the Friant water users to restore the
river for salmon runs.
______
Sierra Club,
San Francisco, CA, July 20, 2007.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources, U.S. Senate,
Washington, DC.
Dear Senator Bingaman: We are writing to express our strong support
for S. 27, the ``San Joaquin River Restoration Settlement Act,'' and to
urge you to move this bill as quickly as possible to a full Committee
vote and to the Senate floor for final consideration. Enactment of S.
27 will initiate one of the largest environment restoration projects
ever undertaken in the West.
This consensus legislation has widespread and bipartisan support
from federal agencies, state agencies, farmers, conservation groups and
numerous urban and agricultural water districts. The legislation is
needed to authorize and approve a landmark Settlement agreement between
the parties to NRDC v. Rodgers, an eighteen year case concerning the
restoration of flows and native salmon populations to the San Joaquin
River, the second longest river in California.
The settlement was approved by the federal court in October 2006
and the parties have been seeking Congressional authorization since
last fall when the legislation was first introduced by Senators
Feinstein and Boxer and Representatives Radanovich, Pombo, Miller,
Napolitano, Costa and Cardiza. We are very concerned that lack of
congressional action on the measure this summer could significantly
delay implementation of the Settlement and the restoration of flows and
fish in the River, as well as jeopardize over $100 million in State
cost-sharing that has been pledged pending congressional approval of
the Settlement. Further, failure to approve the legislation could
jeopardize the protections currently provided for third parties and
downstream interests that are not fully incorporated into the
Settlement itself but were negotiated by the third parties under the
auspices of Senator Feinstein, Representative Radanovich and others for
inclusion within the authorizing legislation. None of these
requirements will remain in place if S. 27 is not enacted into law.
Many of the Settling Parties and affected third parties were among
the witnesses invited to testify before the Subcommittee on Water and
Power of the Senate Committee on Energy and Natural Resources on May 3,
2007. That hearing reconfirmed the strong, widespread and bipartisan
support for the legislation and included testimony by the State of
California reiterating its commitment of considerably more than $100
million of State funds to help with Settlement implementation once
Congress approves S. 27.
For all of these reasons, we urge you to support and quickly
approve S. 27. Thank you.
Sincerely,
Greg Haegele,
Conservation Director.